Driftwood Hayward Operating Company, LP d/b/a Driftwood Healthcare Center - Hayward, DAB CR5240 (2019)

DECISION

Petitioner, which operates as Driftwood Healthcare Center – Hayward (“Petitioner” or “the facility”), challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with the Medicare program participation requirement that it ensure each resident receives adequate supervision and assistance devices to prevent accidents, as required by 42 C.F.R. § 483.25(d).  Petitioner also challenges the imposition of a per-instance civil money penalty (CMP) of $12,500.  For the reasons discussed below, I affirm CMS’s determination.

I. Background

The Social Security Act (Act) establishes requirements for skilled nursing facility (SNF) participation in the Medicare program and authorizes the Secretary of Health and Human Services (“the Secretary”) to promulgate regulations implementing those statutory

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provisions. See 42 U.S.C. § 1395i-3; 42 C.F.R. pts. 483 and 488.  To participate in the Medicare program, an SNF must maintain substantial compliance with program participation requirements.  In order to be in substantial compliance, an SNF’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  Id.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with participation requirements.  42 U.S.C. § 1395aa(a); 42 C.F.R. §§ 488.10, 488.20.  The Act and its implementing regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  42 U.S.C. § 1395i-3(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  CMS may impose a per-day CMP for the number of days an SNF is not in substantial compliance or a per-instance CMP for each instance of the SNF’s noncompliance.  42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. § 488.430(a).1

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge (ALJ) to challenge the noncompliance finding and enforcement remedy.  42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

The California Department of Public Health (state agency) completed a complaint survey at Petitioner’s facility in Hayward, California, on July 10, 2017, and cited noncompliance with 42 C.F.R. § 483.25(d) (Tag F323, free of accident hazards/supervision/devices), cited at the “G” level of scope and severity.2  CMS Exhibit (Ex.) 1.  In a letter dated

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July 24, 2017, CMS informed Petitioner that it would impose, inter alia, a per-instance CMP of $12,500.  CMS Ex. 2 at 2.

Petitioner timely requested a hearing on September 21, 2017.  Pursuant to my Acknowledgment and Pre-Hearing Order, CMS filed a pre-hearing brief with incorporated motion for summary judgment and 14 proposed exhibits (CMS Exs. 1-14), and Petitioner filed a pre-hearing brief and two proposed exhibits (P. Exs. 1‑2).

CMS, in a February 16, 2018 filing, objected to paragraphs 8, 9, 11, 12, and 13 of the written direct testimony of Kent Chambers, the facility’s administrator, on the basis that the testimony addressed events “at which he was apparently not present . . . .”  For the purpose of summary judgment, I accept this testimony as true.  Further, I note that the disputed testimony does not relate to a disputed material fact.  Therefore, I overrule CMS’s objections and admit CMS Exs. 1-14 and P. Exs. 1-2.

II. Issues

The issues presented are:

Whether summary judgment is appropriate;

Whether Petitioner was in substantial compliance with the Medicare
program participation requirement at 42 C.F.R. § 483.25(d);

If Petitioner was not in substantial compliance, whether a per-instance CMP of $12,500 is reasonable.

III. Discussion

A. Summary judgment is appropriate because material facts are not in dispute.3

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and the moving party is entitled to judgment as a matter of law.  Senior Rehab. & Skilled Nursing Ctr.,DAB No. 2300 at 19-20 (2010), aff’d, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs.,405 F. App’x 820 (5th Cir. 2010); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).  The moving party must show that there are no genuine issues of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law.  Anderson, 477 U.S. at 248.  If the moving party meets its initial burden, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial . . . .’”  Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).  “To defeat an adequately

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supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under governing law.”  Senior Rehab., DAB No. 2300 at 3.  In determining whether there are genuine issues of material fact for hearing, an ALJ must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  Id.

Petitioner does not dispute any of the following material facts cited by CMS in its motion for summary judgment:

• Petitioner’s policy directed that a two-person assist be used when transferring a resident with a mechanical lift such as a Hoyer lift;
• Petitioner’s policy directed that manufacturer’s instructions and recommendations should always be followed, including the number of staff needed for a safe transfer;
• The manufacturer of the Hoyer lift recommended that a two-person assist be used when transferring a resident, but also indicated that one person could properly transfer a resident with the equipment;
• Resident # 2 fell when being transferred by the sole certified nurse assistant (CNA) who was operating the Hoyer lift.

Petitioner argues that summary judgment is inappropriate because “[t]he determination of whether one or two persons were required for the safe use of the Hoyer lift is a genuine issue of fact in this case,” and “there is conflicting evidence as to what was required for proper operation of the Hoyer lift used by Driftwood.”  P. Br. at 6.  However, Petitioner does not dispute that its own policy required a two-person assist when transferring a resident with a mechanical lift, nor does it dispute that the manufacturer recommended that two people perform such a transfer.  The relevant material facts are that Petitioner’s policy mandated that at least two people operate the Hoyer lift, and Petitioner’s policy further directed that the manufacturer’s “instructions and recommendations should always be followed” (with the manufacturer’s recommendation being for a two-person assist).  CMS Ex. 6 at 1.  Petitioner did not present argument, much less evidence, in response to the allegation that it did not comply with its own policy when a CNA transferred Resident # 2 with a Hoyer lift alone at the time Resident # 2 fell and was injured.  Therefore, material facts are not in dispute and summary judgment is appropriate in favor of CMS.4

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B. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) because it did not provide the supervision and assistance devices necessary to prevent a foreseeable accident, and as a result, Resident # 2 was injured when he fell while being transferred from his wheelchair to his bed.

Medicare program requirements include 42 C.F.R. § 483.25, which states that quality of care “is a fundamental principle that applies to all treatment and care provided to facility residents” and that a facility “must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices . . . .”  Subsection 483.25(d) imposes specific obligations upon a facility related to accident hazards and accidents, as follows:

(d) Accidents. The facility must ensure that —

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

The Departmental Appeals Board (DAB) has held that the quality of care regulation5  requires that a facility address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or, where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  Maine Veterans’ Home - Scarborough, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care with respect to preventing accidents). The provisions of section 483.25(d) “come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm.”  Meridian Nursing Ctr., DAB No. 2265 at 10 (2009), aff’d, Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445 (7th Cir. 2010). The DAB has held that the quality of care regulation requires that a facility take “all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.” Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007), citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003) (facility must take “all reasonable precautions against residents’ accidents”), aff’g Woodstock Care Ctr., DAB No. 1726 (2000). Though a facility has the flexibility to

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choose the methods of supervision and assistance used to prevent accidents, it must also “provide supervision and assistance devices that reduce known or foreseeable accident risks to the highest practicable degree, consistent with accepted standards of nursing practice.”  Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017), citing Century Care of Crystal Coast, DAB No. 2076 at 6-7 (2007), aff’d, Century Care of Crystal Coast v. Leavitt, 281 F. App’x 180 (4th Cir. 2008).

I make the following factual findings that will be addressed more fully below:

1. Resident # 2’s care plan indicates that he had total dependence on Petitioner’s staff for self-care tasks, and Petitioner assessed that Resident # 2 was totally dependent on facility staff for transfers.

2. Resident # 2’s care plan indicates that he should be provided a two-person assist with activities of daily living (ADLs) as needed.

3. Resident # 2 required a transfer from his wheelchair to his bed on June 12, 2017.

4. A CNA transferred Resident # 2 by using a mechanical lift by herself and without the aid of a second person.

5. Resident # 2 was injured when he fell during the transfer.

6. Petitioner’s mechanical lift policy directs that mechanical lifts require at least a two-person assist.

7. Petitioner’s mechanical lift policy directs that the manufacturer’s instructions and recommendations should always be followed, to include the number of staff needed to safely transfer a resident.

8. Invacare, the manufacturer of the Hoyer lift, advised that although one assistant is capable of performing a transfer with its lift, it recommended that two assistants be used for all lifting preparation from and transferring to procedures.

Resident # 2, a 73-year-old man, was initially admitted to the facility on December 1, 2016, as a transfer from another facility.  CMS Ex. 5 at 33.  His diagnoses included other abnormalities of breathing, transient alteration of awareness, heart failure, muscle weakness, oropharyngeal dysphagia, chronic pain, major depressive disorder, schizoaffective disorder (bipolar type), anemia, and hypertension.  CMS Ex. 5 at 33.

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On May 5, 2016, Petitioner completed a Minimum Data Set (MDS) assessment in which it documented that Resident # 2 had a Brief Interview for Mental Status (BIMS) score of 14.6  CMS Ex. 5 at 9.  That same day, Petitioner also coded, for purposes of the MDS assessment, that Resident # 2 had “total dependence” for bed mobility, transfers, locomotion on unit, dressing, toilet use, and personal hygiene.7  CMS Ex. 5 at 13.  During the look-back period, Petitioner reported that the most support provided to Resident # 2 for bed mobility, transfers, dressing, eating, toilet use, and personal hygiene was a two‑person assist.  CMS Ex. 5 at 13.

Resident # 2 had a care plan for self-care deficits on a pre-printed form entitled, “EXTENSIVE TO TOTAL ASSISTANCE IN ADLs.”  CMS Ex. 5 at 46.  The form listed as a problem that Resident # 2 required “Total dependence” due to physical limitation and disability.  CMS Ex. 5 at 46.  The pre-printed interventions to address his self-care deficits included “Provide 2 person assist with ADL’s as needed.”  CMS Ex. 5 at 46.

A falls care plan indicated that Resident # 2 was at risk for falls and injury due to anti-hypertensive, anti-depressant, anti-hypnotic, and anti-psychotic medications.  CMS Ex. 5 at 48.  The form referenced various fall risk assessments that indicated Resident # 2 had a “high risk” of falls.8  CMS Ex. 5 at 48.

A January 10, 2017 care area assessment summary report indicated that Petitioner had determined that Resident # 2 required extensive to total assistance from staff to manage his activities of daily living.  CMS Ex. 5 at 30.  With respect to psychotropic medication use, the assessment reported:

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TRIGGERED AS HE IS RECEIVING LEXAPRO FOR [DIAGNOSIS] OF DEPRESSION. HE IS NOT EXHIBITING ANY [SIGNS AND SYMPTOMS] OF DEPRESSION AT THIS TIME. HE [IS] NOTED TO HAVE EPISODES OF REFUSAL TO CARE [SIC] AT TIMES. RISK FACTORS INCLUDE [DIAGNOSIS] OF SCHIZOAFFECTIVE DISORDER. DUE TO USE OF LEXAPRO, UNSTE[ADY] BALANCE AND IMPAIRED SAFETY AWARENESS[.] HE CONT[INUED] TO BE AT RISK FOR FALLS. NO RECENT FALL IS NOTED. STAFF WILL CONT[INUE] TO MAINTAIN SAFETY PRECAUTIONS. WILL CONT[INUE] TO MONITOR [SIDE EFFECTS] OF LEXAPRO.

CMS Ex. 5 at 32 (capitalization in original).

A physical therapy discharge summary indicates that Resident # 2 had a functional deficit of mobility with respect to “chair/bed-to-chair” transfers, explaining:  “Dependent – Helper does ALL of the effort.  Resident does none of the effort to complete the activity.”  CMS Ex. 5 at 53 (capitalization in original).  Petitioner also indicated that Resident # 2 was “dependent (100% assist)” with transfers between a chair and a bed.  CMS Ex. 5 at 53.

On June 12, 2017, a physician evaluated Resident # 2 because a nurse reported that Resident # 2 “has become confused [and] his conversation is incoherent.”  CMS Ex. 5 at 61.  The doctor ordered laboratory testing to rule out a urinary tract infection, and also ordered an electrocardiogram to rule out cardiac ectopy.  CMS Ex. 5 at 61.  In addition, to rule out possible transient ischemic attack, the physician ordered a Carotid Doppler test and a CT scan of the head.  CMS Ex. 5 at 61.  The physician reported that although the nursing note reported incoherent speech, “behavior is controlled.”  CMS Ex. 5 at 61.

A June 12, 2017 9:44 pm observation report initially reported that Resident # 2 had a “recent witness[ed] fall” at approximately 9:00 pm that night.  CMS Ex. 5 at 35-36.  The report stated the following:

[Licensed vocational nurse] called by CNA to room 19 @ 2100pm, 19a [patient] noted on the floor assisted by other CNA, slide from [wheelchair] facing the door, beside 19D bed board on the end, witness[ed] by 19B [patient] and CNA passing the room outside to check [patient]. [A]sked [patient] what [he was] trying to do stated “I was trying to move and then I just slide down”. [Licensed vocational nurse] called

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other co[-]nurse RN SV to assess [patient] from head to toe, [pupils equal, round, reactive to light and accommodation], for pain with [complaint of] 5/10 pain on the [left] side body/arm, and [patient] said he hit his head on the bed board of 19d bed, ask for pain medication given 2 tabs of Norco. [Patient] engaging in unassisted transfer,9  did not use call light or yell for help, call light within reach, do neuro checks for 72hrs, notify MD, [Director of Nursing], about situation . . . requested to sent [sic] out to [emergency room at] [E]den hospital @2300 . . . .

CMS Ex. 5 at 37.  Progress notes indicate that Resident # 2 was diagnosed with a closed fracture of one rib at the hospital, and returned to the facility at approximately 4:25 am.  CMS Ex. 5 at 39; see CMS Ex. 5 at 40 (hospital radiology report listing finding of “minimally displaced posterior lateral left eighth rib fracture” and mild diffuse osteopenia).

On June 13, 2017, Petitioner’s physician authored an “Incident Report” in which he discussed that Resident # 2 had a witnessed fall that resulted in complaints of left rib pain.  CMS Ex. 5 at 62.  Although the physician addressed the rib fracture and discussed that Resident # 2 “likely has some osteopenia which may have contributed to his fracture,” the physician did not address that Resident # 2 hit his head when he fell.  CMS Ex. 5 at 62; see CMS Ex. 5 at 37.

A June 14, 2017 facility record reports that Resident # 2 had a “fall from [a] [H]oyer sling” and with a resulting injury of “rib fracture.”  CMS Ex. 5 at 64.  Petitioner reported that Resident # 2’s functional limitations rendered him unable to stand and in need of a two-person assist and extensive assistance.  CMS Ex. 5 at 64.  Petitioner recommended “[e]ducation,” namely “CNA inservice one on one for proper transfer technique using [H]oyer lift.”10  CMS Ex. 5 at 64.  Petitioner conducted this one-on-one training on August 1, 2017, upon the CNA’s return from her disciplinary suspension, at which time the CNA acknowledged that “[f]urther violation of facilities policies and/or substandard performance may lead to further disciplinary action, up to [and] including termination.”  CMS Ex. 10 at 3; see CMS Ex. 9 at 2 (reporting that the CNA was “suspended pending investigation”); P. Br. at 10 (explaining that the CNA’s suspension was due to her failure to comply with Petitioner’s policies).  The CNA acknowledged that she “understands that

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this 1:1 inservice is a part of her returning to work full-time at [the facility] and will comply with facility policy and procedures of using all [H]oyer lifts.”  CMS Ex. 10 at 3.

In his investigation of Resident # 2’s fall, Petitioner’s administrator, Kent Chambers, reported the following in the conclusion of his report:

Based on staff and residents’ interviews, including thorough records review, Ernestine, CNA, transferred the resident via mechanical lift.  The sling loop came off from the mechanical lift’s hook as resident was moving in the sling (out of excitement from the basketball championship game) during transfer.  Resident slid down from wheelchair and ended up sitting on the footrests with his body leaning towards the left side, legs were extended.  During interview of resident, he indicated that he was excited slipped “and everything was just an accident.”

CMS Ex. 9 at 2.  Mr. Chambers documented Resident # 2’s report that he had “hit the left side of his head and his left torso” against the footboard of another bed in his room, reporting that his “left face and left torso were sore.”  CMS Ex. 9 at 1.  Interestingly, despite the fact that Mr. Chambers was purportedly investigating the circumstances of Resident # 2’s fall and recommending a plan of action, he did not address whether the CNA’s transfer of Resident # 2 with a Hoyer lift by herself was in compliance with Petitioner’s policies.  CMS Ex. 9 at 2; see CMS Ex. 6 at 1.

On June 13, 2017, the same day as he returned from the hospital, one of Petitioner’s nurses prepared the following statement for Resident # 2 in which he appears to take responsibility for his fall:

Resident was in a happy fired up mood due to the Warriors game and insistently wanted to move back to bed, exuberant [at] that time.  Resident was not sure which sling hook snapped, “everything was accidental,” “she was trying to help me and got everyone to help.  I feel good, I’m okay.”  “I guess I was excited.”

CMS Ex. 9 at 3.  Resident # 2 signed the statement.  CMS Ex. 9 at 3.

The manufacturer of the Hoyer lift, Invacare, provided a user manual for operation of its equipment.  CMS Exs. 8; 10 at 4-10.  The manual instructs that “[a]lthough Invacare recommends that two assistants be used for all lifting preparation, transferring from and transferring to procedures, our equipment will permit proper operation by one assistant.”  CMS Ex. 8 at 2.

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Petitioner’s mechanical lift transfers policy states that the purpose of the policy is to safely transfer residents whose functional ability or preference required use of a lift.  CMS Ex. 6 at 1.  The policy explains that the “manufacturer’s instructions and recommendations should always be followed, including the number of staff needed for a safe transfer.” CMS Ex. 6 at 1. Petitioner’s policy directs that “[m]echanical lifts require at least a 2-person assist.”  CMS Ex. 6 at 1.  The mechanical lift operating procedures in Petitioner’s policy provided separate and simultaneous steps to be performed by two different caregivers during the transfer. CMS Ex. 6 at 1-4.  Petitioner’s policy recognizes that cognitive impairment “may affect a resident’s ability to comprehend and follow directions for transfer,” and that “[r]esidents with cognitive impairment may transfer well on some occasions and poorly on other occasions.”11  CMS Ex. 6 at 1.

Petitioner contends that the cited deficiency involving a fall with injury during a mechanical lift transfer does not amount to noncompliance “with federal laws mandating that the resident environment remains as free of accident hazards as is possible and that each resident receives adequate supervision” because “these allegations ignore the reality that some accidents are simply unavoidable.”  P. Br. at 1.  Petitioner argues that Resident # 2 had “excited movements” during his transfer that “caused the sling loop to slide off the lift’s hook,” and that the resident’s “celebratory actions during his transfer were unforeseeable.”  P. Br. at 1-2.

Petitioner deflects responsibility for the fall that resulted in Resident # 2’s hospitalization for a broken rib and repeatedly casts blame on Resident # 2 for the fall.  P. Br. at 2 (stating Resident # 2’s fall was an unavoidable accident); P. Br. at 7-8 (“Resident 2 became very exuberant was moving around a lot due to his excitement over the game” and “[b]ecause of his celebratory physical movements while in the sling, the back left sling loop accidently slid off the Hoyer lift hook . . . ”); P. Br. at 10 (“Resident 2’s fall occurred not because there was a single person operating the lift or because the lift was operated in an improper manner, but because his physical movements accidentally caused the sling loop to slide off the hook.”).  Contrary to Petitioner’s arguments, the evidence shows that Petitioner failed to substantially comply with the requirements of 42 C.F.R. § 483.25(d).

Petitioner acknowledges its own assessment that Resident # 2 was “totally dependent on staff for transfer assistance and required at least two persons to physically assist with the transfer.”  P. Br. at 9, citing CMS Ex. 5 at 13.  The statement of deficiencies cites

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noncompliance with section 483.25(d) based on Petitioner’s failure to adhere to its own policy requirement that a two-person assist is required when using a mechanical lift.  CMS Ex. 1 at 6, citing CMS Ex. 6 at 1.  Likewise, CMS, in its brief, argued that Petitioner’s policy “explicitly recognizes that safe transfers using the mechanical lift require at least a 2-person assist,” and that Petitioner’s “failure to include the required level of assistance to safely transfer Resident 2 by both its own assessments and its mechanical lift policy . . . amounted to a failure to take all reasonable steps to prevent Resident 2’s fall.”  CMS Br. at 11.

Other than in a passing reference in a footnote in which Petitioner addressed its suspension of the CNA who transferred Resident # 2 for violating Petitioner’s mechanical lift policy, Petitioner does not otherwise address CMS’s allegation that its failure to adhere to its own policy is a basis for noncompliance with section 483.25(d).  In its cursory acknowledgment of its noncompliance with its own policy, Petitioner explained that it disciplined the CNA for “her failure to comply with Driftwood’s policies, not federal regulations.”  P. Br. at 10 (emphasis in original).  Identifying its two-person assist policy with mechanical lifts as a “heightened standard,” Petitioner contended that such assistance “is not required by regulation or the lift’s own user manual.”  P. Br. at 10.  Petitioner failed to respond to CMS’s allegation that its failure to adhere to its own policies evidences noncompliance with the quality of care requirement set forth in section 483.25(d).  CMS Br. at 11.

The DAB has explained that “[w]here a facility policy or a resident’s care plan requires staff to take specific measures in caring for a resident, the [DAB] has repeatedly held that those measures reflect the facility’s own determination of what it must do to attain or maintain the resident’s ‘highest practicable physical, mental, and psychosocial well‑being’ as required by the overarching quality-of-care requirement.’” Heritage Plaza Nursing Ctr., DAB No. 2829 at 6, citing Azalea Court, DAB No. 2569 at 9, aff’d Azalea Court v. United States Dep’t of Health & Human Servs., 482 F.App’x 460 (11th Cir. 2012).  Further, the DAB has explained that “[o]nce a facility incorporates the measures that are appropriate to assure that residents receive adequate supervision and assistance devices to prevent accidents . . . the facility is held to follow through on them.”  Heritage Plaza, DAB No. 2829 at 20, citing Lifehouse of Riverside Healthcare Ctr., DAB No. 2774 at 15 (2017).  Although Petitioner is correct that its mechanical lift policy does not have the force of a regulation, it fails to recognize that its policy evidences the minimum amount of assistance that Petitioner had determined was necessary to transfer a resident with a mechanical lift.  Petitioner’s policy, at the outset, unambiguously states that mechanical lift transfers “require at least a 2-person assist,” and Petitioner’s requirement for a two-person assist is elaborated by the policy’s step-by-step transfer procedures to be followed by the “first caregiver” and “second caregiver.”12  CMS Ex. 6.

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Petitioner’s claim that Resident # 2’s fall occurred because “some accidents are simply unavoidable” is unpersuasive and unsupported by the evidence.  P. Br. at 1.  Resident # 2 had a high risk of falls and was totally dependent for transfers, and he had diagnoses of schizoaffective disorder and depression.  CMS Ex. 5 at 13, 48, 59.  And on the very day he fell, he had been seen by a physician because of increased confusion and incoherent speech.  CMS Ex. 5 at 62.  Even though Resident # 2 was “very excited and loud moving” and the CNA had “instructed” him to “calm down so she can transfer him,” the CNA chose to transfer him with a Hoyer lift without any assistance.  CMS Ex. 9 at 2.  Despite a policy requiring that at least two people perform a transfer with a mechanical lift, the CNA opted to transfer a restless, totally dependent, and physically and mentally impaired resident by herself.  The resident fell during the transfer, and Petitioner’s claim that the fall was unavoidable is simply preposterous.

Petitioner also argued that Resident # 2 was “insistent about returning to bed and would not wait any longer,” and that the CNA transferred Resident # 2 herself “to accommodate Resident # 2’s wishes.”  P. Br. at 11.  It is implausible that Resident # 2, who had been reported to be in an exuberant mood, was so insistent of his desire to go to bed that it would be necessary for a CNA to neglect his safety in order to satisfy him.  And even if Resident # 2 was insistent of his desire to go to bed, this is simply no excuse to jeopardize his safety; there is no rational reason why the CNA could not briefly delay the transfer so that she could get someone to assist her.  Petitioner failed to maintain a resident environment that was as free of accident hazards as possible and did not ensure that Resident # 2 received the adequate supervision and assistance devices necessary to prevent an accident with the mechanical lift.  42 C.F.R. § 483.25(d).  Petitioner failed to comply substantially with 42 C.F.R. § 483.25(d).

Petitioner’s obligation under section 483.25(d) is to make sure its residents receive the supervision and assistance devices necessary to prevent accidents.  Petitioner had a mechanical lift transfer policy that should have ensured that Resident # 2 received the necessary supervision and assistance devices to prevent a fall during his transfer.  By disregarding its own policy, Petitioner did not ensure that Resident # 2 received the supervision and assistance devices necessary to prevent the fall that caused him to hit his

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head and fracture a rib.  Petitioner’s failure to adhere to its policy was a failure to comply with the regulatory requirement set forth in section 483.25(d).13

C. A per-instance CMP of $12,500 is a reasonable enforcement remedy for Petitioner’s noncompliance with 42 C.F.R. § 483.25(d).

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, including a CMP.  In determining whether the CMP imposed against Petitioner is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f).  42 C.F.R. § 488.438(e)(3).  These factors include:  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  42 C.F.R. § 488.438(f).  The absence of culpability is not a mitigating factor.  Id.  The factors in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002).  Unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002).

The CMP range at the time of the survey was $2,097 to $20,965, and CMS imposed a CMP of $12,500, which is in the middle of the penalty range.  See 82 Fed. Reg. 9182.  Petitioner does not allege that the CMP is unreasonable, which alone gives reason to sustain it.  Coquina Ctr., DAB No. 1860; 42 C.F.R. §§ 488.404, 488.438(f).  In the absence of any arguments or evidence presented regarding any of the regulatory factors cited above, a per-instance CMP of $12,500 in the middle of the penalty range is entirely

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appropriate for a deficiency involving a fall by a resident that required hospital treatment for a broken rib.  A $12,500 per-instance CMP is entirely reasonable.

IV. Conclusion

For the reasons discussed above, I grant summary judgment in favor of CMS.  There is no genuine dispute of material facts, and I find that the facility was not in substantial compliance with the Medicare participation requirements.  A $12,500 per-instance CMP is reasonable.

• 1. Although 42 C.F.R. § 488.408(d) lists a per-instance CMP range of $1,000 to $10,000, CMP amounts increased, beginning August 1, 2016, for deficiencies cited after November 2, 2015, to “reflect the statutorily mandated amounts and ranges as adjusted for inflation.” See 81 Fed. Reg. 61,538, 61,573-61,574 (Sept. 6, 2016). Based on a subsequent inflation adjustment, the CMP range was $2,097 to $20,965 at the time the deficiency was cited in July 2017. 82 Fed. Reg. 9174, 9182 (Feb. 3, 2017).
• 2. Scope and severity levels are used by CMS and state survey agencies when selecting remedies. The scope and severity level is designated by letters A through L. Pub. 100-7, State Operations Manual, § 7400.5.1 (Factors That Must be Considered When Selecting Remedies), “Assessment Factors Used to Determine the Seriousness of Deficiencies Matrix” (table), https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07.pdf (last visited January 10, 2019); see 42 C.F.R. § 488.408. As relevant here, a scope and severity level of G corresponds to a deficiency that involves actual harm that does not amount to immediate jeopardy.
• 3. Findings of fact and conclusions of law are in bold and italics.
• 4. Because I have granted CMS’s motion for summary judgment, a hearing for the purpose of cross-examination of witnesses is unnecessary.
• 5. Federal nursing home regulations substantially changed beginning on November 28, 2016. 81 Fed. Reg. 68,688 (Oct. 4, 2016). The DAB previously cited 42 C.F.R. § 483.25(h) in its discussions of quality care as it relates to accidents. Although the 2016 regulatory revision retained verbatim language regarding accidents, the provision is now found at 42 C.F.R. § 483.25(d).
• 6. A BIMS score of 14 indicates that the resident is cognitively intact. See Long-Term Care Facility Resident Assessment Instrument (RAI) 3.0 User’s Manual, Ch. 3 (Overview to the Item-by-Item Guide to the MDS 3.0), § C0500 (Summary Score) at C-14, https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/Downloads/MDS-30-RAI-Manual-V113.pdf (herein referred to as “BIMS Summary Score Criteria”) (last visited January 10, 2019).
• 7. The form instructed that “total dependence” should be selected only when the activity required “full staff performance every time during entire 7-day period.” CMS Ex. 5 at 13; see RAI Version 3.0 User’s Manual, § G0110 at G-6 (instruction that “total dependence” is applicable “if there was full staff performance of an activity with no participation by resident for any aspect of the ADL activity and the activity occurred three or more times,” and the resident was “unwilling or unable to perform any part of the activity over the entire 7-day look-back period.”).
• 8. Four fall risks assessments administered in December 2016 and April and May of 2017 assigned a score of 12, indicating a high risk for falls. CMS Ex. 5 at 59.
• 9. The nurse’s report that Resident # 2 fell as a result of an unassisted transfer and his failure to use his call light or ask for help is not supported by any other evidence.
• 10. The CNA signed the following statement in a record of her disciplinary action: “I will never try to transfer a resident on a Hoye[r] lift by myself.” CMS Ex. 10 at 2.
• 11. On the same day as the fall, Resident # 2 was evaluated for symptoms of increased confusion and incoherent speech. CMS Ex. 5 at 61. While I do not make any findings regarding whether Resident # 2 had cognitive impairment, I point out that cognitive impairment is recognized by Petitioner as a factor for consideration in mechanical lift transfers. CMS Ex. 6 at 1.
• 12. Petitioner’s policy defines the role of each person performing the transfer, and it is quite apparent, on the face of the policy, why Petitioner felt that two people, rather than one person, would be needed to “safely facilitate transfers of residents whose functional ability or preference requires use of a lift.” CMS Ex. 6 at 1. For example, the policy directs that “[b]oth caregivers will roll the resident onto back and center of sling,” and that a “series of rolls and repositioning of sling, utilizing both caregivers, may need to occur to obtain position in the center of the sling.” CMS Ex. 6 at 2 (emphasis in original). The policy also directs that “[b]oth caregivers will steady the resident as the lift is being moved” and “[t]he second caregiver will guide the resident’s body while the first caregiver moves the lift.” CMS Ex. 6 at 3.
• 13. While it is unnecessary to separately address CMS’s allegation that Petitioner did not comply with the manufacturer’s instructions for use of the mechanical lift, I note that Petitioner’s policy instructed that “[m]anufacturer’s instructions and recommendations should always be followed, including the number of staff needed for a safe transfer.” CMS Ex. 6 at 1. Although Invacare, the lift manufacturer, indicated that its equipment could be properly operated by one assistant, it “recommends that two assistants be used for all lifting preparation, transferring from and transferring to procedures . . . .” CMS Ex. 8 at 2.