Providence Palos Heights, DAB CR5045 (2018)

DECISION

Petitioner, Providence Palos Heights (“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(h).  Petitioner also challenges the imposition of a civil money penalty (CMP) of $550 per day for the period January 8 through May 6, 2016, and the denial of payment for new admissions (DPNA) from April 8 through May 6, 2016.  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. parts 483 and 488.1  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 the 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).  A per-day CMP may range from either $50 to $3,000 per day for less serious noncompliance, or $3,050 to $10,000 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.2 42 C.F.R. § 488.438(a)(1).  CMS is required to impose a DPNA beginning three months after the date on which the facility is determined not to be in substantial compliance with program participation requirements.  42 U.S.C. § 1395i-3(h)(3)(E); 42 C.F.R. 488.417(b).

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(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

The Illinois Department of Public Health (state agency) completed complaint surveys at Petitioner’s facility in Palos Heights, Illinois, on January 8 and February 8, 2016; a revisit survey on February 25, 2016; and complaint surveys on March 11 and April 4, 2016, at

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which time it cited numerous deficiencies at varying levels of scope and severity.3,4  See CMS Ex. 9.  On April 8, 2016, the survey agency completed separate annual recertification and life safety code (LSC) surveys of Petitioner’s facility.5  CMS Exs. 9, 11.  The state agency determined that Petitioner was not in substantial compliance at surveys on January 8 (CMS Exs. 1, 9), February 8 (CMS Ex. 2), February 25 (CMS Ex. 12), March 11 (CMS Ex. 3), and April 4 (CMS Ex. 5) of 2016, and that it was not in substantial compliance at the time of an April 8, 2016 LSC survey (CMS Ex. 6).  As a result of Petitioner’s continued noncompliance, the state agency informed Petitioner, in a letter dated February 19, 2016, that CMS would impose a DPNA, effective April 8, 2016.  CMS Ex. 29; see CMS Ex. 7.  Subsequently, on April 18, 2016, CMS informed Petitioner, inter alia, that after seven surveys in which Petitioner had continuing noncompliance with program requirements between January 8 and April 4, 2016, the

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DPNA would go into effect on April 8, 2016.  Further, CMS stated it would be imposing a per-day CMP of $550, beginning January 8, 2016, that would continue “until you have made the necessary corrections to achieve substantial compliance with the participation requirements, or your provider agreement is terminated.”  CMS Ex. 9 at 3.  Petitioner ultimately returned to compliance with all requirements except for the LSC requirements, and on May 9, 2016, it submitted a plan of correction in which it reported that the last remaining LSC deficiency had a date of correction of May 7, 2016.  CMS Ex. 28 at 5.  On July 20, 2016, CMS notified Petitioner that it had imposed a per-day CMP of $550 from January 8 through May 6, 2016, and that a DPNA had been in effect from April 8 through May 6, 2016.  CMS Ex. 11 at 1-2.

Based on the multiple notice letters issued during the course of the survey cycle, Petitioner submitted two requests for hearing that were separately docketed.  I granted Petitioner’s request that its hearing requests be consolidated, and this decision encompasses the appeal originally docketed as C-16-589, along with the appeal docketed as C-16-626.

Pursuant to my Acknowledgment and Pre-Hearing Order (Pre-Hearing Order), CMS filed a pre-hearing brief (CMS Br.) and 33 proposed exhibits (CMS Exs. 1-33) on September 13, 2016.  On October 18, 2016, Petitioner filed a pre-hearing brief (P. Br.) and 21 proposed exhibits (P. Exs. 1-21).

In an Order dated February 22, 2017, I ruled on the parties’ pending objections to exhibits and witnesses, at which time I ruled that P. Exs. 13, 14, 15, 20, and 21 would not be admitted into the evidentiary record.

I convened a hearing on March 6, 2017 for the purpose of allowing CMS to cross-examine Jan Boger, RN, Petitioner’s Director of Nursing (DON).  See Pre-Hearing Order, §§ 8, 9, 10 (addressing that a hearing is for the purpose of cross-examination of witnesses).  Following Petitioner’s withdrawal of P. Exs. 7 and 11, I admitted CMS Exs. 1-33 and P. Exs. 1-6, 8-10, 12, and 16-19.  Transcript (Tr.) at 10-11.  I have also admitted CMS Ex. 34 into the record.6  The parties submitted post-hearing briefs (P. Post-Hrg. Br., CMS Post-Hrg. Br.) and reply briefs (P. Post-Hrg. Reply, CMS Post-Hrg. Reply).

II.  Issues

The issues presented are:

Whether Petitioner was in substantial compliance with the Medicare

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program participation requirement at 42 C.F.R. § 483.25(h) at the time that deficiency was cited during the February 25, 2016 survey;

Whether, from January 8 through May 6, 2016, Petitioner was out of substantial compliance with program participation requirements;

If Petitioner was not in substantial compliance, whether a per-day CMP of $550 is reasonable; and,

If Petitioner was not in substantial compliance, whether a DPNA from April 8 through May 6, 2016, is reasonable.

III.  Discussion7

A.  Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h) because its staff left Resident # 3 unattended while she was toileting, and in doing so, Petitioner failed to provide Resident # 3 with adequate supervision to protect her from foreseeable risks of harm.

Factual Background

Resident # 3, a 92-year-old female, was admitted to the facility on August 22, 2015.  CMS Exs. 18 at 30, 19 at 6.  Resident # 3’s medical history included diagnoses of difficulty walking, artificial hip joint with prior left femur fracture, osteoarthritis, polyarthritis, dysphagia, hypertension, long term use of anticoagulants, low back pain, depression, and anxiety.  CMS Exs. 18 at 30; 19 at 12.  Clinical notes authored by a speech and language pathologist in September 2015 document that Resident # 3 “demonstrated cognitive deficits, with difficulty in the area of short term memory, reasoning,” and that while she could follow simple directives, there was a “[b]reakdown on longer information.”  P. Ex. 3 at 1.

An October 31, 2015 clinical record documents that Resident # 3 informed a certified nurse aide (CNA) that she fell when another CNA put her to bed.  Petitioner recorded “[n]o bruise at this time” and that it notified Resident # 3’s physician and her family.  P. Ex. 3 at 4.

The facility updated Resident # 3’s care plan on November 25, 2015, at which time it directed that Resident # 3 required the “extensive assistance” of two persons when transferring from a bed, chair, wheelchair, and standing position, and “will complete transfers with the assistance of 2 person[s] with gait belt as required” for transfers to and from her bed, chair, wheelchair, and standing position. CMS Ex. 18 at 32. The facility

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also determined that Resident # 3 “requires assist with ambulation due to decrease[d] standing balance[,] decrease[d] muscle streng[th,] general weakness and unsteady gait related to [diagnosis of] polyarthritis late effects [of cerebrovascular] disease [and] cardiac pacemaker.”  CMS Ex. 18 at 33.  A goal was for Resident # 3 to “ambulate using a wheelwalker with 2 persons assistance [for] 90 feet with 1 person bringing wheelchair behind.”  CMS Ex. 18 at 33.  Interventions for this goal included using a gait belt, assisting Resident # 3 to “stand and maintain standing balance,” and for Resident # 3 “to take small slow steps.”  CMS Ex. 18 at 33.  With respect to toileting, Resident # 3’s care plan does not address her need for assistance with transfers.  CMS Ex. 18 at 40.  However, the care plan reported that Resident # 3 required “the assistance of [one] person as required” for toileting.  CMS Ex. 18 at 33.  Resident # 3’s care plan reports, as a problem, that she “doesn’t hear well, but she is able to participate well when close enough to hear everything,” but lists no interventions with respect to her hearing loss, such as speaking loudly or having Resident # 3 verbalize an understanding of what she has heard.  CMS Ex. 18 at 34.

The facility assessed Resident # 3’s functional status when it conducted a Minimum Data Set on November 29, 2016.  CMS Ex. 19 at 10-11.  At the time of the assessment, Resident # 3 required extensive assistance, to include weight-bearing support, when toileting and transferring.  CMS Ex. 19 at 10.  With respect to balance during transitions and walking, Resident # 3 was not steady and “only able to stabilize with staff assistance” when moving from seated to standing position, when walking with an assistive device, turning around, moving on and off the toilet, and performing a surface-to-surface transfer.  CMS Ex. 19 at 11 (emphasis in original).  The assessment reported that Resident # 3 normally used a walker and wheelchair.  CMS Ex. 19 at 11.

A Fall Risk Assessment dated November 30, 2015, described Resident # 3’s level of consciousness/mental status as “intermittent confused.”  The assessment reported that, with respect to “Ambulation/Elimination,” Resident # 3 was “chairbound” and needed assistance with elimination.  CMS Ex. 19 at 4.  The assessment also reported that Resident # 3 had “Problem walking [and] Requires use of device(s):  furniture, cane, wheelchair, walker.”  CMS Ex. 19 at 4.  The assessment reported that Resident # 3 had no falls in the previous three months.8  CMS Ex. 19 at 4.  Based on the facility’s evaluation of several factors, the facility assigned Resident # 3 a fall risk score of 12, which meant she was at risk for falls and required fall precautions.9  CMS Ex. 19 at 4.

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The facility also completed a Functional Needs Assessment on November 30, 2015, that indicated Resident # 3 was “[n]on-[a]mbulatory,” had “poor” sitting balance,10“fair” standing balance, and required “maximum assistance” for transfers.  CMS Ex. 19 at 5.

Petitioner had a “Client Care Guide” for Resident # 3, effective January 25, 2016.  CMS Ex. 19 at 1; see CMS Ex. 16 at 8 (statement by the DON that CNAs check the Client Care Guide before transferring a resident).  Petitioner’s staff referenced the care guide.  See CMS Ex. 16 at 13 (CNA’s statement that she checked Resident # 3’s care client care guide at the beginning of her shift).  The care guide included the following care instructions for Resident # 3:

Mobility:  “Extensive Assist Wheel Chair”
Transfers:  “Extensive Assist Gait Belt 2 Person Assist”
Toileting:  “Extensive Assist”
Cognitive status:  “Moderately Impaired”

CMS Ex. 19 at 1.  Although Resident # 3’s most recent falls assessment reported a score of 12, which corresponds to a fall risk based on a score that is above 10 (CMS Ex. 19 at 4), the Client Care Guide reported Resident’s 3’s fall risk score was 9, which does not correspond to a risk for falls.  CMS Ex. 19 at 1.

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A January 14, 2016 physician examination report documents that Resident # 3 is “hard of hearing.”11  P. Ex. 3 at 7.

At approximately 7:00 pm on January 31, 2016, two CNAs (S. Akyaa and M. Kruse) assisted Resident # 3 to the toilet.12 CMS Ex. 16 at 3-4, 13-14.  Ms. Akyaa13 then left Resident # 3 and went into another room to assist another resident, and asked Ms. Kruse to help her with the other resident, leaving Resident # 3 on the toilet alone.  CMS Ex. 16 at 3, 13.  Ms. Kruse reports that both remained in the other resident’s room for “5 – 6 min[utes]” (CMS Ex. 16 at 4), and Ms. Akyaa similarly reported that she “was next door [for approximately 5 minutes] putting that other res[ident] to bed.”  CMS Ex. 16 at 14.  Ms. Kruse reports that Ms. Akyaa told Resident # 3 to pull her call light when she was finished.  CMS Ex. 16 at 3-4.  At 7:13 pm, Resident # 3 “was visually observed on [the] floor near [the] toilet.”  P. Ex. 3 at 7.  In response to a question of “what happened,” Resident # 3 responded that she was trying to get off the toilet by herself.  P. Ex. 3 at 7.  Licensed Practical Nurse (LPN) M. Henry then instructed Resident # 3 “on the [i]mportance of calling for assistance for safety precaution,” which appears to immediately cast blame on Resident # 3 for her fall.  P. Ex. 3 at 7.  A portable x-ray revealed an “[a]cute displaced fracture of the femoral neck.”  CMS Ex. 20 at 2.  The facility transferred Resident # 3 to an acute care hospital that same evening.  CMS Ex. 21 at 7.  Resident # 3 had right hip bipolar arthroplasty on February 1, 2016, and she was discharged from the hospital on February 4, 2016.  CMS Ex. 21 at 1-2.  Resident # 3’s discharge transfer form notes that, with respect to cognitive/emotional status, she is “forgetful.”  CMS Ex. 21 at 2.

The day after Resident # 3 fell and fractured her hip, Petitioner completed an incident report and notified the state agency.  CMS Exs. 20 at 5-6; 25 at 1.  Petitioner conducted in-service training on February 1, 2016, and its director of CNAs led the training and the DON authorized the training.  Tr. 26, 30; CMS Ex. 23 at 3-4.  The in-service training included instructions that staff should “never leave a client [with] poor trunk control or

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that requires [extensive assistance] unattended in [bathroom] or sitting on edge of bed.”14  CMS Ex. 23 at 4.

Ms. Pardle, LPN, a restorative nurse, reported to the surveyor that she reviews all fall occurrences and that, following Resident # 3’s fall, she “reminded [S. Akyaa] not to put someone on [the] toilet and leave them there” and “to stand by during toileting . . . .”   CMS Ex. 16 at 1.  The DON, Ms. Boger, informed the surveyor that Resident # 3 was known to require a two-person assist per Petitioner’s Client Care Guide and that its CNAs check the Client Care Guide before transferring residents.  CMS Ex. 16 at 8.  Ms. Boger further explained that Ms. Akyaa “[should] not have left [Resident # 3] alone on [the] toilet, as res[ident] was a known 2 person assist to transfer as resident is weak and elderly.”15 CMS Ex. 16 at 8.  Ms. Boger reported that Ms. Akyaa “received discipline

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regarding leaving res[ident] alone on toilet & a 3 day suspension.”  CMS Ex. 16 at 8; see CMS Ex. 24.  Ms. Boger also explained that Ms. Akyaa had “recently received inservicing on having the correct [number] of staff to transfer [a resident ] [and] not to leave res[idents] alone on the toilet.”  CMS Ex. 16 at 8; see CMS Ex. 24 at 3-4.

On February 5, 2016, Ms. Akyaa’s supervisor issued a corrective action notice for rule violations to Ms. Akyaa and imposed a three-day suspension.  CMS Ex. 24.  The notice informed Ms. Akyaa that based on the fact that she “left a resident that required extensive assistance unattended in the bathroom which resulted in a fall with injury,” Ms. Akyaa had violated rules for “[u]nsatisfactory job performance” and “[n]on-compliance with our culture of safety environment.”  CMS Ex. 24.  In addition to the three-day suspension, the notice informed Ms. Akyaa that she would be given training “on the importance of not leav[ing] residents that require extensive assistance in the bathroom unattended.”  CMS Ex. 24.

On April 8, 2016, a separate survey team conducted an annual LSC certification survey (CMS Ex. 27; see P. 3, footnote 5).  Shortly thereafter, on April 18, 2016, the state agency issued a letter in which it provided written notice of eight deficiencies.  CMS Ex. 8, citing CMS Ex. 6.  The letter informed Petitioner of the procedure for requesting an annual or temporary waiver of LSC requirements.  CMS Ex. 8 at 2-3.  The letter also informed Petitioner that no additional remedies would be imposed, but that “all remedies proposed, recommended or imposed in the ‘Initial Notice’ and any subsequent notices will continue in effect.”  CMS Ex. 8 at 1.

Petitioner submitted a plan of correction for the LSC deficiencies dated April 27, 2016, that was received on Thursday, April 28, 2016, at which time it submitted temporary waiver requests for each of the deficiencies.  P. Ex. 18.  On Monday, May 2, 2016, a state agency employee informed Petitioner, via email, that it required a revised plan of correction, stating:

You have sent a temporary waiver request for each tag that was written.  Temporary waivers are only given out if a significant amount of time (at least 90 days from the date of survey) can be substantiated.  Because all your expiration dates are for June 30th, well below 90 days, these temporary waivers are not going to be approved.  Please revised [sic] the [plan of correction] to include completion dates for each tag.

P. Ex. 17.

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Petitioner submitted another plan of correction dated May 9, 2016, at which time it submitted a temporary waiver request for only the LSC requirement cited as Tag K145 (essential electrical system, cited at the “F” level of scope and severity) until August 1, 2016.  CMS Ex. 28 at 10.  The state agency granted the temporary waiver request on May 11, 2016.  CMS Ex. 33.  With respect to another deficiency cited under Tag K038 (exit access, cited at the “E” level of scope and severity), Petitioner reported that corrective action would be completed on May 6, 2016.  CMS Ex. 28 at 7.  On May 25, 2016, the state agency informed Petitioner that it had returned to compliance with all requirements, to include LSC requirements, effective May 7, 2016.  CMS Ex. 10 at 1.

Facility policies

Petitioner has a lifts and safe client movement policy.  CMS Ex. 22 at 1-2.  That policy directs that staff “shall support a ‘culture of safety’” and that “[i]t is the responsibility of the employee to follow the transfer method indicated in the plan of care.”  CMS Ex. 22 at 1-2.  Petitioner also has a falls reduction policy directing that fall precautions may include: “identification of the client at risk for falls, a fall management plan recommending safety measures such as bed or chair alarms, close monitoring, frequent reminders of safety, low bed, floor mats, hipsters, family at bedside, sitters, and/or therapy or exercise to address changing physical abilities or other interventions.”  CMS Ex. 22 at 4.  The policy further explains that falls “are reviewed as they occur in an attempt to ‘drill down’ to a root cause.”  CMS Ex. 22 at 4.

Relevant authority

Medicare program requirements include 42 C.F.R. § 483.25, which states that “[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.”  Subsection 483.25(h) imposes specific obligations upon a facility related to accident hazards and accidents, as follows:

(h)  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 subsection 483.25(h)(1) 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

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possible.”  Maine Veterans’ Home - Scarborough, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care in section 483.25(h)(1)).  The provisions of section 483.25(h) “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 9 (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 subsection 483.25(h)(2) 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 11 (2007), citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003) (facility must take “all reasonable precautions against residents’ accidents”), affirming, Woodstock Care Ctr., DAB No. 1726 (2000).  Though a facility has the flexibility to 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).

Pursuant to 42 U.S.C. § 1395i-3(d)(2)(B)(i), CMS “may waive” specific LSC provisions that may cause “unreasonable hardship on the facility.”  Likewise, and in accordance with 42 C.F.R. § 483.90(a)(2), a state agency may waive LSC provisions “which would result in unreasonable hardship upon a long-term care facility, but only if the waiver will not adversely affect the health and safety of the residents.”  The State Operations Manual (SOM) also provides guidance regarding waivers.  CMS Pub. 100-7, Ch. 7, § 7410.6 (Rev. 63, Issued 9-10-10).  In particular, the SOM instructs that a temporary waiver “may be considered for a finding for which corrective action will take more than 90 days to complete,” and explains that temporary waivers may be granted for a reasonable period of time for construction activities.  Id., at § 7410.6.1.

Analysis

Despite the fact that Resident # 3 was at risk for falls and required extensive assistance with transfers and toileting, had poor sitting balance, and also had cognitive deficits, Petitioner failed to provide her with adequate supervision when its staff left her unattended on the toilet alone for at least five minutes.  Resident # 3’s fall was foreseeable.

Petitioner argues that its staff adequately supervised Resident # 3 and her fall was not foreseeable.  P. Br. at 13.  Petitioner argues that during her stay at the facility, Resident # 3 had never fallen, had not tried to stand up or transfer on her own, and had never failed to ask staff for assistance with transfers.  P. Br. at 3.  Petitioner contends further that it properly balanced Resident # 3’s right to receive adequate supervision with her right to have privacy while toileting.  P. Br. at 5.  Petitioner argues that it was not

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reasonably foreseeable that Resident # 3 “would for the first time try to stand up on her own without first having asked staff for help.”  P. Reply at 4.  However, Petitioner fails to reconcile that even if Resident # 3 acted differently than normal, the evidence supports that the facility also deviated from the usual toileting procedure by leaving Resident # 3 unattended on the toilet.  See CMS Ex. 16 at 4 (Ms. Kruse’s statement that “we would be outside the [bathroom] door by her [bathroom] waiting to assist her when done”);  CMS Ex. 16 at 14 (Ms. Akyaa’s statement that “[t]his was the [first] time I left res[ident] to go into the room next door.”).

The evidence supports that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(h) when it left Resident # 3 unattended on the toilet for at least five minutes, if not longer.  Petitioner did not take reasonable steps to protect Resident # 3 from a foreseeable accident involving a fall.  Contrary to Petitioner’s assertions, Petitioner not only exposed Resident # 3 to a foreseeable risk of harm, and but she suffered actual harm as a result of her broken hip.

Petitioner concedes that Resident # 3 was at risk for falls.  P. Br. at 3; P. Post-Hrg. Br. at 3.  Petitioner also acknowledges Resident # 3 “needed a two person assist on an off the toilet.”  P. Br. at 3; see P. Post-Hrg. Br. at 5.  Petitioner explained that the two CNAs who cared for Resident # 3 on January 31, 2016, Ms. Akyaa and Ms. Kruse, regularly transferred her on and off the toilet and that both were aware that Resident # 3 “was a two person assist on and of [sic] the toilet.”  P. Br. at 9.

Given Resident # 3’s risk for falls (CMS Ex. 19 at 4), unsteadiness (CMS Ex. 18 at 33), poor sitting balance (CMS Ex. 19 at 5), and need for two staff members to assist with transfers (CMS Ex. 18 at 32), Petitioner knew or should have known that she was at risk for falling if she attempted to get up from the toilet without any assistance.  The fact that Petitioner believed Resident # 3 had not fallen at the facility prior to January 31, 2016, does not excuse Petitioner’s failure to protect her from such a foreseeable accident.16 Likewise, even though Petitioner seemingly blamed Resident # 3 for not using her call light (P. Br. at 10-11; P. Ex. 3 at 7), Resident # 3’s care plan does not include any intervention or goal that Resident # 3 will call for assistance or use the call light in order to obtain assistance in transferring off the toilet.17  CMS Ex. 18 at 40.  It is significant

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that Resident # 3’s care plan lacks any such intervention or goal, being that the care plan required staff to remind Resident # 3 to use her call light to call for assistance before going to the toilet.  CMS Ex. 18 at 40.  Not only is it unclear why a care plan intervention to remind Resident # 3 to call for assistance would be necessary unless Resident # 3 needed to be reminded to ask for assistance before using the toilet, it is likewise puzzling why the care plan does not direct that she should be reminded to call for the same assistance when she finishes using the toilet.  In fact, Resident # 3 had cognitive deficits and memory impairment.  P. Ex. 3 at 1; CMS Ex. 19 at 1.  Thus, even if Resident # 3, who had hearing deficits (see P. Ex. 7 at 4), heard the instruction to use her call light when the CNAs left her unattended on the toilet, it is unclear whether she would remember to wait for someone to come from another room to help her when she would have expected that someone would be waiting outside the bathroom door to help her.  See CMS Ex. 16 at 4, 14.

The DAB “has repeatedly held that section 483.25(h) obligates a facility to take “all reasonable steps to ensure that a resident receives supervision and assistive devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017), citing Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007), citing Woodstock Care Ctr., 363 F.3d 583, 590 (6th Cir. 2003), affirming Woodstock Care Ctr., DAB No. 1726 (2000).  The DAB has also explained:

For a risk to be foreseeable, it need not have been made obvious by having already materialized.  The regulation speaks in terms of ensuring that what is "practicable" and "possible" to do is done.  What is thus required of facilities is not prescience but reason and professional judgment in assessing what can be done to make residents (given their special needs) safe, through removing accident hazards, providing appropriate devices, and ensuring adequate supervision.

Josephine Sunset Home, DAB No. 1908 at 14-15 (2004).

Petitioner risked Resident # 3’s safety when its staff transferred her to the toilet and then left her room because leaving Resident # 3 unattended on the toilet created a foreseeable risk that Resident # 3, a cognitively impaired resident, would attempt to stand or get off the toilet unassisted, despite her significant physical limitations.  Further, in the absence of two staff members close by to give her the required assistance, the possibility that Resident # 3 would fall and suffer an injury was reasonably foreseeable.  By leaving Resident # 3 unattended while she was toileting, Petitioner did not adequately protect her from the possibility of harm from a foreseeable accident due to a fall.

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Petitioner argues that the CNAs who cared for Resident # 3 acted appropriately in leaving Resident # 3 alone because she had a “well-known history of asking for privacy while using the toilet.”  P. Post-Hrg. Reply at 7.  Petitioner points to written testimony by other staff that Resident # 3 always wanted others to leave the bathroom so she could have privacy.  P. Post-Hrg. Reply at 6 (citing P. Exs. 5, 6).  In Petitioner’s view, it “correctly balanced” Resident # 3’s desire for privacy when toileting with her need for assistance when transferring from the toilet.  P. Post-Hrg. Reply at 6.

As CMS points out, there is no documentation, such as a care plan or progress notes, to substantiate that Resident # 3 requested privacy.  Nevertheless, I will accept the testimony from Petitioner’s staff that Resident # 3 desired privacy; in fact, basic human nature dictates that a person would wish for privacy when using the toilet.  However, in this situation, I reject Petitioner’s argument that Ms. Akyaa and Ms. Kruse were balancing Resident # 3’s privacy and safety interests when they left her unattended.  Petitioner’s staff did not merely stand outside the door, but rather, the staff were “multi-tasking,” dropping Resident # 3 off on the toilet and proceeding to put another resident to bed in another room.  While the end result of staff leaving Resident # 3 alone while they cared for the other resident afforded Resident # 3 the privacy she may have desired, Petitioner could have offered Resident # 3 privacy the way it usually did by having its staff stand by her bathroom door.  See CMS Ex. 16 at 4 (statement by Ms. Kruse that “we would be outside the [bathroom] door by her [bathroom] waiting to assist her when done.”); CMS Ex. 16 at 14 (statement by Ms. Akyaa that “[t]his was 1st time I left res[ident] to go into the room next door”).  Thus, it is evident that the CNAs had a practice of providing Resident # 3 privacy by remaining nearby outside the bathroom door and would wait to provide Resident # 3 assistance in getting off the toilet, rather than requiring Resident # 3 to remain on the toilet waiting for the CNAs to finish caring for other residents. 
 
According to Petitioner, the CNAs left Resident # 3 to transfer a resident in the next room.  Petitioner claims that they had to make a judgment call as to whether or not to leave Resident # 3 to assist the other resident, contending;

Ms. Akyaa therefore had to make the kind of immediate judgment that nurses and CNAs are asked to make dozens of times a day, based upon a resident’s objective assessments and nurses’ and CNAs’ objective history in caring for such a resident: Ms. Akyaa could either tell R3 that she’d be back in a minute, remind her again to use the call light when done, and go help Ms. Kruse prevent JK from transferring on his own and possibly falling (something JK had a known history of doing), or Ms. Akyaa could leave Ms. Kruse to fend for herself, take the risk that JK would fall again, and continue to stand outside R3’s closed bathroom door on the chance that R3 would do something that she had never done before and try to stand up

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on her own without first using the call light. (CMS Ex. 16 at pp 3-4, 13-14; CMS Ex. 25 at p. 2; P. Ex. 9 at pp. 5-9).

P. Post-Hrg Br. at 13.  I reject Petitioners’ proposition that the CNAs’ decision of whether they should provide a resident with the assistance she requires is a judgment call.  Petitioner’s staff would not have had to make such a “judgment call” if sufficient staffing was present for it to assist one resident with toileting while other staff could be available to assist another resident at the same time.  In fact, after staff found Resident # 3 on the bathroom floor, other nurses were available to assist.  CMS Ex. 25 at 4. The CNAs assisting Resident # 3 left her alone for reasons unrelated to accommodating her desire for privacy, and she was not left alone in such an unsafe manner for the sole reason of protecting her need for privacy.  See Rosewood Care Ctr. of Edwardsville, DAB No 1898 (2003) (upholding ALJ’s rejection of a facility’s argument that it had been “‘[s]triking a proper balance between privacy and supervision’” when it left a resident unattended on a toilet, and upholding the ALJ’s determination that the facility’s privacy argument was “‘poorly concocted in the aftermath.’”).  As the record shows, the CNAs only returned to care for Resident # 3 after they heard her cries after her fall.  CMS Ex. 16 at 7, 14.

Moreover, Petitioner’s director of CNAs contemporaneously recognized that a CNA “left a resident that required extensive assistance unattended in the bathroom which resulted in a fall with injury,” and imposed a three-day suspension of the CNA for “[u]nsatisfactory job performance” and “[n]on-compliance with our culture of safety environment.”  CMS Ex. 24.  Ms. Boger, the DON, similarly acknowledged that the CNA “[should] not have left [Resident # 3] alone on toilet, as res[ident] was a known 2 person assist to transfer as resident is weak and elderly.”  CMS Ex. 16 at 8.  Although Ms. Boger subsequently opined that Petitioner should not have disciplined the CNA (CMS Ex. 34, March 15, 2016 statement of Ms. Boger), it is difficult to view this striking turn-around as anything but a self-serving attempt by Petitioner to disavow itself of responsibility for Resident # 3’s fall and resulting injury, and the consequences thereof.  And regardless of Ms. Boger’s opinion or whether the CNAs made the best choice under the circumstances, neither absolves Petitioner of operating in a manner in which its CNAs had to choose between providing necessary care to multiple residents at the same time.  See P. Post-Hrg. Reply at 12 (Petitioner’s discussion of the choices its staff had to make in determining which resident’s care needs should be prioritized).

Petitioner also blamed Resident # 3 for her injury, immediately obtaining an apology from her after it reminded her of the importance of using her call button.18  P. Ex. 3 at 7.  Pointing out Resident #3’s apology, Petitioner argues that Resident # 3 contributed to her

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fall because she tried to get off the toilet without assistance.  P. Post-Hrg. Br. at 14; P. Post-Hrg. Reply at 12; see CMS Ex. 16 at 4, 5, 7-8, 14; CMS Ex. 25 at 4.  Regardless of whether Resident # 3, who is physically and cognitively impaired, was made to feel she was at fault for her fall, Petitioner is the one who had an affirmative duty under the regulations to ensure that she received adequate supervision and assistance devices. Petitioner failed to protect Resident # 3 from a foreseeable accident when it did not provide her with adequate supervision while she toileted.  As a result of being left unattended on the toilet, Resident # 3 fell and broke her right femur.  I conclude that Petitioner failed to comply substantially with 42 C.F.R. § 483.25(h).

B.  CMS’s denial of Petitioner’s requests for a temporary waiver for seven of the eight LSC deficiencies cited during the April 8, 2016 LSC survey is not an appealable initial determination.

With respect to the April 8, 2016 LSC survey, Petitioner challenges CMS’s decision to deny its requests for a temporary waiver for seven of the eight cited LSC deficiencies.  Petitioner argues that “[t]he relevant statute, 42 U.S.C.§1395i-3(d)(2)(B)(i), the relevant regulation, 42 CFR § 483.70(a)(ii)(2), and the relevant portion of the State Operations Manual, at Chapter 7, § 7410.6, all provide for Temporary Waivers of LSC deficiencies which, if rigidly applied, would result in unreasonable hardship upon the facility, and state that such Temporary Waivers should be granted as long as patient health and safety are not adversely affected.”  P. Br. at 17.  Petitioner also requests that I reconsider my February 22, 2017 ruling excluding P. Exs. 15, 20, and 21.19

A provider such as Petitioner has a right to a hearing before an ALJ when CMS has “made an adverse ‘initial determination’ of a kind specified in 42 C.F.R. § 498.3(b).”  Columbus Park Nursing and Rehab. Ctr., DAB No. 2316 at 6 (2010); see also 42 C.F.R. § 498.3(a)(1).  A provider such as petitioner that is dissatisfied with an initial determination is entitled to review of that determination by an administrative law judge, but is not entitled to review of other actions that have not been the subject of an initial determination.  42 C.F.R. § 498.3(a).  As previously explained, CMS’s refusal to grant a waiver request is not an appealable initial determination contemplated by 42 C.F.R. § 498.3(b).  An unfavorable ruling on an LSC waiver request is not an initial determination, and Petitioner has not demonstrated otherwise.  Further, the consideration of an LSC waiver request is a discretionary matter, and nothing in the relevant statute or regulations mandates that CMS grant such a waiver.  42 U.S.C. § 1395i-3(d)(2)(B)(i);

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42 C.F.R. § 483.70.  Therefore, because Petitioner has no right to appeal the denial of a discretionary waiver request, I need not address whether CMS or the state agency should have granted a discretionary waiver of seven LSC requirements.

C.  A per-day CMP of $550 for the period January 8 through May 6, 2016, is a reasonable enforcement remedy for Petitioner’s noncompliance.

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 and a DPNA.  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.  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).

In this case, CMS imposed a per-day CMP of $550 for 120 days from January 8 through May 6, 2016, for a total CMP of $66,000.  CMS Ex. 11.  Petitioner did not challenge CMS’s findings of substantial noncompliance from the surveys conducted on January 8, February 8, March 11, April 4, 2016, and the April 8, 2016 LSC recertification survey conducted on April 8, 2016.  Jt. Stip. at 1-2.  Therefore, the deficiencies cited based on those surveys are now administratively final and binding.  Petitioner challenged only the February 25, 2016 survey, appealing the deficiency cited pursuant to 42 C.F.R. § 483.25(h).  Based on Petitioner’s continued noncompliance at the February 25, 2016 survey, as discussed herein, CMS had a basis for continuing the previously imposed remedies.  Thus, Petitioner was not in substantial compliance with participation requirements for the entire duration of the survey cycle from January 8 through May 6, 2016.

Aside from arguing that it should not have been cited for a deficiency pursuant to 42 C.F.R. § 483.25(h) based on the February 25, 2016 survey, Petitioner has not disputed

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the CMP.  Nonetheless, I will evaluate the factors set forth in section 488.438(f) factors and explain why the CMP is reasonable.

CMS has not presented evidence of a history of noncompliance pre-dating the survey cycle.  Nonetheless, Petitioner had ongoing noncompliance over a series of seven surveys spanning approximately four months.  The record also shows that Petitioner had been cited for noncompliance with 42 C.F.R. § 483.25(h) during the same survey cycle on January 8, February 25, and April 4, 2016.  In fact, I note that at the January 8 survey, Petitioner was out of compliance with 42 C.F.R. § 483.25(h) because, on December 24, 2015, a resident fell off the toilet after being left unattended and hit her head, resulting in a subdural hematoma.  CMS Ex. 1 at 2-3.  Petitioner again failed to substantially comply with 42 C.F.R. § 483.25(h) under the quite similar circumstance described at length herein when Resident # 3 fell while toileting.

The deficiency here is serious, and Petitioner is culpable.  Petitioner failed to protect Resident # 3 from foreseeable accidents and hazards.  Despite its awareness that Resident # 3 was at risk for falls and required a two-person assist with transfers on and off the toilet, Petitioner left her unattended so that its staff could assist another resident.  As a result of staff’s failure to adequately protect Resident # 3, she sustained a significant injury as a result of her fall.

Petitioner has not offered any evidence showing an inability to pay the per-day CMP.  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).

Petitioner argues that, based on its mistaken belief that it returned to compliance on February 25, 2016, the survey cycle should have ended with no resulting CMPs.  P. Br. at 23; P. Post-Hrg. Br. at 17; see Jt. Stip. at 3.  Petitioner further argues that “even if the February 25, 2016 survey provided a basis for CMS’s enforcement remedies, those remedies ended as of April 19, 2016, when the April 8, 2016 annual health recertification deficiencies were corrected.”  Jt. Stip. at 3; see P. Br. at 24.

It is “well-settled” that “the period of noncompliance continues until the facility affirmatively demonstrates a return to substantial compliance.”  Ridgecrest Healthcare Ctr., DAB No. 2493 at 15 (2013), citing Premier Living & Rehab. Ctr., DAB No. 2146 at 23 (2008); Lake City Extended Care, DAB No. 1658 at 12-15 (1998).  Petitioner continued to be out of substantial compliance at the February 25, 2016 survey based on substantial noncompliance with 42 C.F.R. § 483.25(h), and it failed to substantially comply with participation requirements through the duration of the survey cycle from January 8 through May 6, 2016.  Petitioner has not established that it returned to substantial compliance prior to May 7, 2016, at which time it had corrected all LSC deficiencies that were not the subject of a waiver.  Although Petitioner believes that the LSC deficiencies should not serve as the basis for the imposition of any remedies and that

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it should have received a temporary waiver for those deficiencies, the evidence supports that Petitioner remained out of substantial compliance through May 6, 2016.  CMS Ex. 28 at 5.  Accordingly, Petitioner has failed to establish that it returned to substantial compliance earlier than May 7, 2017.

The per-day CMP of $550 is at the low end of the authorized penalty range ($50-$3,000).  42 C.F.R. §§ 488.408(d)(1)(iii), 488.438(a)(1)(ii).  Petitioner does not argue that the per-day amount of the CMP is unreasonable.  Based on consideration of the relevant factors, the CMP is reasonable.

D.  Petitioner was not in substantial compliance from January 8 through May 6, 2016, and CMS was required to impose a mandatory DPNA beginning three months after Petitioner failed to return to substantial compliance, and a DPNA is appropriate between April 8 and May 6, 2016.

CMS imposed a DPNA for the period April 8 through May 6, 2016.  The Act directs the Secretary to impose a DPNA when he determines that a facility has not been in substantial compliance with program participation requirements after a period of three months after a survey identifying noncompliance.  42 U.S.C. § 1395i-3(h)(2)(D); 42 C.F.R. § 488.417(b)(1).  The regulation at 42 C.F.R. § 488.417(b)(1) likewise provides that CMS or a state must impose a DPNA when a facility is not in substantial compliance three months after the last day of a survey identifying noncompliance.

Petitioner was first determined to be out of substantial compliance following a survey that concluded on January 8, 2016.  Jt. Stip. at 1.  Because Petitioner remained out of substantial compliance as of April 8, 2016, (three months after the last day of the January survey), CMS was required by law to impose a DPNA, effective April 8, 2016.  Although Petitioner corrected other deficiencies, it ultimately remained out of compliance with LSC requirements through May 6, 2016.  A DPNA must be imposed when a facility remains out of substantial compliance for three months after the last day of a survey identifying noncompliance.  42 U.S.C. § 1395i-3(h)(2)(D); 42 C.F.R. § 488.417(b)(1).

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IV.  Conclusion

For the foregoing reasons, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h) and that it was not in substantial compliance with program participation requirements from January 8, 2016 through May 6, 2016.  A per-day CMP of $550 from January 8 through May 6, 2016, and a DPNA from April 8 through May 6, 2016, are reasonable enforcement remedies.

• 1. Federal nursing home regulations substantially changed beginning on November 28, 2016. 81 Fed. Reg. 68,688 (Oct. 4, 2016). Based on the dates of the surveys, which preceded the regulatory revisions, I refer to the regulations that were in effect at the time of the surveys.
• 2. CMP amounts increased, effective February 3, 2017, for deficiencies assessed on or after February 3, 2017, when the violation occurred after November 2, 2015. See 82 Fed. Reg. 9,174 (February 3, 2017). I apply the CMP amounts that were in effect when Petitioner was cited for the deficiencies in 2016.
• 3. 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 March 5, 2018); see 42 C.F.R. § 488.408. As relevant here, a scope and severity level of D, E, or F indicates a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy. A scope and severity level of G, H, or I indicates a deficiency that involves actual harm that does not amount to immediate jeopardy.
• 4. The parties agreed, in part, to the following in a joint stipulation of issues (Jt. Stip.) presented for hearing: Petitioner does not contest the findings of noncompliance reported in the surveys conducted on January 8, February 8, March 11, and April 4, 2016, and at an LSC annual certification survey on April 8, 2016. Further, the parties agreed that the following deficiencies at the scope and severity level of D through G were “final and binding”: 42 C.F.R. § 483.15(e)(1) (cited as Tag F246, reasonable accommodation of needs/preferences); 42 C.F.R. § 483.25(h) (cited twice as tag F323, free of accident hazards/supervision/devices); 42 C.F.R. § 483.20(k)(3)(ii) (cited as Tag F282, services by qualified persons/per care plan); 42 C.F.R. § 483.10(b)(11) (cited as tag F157, notification of changes in condition); 42 C.F.R. § 483.25 (cited twice as tag F309, providing care/services for highest well-being); 42 C.F.R. § 483.25(m)(1) (cited as Tag F332, free of medication error rates of five percent or more), and 42 C.F.R. § 483.75(f) (cited as tag F498, nurse aide demonstrate competency/care needs).
• 5. In the same joint stipulation, the parties agreed that Petitioner does not dispute any of the following deficiencies cited by the LSC survey: 42 C.F.R. § 483.70(a), cited as tags K015, K017, K018, K029, K038, K046, K052, and K145, at a scope and severity level ranging from “D” through “F.”
• 6. CMS submitted CMS Ex. 34 (a copy of a document that Petitioner had appended to its request for hearing) in response to an on-the-record directive. Tr. at 49-50, 108.
• 7. Findings of fact and conclusions of law are in bold and italics.
• 8. As previously discussed, Resident # 3 reported a fall a month earlier on October 31, 2015. P. Ex. 3 at 4.
• 9. The Falls Risk Assessment states that a resident who scores a 10 or above is deemed to be at risk for falls. CMS Ex. 19 at 4; see CMS Ex. 24 at 4 (“A score of 10 or higher deems the client at risk and requires the initiation of fall precautions.”).
• 10. Ms. Boger testified that, based on an assessment conducted after Resident # 3’s fall, she felt that Resident # 3 did not have poor sitting balance at the time she was left alone on the toilet on January 31, 2016. P. Ex. 4 at 5; see CMS Ex. 19 at 5 (reporting poor sitting balance on November 30, 2015). Ms. Boger attributed the November 2015 assessment that Resident # 3 had poor sitting balance to a urinary tract infection (UTI); Petitioner has presented no probative evidence establishing that Resident # 3 continued to have a UTI at the time of the assessment on November 30, 2015, or that a UTI would impair sitting balance. See P. Ex. 3 at 4 (November 4, 2015 report of burning upon urination, with doctor’s order to obtain urinalysis testing; P. Ex. 3 at 4 (reporting that an antibiotic regimen is in progress on November 8, 2015); P. Ex. 3 at 4-5 (physician examination report reporting UTI as one of one of 13 diagnostic impressions on November 13, 2015); P. Ex. 3 at 5 (final day of reported antibiotic monitoring in clinical records, dated November 13, 2015); Tr. at 63 (Ms. Boger’s testimony that antibiotic treatment should have ended on November 13 or 14, 2015). Resident # 3’s clinic records do not evidence further UTI after the completion of her antibiotic regimen on or about November 13, 2015, nor do her records document associated weakness or poor sitting balance attributed to a UTI.
• 11. A September 22, 2015 social services note similarly reported that Resident # 3 has “hearing deficits” and “needs staff to speak up.” P. Ex. 3 at 2.
• 12. I cite to the state agency’s surveyor interview forms that document interviews with staff members; the facility’s investigative documents do not address that staff left Resident # 3 alone on the toilet when they were caring for another resident. The state agency interviewed several staff members (Pardle, Kruse, Borger, and Akyaa), and those individuals signed the forms recording notes of the interviews. CMS Ex. 16 at 1, 3, 7, 11, 13.
• 13. Ms. Akyaa informed the surveyor that she had checked the client care guide at the beginning of her shift (CMS Ex. 16 at 13); the client care guide reported that Resident # 3 was not a fall risk, based on a reported fall risk score of 9. CMS Ex. 19 at 1.
• 14. At the hearing, Petitioner argued that CMS misrepresented the record when it stated that Petitioner initiated in-service training on February 1, 2016. Petitioner stated that it held in-service training on January 23, 2016, and therefore, the in-service training began on January 23, not February 1, 2016. Tr. 30, 31, 33. In response to my questioning, Ms. Boger testified that the in-service attendance sheets were for “two different trainings, slightly different trainings” and confirmed that one session was offered on January 23, and a different session was offered on a “related topic” on February 1, 2016. Tr. 40-41. Based on Ms. Boger’s testimony, Petitioner has not shown that CMS inaccurately stated that in-service training began on February 1, 2016.
• 15. Ms. Boger did not maintain this position. CMS Ex. 34; Tr. 43, 50-52. She later stated, in a March 14, 2016 statement that Petitioner submitted with its informal dispute resolution request, the following:
  
  

  During the course of this recent review of this incident, it was noted that the CNA involved should not have received a disciplinary action. She followed the care plan correctly by getting a second staff member to assist her in transferring [Resident # 3] onto the toilet. [Resident # 3] was able to remain on the toilet without staff supervision at the time of this fall. The disciplinary action has been removed from the employee’s personnel file.

  CMS Ex. 34. On cross-examination, Ms. Boger testified that Ms. Akyaa’s care of Resident # 3 was “correct.” Tr. 51-52. It is unclear why Ms. Boger would have such a change in position well after the incident, other than because Petitioner had been cited for a deficiency and the contemporaneous discipline of Ms. Akyaa could be supportive of a deficiency. I further point out that, in its request for a subpoena, Petitioner asserted that it terminated Ms. Akyaa on March 10, 2016, for reasons unrelated to the incident at issue. Despite the fact that I granted Petitioner’s subpoena request, Petitioner did not call Ms. Akyaa as a witness at the hearing.

• 16. As previously discussed, Resident # 3 reported that she fell on October 31, 2015, but Petitioner seems to have disregarded this report even though it contacted her physician and family after Resident # 3 reported the fall. P. Ex. 3 at 4.
• 17. I also note that the CNAs were caring for another resident while Resident # 3 was toileting. It is unclear whether, even if the CNAs were aware of the call light’s activation while they were in another resident’s room, they would have been able to respond promptly. Thus, Petitioner expected Resident # 3, a cognitively impaired woman with poor memory, to patiently wait on the toilet after she finished toileting until someone returned to assist her off the toilet. See CMS Ex. 16 at 4, 14.
• 18. As I previously stated, use of the call light after using the toilet is not in the care plan. Rather, the care plan addresses use of the call button prior to using the bathroom.
• 19. P. Ex. 15 is the declaration of George Walgren, and P. Ex. 21 is the declaration of Barry Vandergenugten. P. Ex. 20 is a document that Petitioner prepared in support of its claim that the DPNA resulted in $465,922.44 of “foregone revenue.” Although the amount of “foregone revenue” is not a factor for consideration, I observe that the document reports that Petitioner accepted more than 90 new admissions during the 29-day period of the DPNA.