Elk Crossing, DAB CR5584 (2020)

DECISION

Petitioner, Elk Crossing, is a long-term care facility located in Duncan, Oklahoma, that participates in the Medicare program.  In less than two months, one of its particularly vulnerable residents fell six times, ultimately breaking her hip, which proved fatal.  After determining that the facility had not done all that was possible to protect the resident, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and imposed a per-instance civil money penalty (CMP) of $10,000.  Petitioner has appealed, and CMS moves for summary judgment.   

For the reasons set forth below, I grant CMS’s motion; I find that the facility was not in substantial compliance with Medicare program requirements and that the penalty imposed is not unreasonably high.

Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to

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promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301. 

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys.  Facilities must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).

In this case, surveyors from the Oklahoma State Department of Health (state agency) went to the facility to investigate a complaint, completing the investigation on July 20, 2017.  CMS Ex. 2.  Based on their findings, CMS determined that the facility was not in substantial compliance with one Medicare participation requirement:  42 C.F.R. § 483.25(d) (Tag F323 – quality of care:  accident prevention), cited at scope and severity level G (isolated instance of substantial noncompliance that causes actual harm but does not pose immediate jeopardy to resident health and safety).  CMS Ex. 1 at 4.  

Thereafter, CMS determined that the facility returned to substantial compliance on August 11, 2017.  CMS has imposed against the facility a per-instance penalty of $10,000.  CMS Ex. 1 at 1.

Petitioner appeals, and CMS has moved for summary judgment. 

The parties have filed pre-hearing briefs (CMS Br.; P. Br.).  With its brief, CMS submitted 14 exhibits (CMS Exs. 1-14).  Petitioner listed one exhibit, a witness’s written declaration, but did not file it.  CMS filed a motion for summary judgment (CMS MSJ), and Petitioner responded with a brief in opposition (P. Opp.).

Issues

As a threshold matter, I consider whether summary judgment is appropriate. 

On the merits the issues are:

• Was the facility in substantial compliance with 42 C.F.R. § 483.25(d); and

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• If the facility was not in substantial compliance, is the penalty imposed – $10,000 per-instance – reasonable. 

Discussion

Summary judgment.  Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009), and cases cited therein.

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. Dep’t of Health & Human Servs.,388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex, 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586 n.11 (1986); see also Vandalia Park,DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  The non-moving party may not simply rely on denials, but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non-moving party must show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6 (2015), aff’d, W. Tex. LTC Partners, Inc. v. U.S. Dep’t of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 475 U.S. at 587).

In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr.,DAB No. 1943 at 8 (2004); see also Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions.  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6-7 (2015); cf. Guardian, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”).

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Summary judgment applied to administrative review in Medicare cases.  It is well-established that an administrative law judge is empowered to decide a case on a motion for summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).1  Nevertheless, there seems to be some confusion about applying such well-founded principles of civil litigation to these proceedings, with some ill-informed advocates suggesting that, to do so, denies a party a fundamental right.  In one succinct observation, Judge Posner of the Seventh Circuit Court of Appeals gave lie to such misapprehensions:  “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (emphasis added).

In Fal-Meridian, the Seventh Circuit considered specifically the appropriateness of granting CMS summary judgment in a nursing home case involving (then) section 483.25(h) (now section 483.25(d)).2  The court sustained the administrative law judge’s granting summary judgment in CMS’s favor because the petitioner/nursing home did not tender “evidence that, if believed, would show that it had done everything possible (within the meaning of the regulation) to minimize the risks of an accident.”  Fal-Meridian, 604 F.3d at 451.

Here, the parties agree on the underlying facts (see below).  CMS maintains (and I agree) that those undisputed facts establish that the facility was not doing everything possible to minimize the risk of accidents and that CMS is therefore entitled to judgment as a matter

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of law.  Petitioner, however, identifies, as material facts in dispute:  “whether the facility had appropriate fall preventions in place for Resident #1 and whether Resident #1’s fall was preventable.”  P. Opp. at 4.  These are not facts; they are conclusions.  See Guardian, DAB No. 1943 at 11 (characterizing as “conclusory in nature” claims that the facility provided “effective,” “appropriate,” or “aggressive” interventions.).  Such “conclusory” statements that are unsubstantiated by evidence of specific facts are insufficient to create a genuine factual dispute.  Id.  Moreover, whether the resident’s fall was preventable is not even the relevant issue here.  As the Fal-Meridian court observed, the relevant questions are:  1) whether the facility’s “handling of [the resident’s] physical and mental infirmities was consistent with its duty to keep the [facility] free as possible from hazards that might cause an accident,” and 2) if not consistent, whether the facility’s dereliction of its duty was likely to cause serious injury, harm, impairment, or death to a resident.  Fal-Meridian, 604 F.3d at 447.  

Ultimately, CMS is entitled to summary judgment because Petitioner presents no admissible evidence of specific facts showing that it did everything possible to minimize the risks of an accident.

1.  CMS is entitled to summary judgment because the facility did not tender evidence showing that it did everything possible (within the meaning of 42 C.F.R. § 483.25(d)) to minimize the risks posed to a vulnerable resident.3

Program requirement:  42 C.F.R. § 483.25(d) (Tag F323).  The statute mandates that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  Act § 1819(b)(2).  To this end, the “quality of care” regulation mandates, among other requirements, that the facility “ensure” that each resident’s environment remain as free of accident hazards as possible and that each resident receive adequate supervision and assistive devices to prevent accidents.  42 C.F.R. § 483.25(d).  The facility must therefore eliminate or reduce a known or foreseeable risk of accidents “to the greatest degree practicable.”  Del Rosa Villa, DAB No. 2458 at 7 (2012); Clermont Nursing & Convalescent Ctr., DAB No. 1923 at 9-10 (2004), aff’d sub nom. Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F. App’x 900 (6th Cir. 2005); accord Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007) (holding that the facility must “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.”).  A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute

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an “adequate” level of supervision under all the circumstances.  42 C.F.R. § 483.25(d); Briarwood, DAB No. 2115 at 5; Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff’d sub nom. Windsor Health Care Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005).

Resident 1 (R1).  R1 was a 96-year-old woman, admitted to the facility on July 28, 2016, suffering from a long list of impairments, including hypertension, hypokalemia (low potassium levels), pruritus (chronic itchy skin), progressive neuropathy, muscle weakness, and sepsis.  CMS Ex. 2 at 2; CMS Ex. 4 at 1, 4, 5; CMS Ex. 6 at 1.  She had a history of anxiety and was cognitively impaired.  CMS Ex. 4 at 2; CMS Ex. 8 at 1.  She required extensive assistance with activities of daily living, including toileting and transfers.  CMS Ex. 8.  Her gait was unsteady, and she had a history of falls.  CMS Ex. 10 at 1.  She used a wheelchair for locomotion.  CMS Ex. 8 at 2.

R1’s care plan.  R1’s care plan, initiated August 3, 2016, characterized her fall risk as “moderate” and called for the following interventions:

• Anticipate and meet the resident’s needs;
• Be sure that her call light is within reach and encourage her to use it when she needs assistance; respond promptly to all requests for assistance;
• Ensure that the resident wears appropriate footwear (brown leather shoes, tartan bedroom slippers, non-skid socks) when ambulating or mobilizing in her wheelchair;
• “Follow facility fall protocol”;
• The resident needs a safe environment with:  even floors, free from spills and clutter; adequate glare-free light; a working and reachable call light; bed in low position at night; “slide fails” as ordered; hand rails on the walls; and personal items within reach;
• Ensure that the resident’s PSA alarm is in place, as needed; and
• Physical therapy to evaluate and treat, as ordered or as needed.

CMS Ex. 10 at 1.

Falls.  Assuming these interventions were in place, they did not prevent R1 from falling.  She fell repeatedly:

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• August 17, 2016:  At 9:00 a.m., a licensed practical nurse (LPN) was assisting R1 from her wheelchair to her bed when the resident started to slip, her legs “going under the bed.”  The LPN reported that she lowered the resident to the ground.  In the process, the resident’s leg “caught on a bar under the bed.”  She suffered a large, deep laceration to the front of her left shin.  According to the resident, “my shoes were slick and I just started to slip.”  CMS Ex. 5 at 1; CMS Ex. 10 at 3; see CMS Ex. 4 at 1 (facility report to the state agency).
  
  The resident was taken to the hospital, where she required 17 sutures.  CMS Ex. 5 at 1; CMS Ex. 7 at 4.  Emergency room records describe her as “anxious.”  CMS Ex. 7 at 4. 
  
  In contravention of the resident’s care plan, which directed staff to ensure that the resident wear appropriate footwear (CMS Ex. 10 at 1), R1 was wearing “house shoes that did not have non-skid soles.”  CMS Ex. 5 at 1.  By itself, this incident puts the facility out of substantial compliance with section 483.25(d).  As the Departmental Appeals Board has emphasized, summary judgment is appropriate when (as here) the undisputed facts show that the facility did not follow its own care plan in providing supervision or assistance devices to prevent accidental injury.  Guardian, DAB No. 1943 at 23 (citing Lebanon Nursing & Rehab. Ctr., DAB No. 1918 at 9); Windsor Health Care Ctr., DAB No. 1902.
  
  In response to the fall, the facility applied grip tape to the side of R1’s bed and asked the resident’s family to provide appropriate footwear.  CMS Ex. 5 at 1.

• September 6, 2016:  At 2:37 a.m., staff discovered R1 sitting on the floor next to her bed, yelling for help.  Her call light was on her pillow.  She reported that she had been trying to get to the bathroom but lost her balance.  She was not injured.  CMS Ex. 5 at 4; CMS Ex. 10 at 3; see CMS Ex. 4 at 5 (facility report to the state agency).   
  
  Staff responded by “re-educating” the resident, demonstrating how to use the call light.  They initiated the “falling star program.”  CMS Ex. 5 at 4; CMS Ex. 10 at 3.

• September 16, 2016:  At 6:15 a.m., staff again discovered R1 sitting on the floor, this time in front of her toilet.  She was yelling, “help me, help me.”  She reported that she was trying to go to the restroom and didn’t want to wait for someone to help her.  She had not used her call light.  She was not injured.  CMS Ex. 5 at 7; CMS Ex. 10 at 3; see CMS Ex. 4 at 3 (facility report to state agency).
  
  Staff responded by putting R1 on “the bowel and bladder program.”  CMS Ex. 5 at 7; CMS Ex. 10 at 3.

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• September 24, 2016:  At 6:41 a.m., a nurse aide found R1 on her bathroom floor.  Her alarm was undone; her walker and wheelchair were by her bedside.  She told staff that she “just got up to go to the restroom.”  She was not injured.  CMS Ex. 5 at 10; CMS Ex. 10 at 3; see CMS Ex. 4 at 4 (facility report to state agency). 
  
  Staff responded by “adjusting” R1’s bowel and bladder program to toilet the resident at 5:30 a.m., since this was the second time she had fallen at about 6:00 a.m.  CMS Ex. 5 at 10; CMS Ex. 10 at 3.  

• September 29, 2016:  At 11:37 p.m., a nurse aide once again found R1 on the floor in her room.  The nurse aide left to get the nurse.  When they returned, the nurse observed the resident trying to get back up on to her bed, but she slid back down to the floor.  Her wheelchair was beside her bed.  She was alert and answering questions.  She reported that she slid off the bed when she sat up.  She was not injured.  CMS Ex. 5 at 16; CMS Ex. 10 at 4; 
  
  Staff once again “educated” the resident to use the call light for assistance, and maintenance workers apparently installed a mobility bar on her bed “to help [the] resident with transfers and positioning.”  CMS Ex. 4 at 2; CMS Ex. 5 at 16; CMS Ex. 10 at 4.

• October 4, 2016 – the final (and fatal) fall:  Although the facility’s documents omit some critical details (which itself raises some serious questions), they indicate that, at 6:20 p.m., R1 “had been located in [sic] her bathroom floor.”  Staff saw her lying on her left side, on the bathroom floor, next to the commode.  She sat up and attempted to stand; staff “assisted her into her bed and alerted the nurse.”  CMS Ex. 10 at 4, 7. 
  
  According to the care plan note, R1 fell when she attempted to transfer, without assistance, from her commode to her wheelchair.  The note also says that the resident “could not recall how [the] fall occurred.”  CMS Ex. 10 at 4, 7. 
  
  R1 complained of pain in her left hip, “shouting out in pain even when lying still.”   She was inconsolable.  Staff called an ambulance, and she was taken to the hospital, where she was admitted with a left hip fracture.  CMS Ex. 10 at 4, 7, 9.  She died on October 7, and the cause of death was attributed to her left hip fracture, caused by a fall.  CMS Ex. 11.

The facility’s record of the incident leaves out some critical information, such as how she got into the bathroom in the first place.  When the surveyors interviewed two medication aides, the aides admitted that they had assisted R1 to the toilet and left her there, unsupervised.  The resident fell when she tried to transfer from the toilet to her wheelchair.  CMS Ex. 9 at 2 (Naney Decl.).  The medication aides also admitted that they

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were outside the resident’s room when they heard her calling out for help.  CMS Ex. 2 at 7; see P. Opp. at 3 (conceding that staff members assisted R1 to the bathroom and left her there). 

The facility’s director of nursing (DON) and assistant director of nursing (ADON) conceded that “no supervision interventions had been put in place for [R1] to prevent falls.”  CMS Ex. 9 at 2 (Naney Decl.).  Indeed, the surveyors found no documentation that supervision interventions were put into place, and Petitioner has produced none.  CMS Ex. 2 at 6.

Knowing that she could not safely transfer or use the bathroom without supervision, facility staff left R1 alone in the bathroom.  This establishes that the facility fell far short of doing what was possible to minimize the risk of accidents and puts the facility out of substantial compliance with section 483.25(d). 

For its part, Petitioner has not come forward with any evidence suggesting a dispute over any of these dispositive facts.  It points out that “there were numerous fall prevention measures in place for [R1] and . . . those measures were appropriate.”  P. Opp. at 5.  Whether all the measures in place were appropriate or implemented is far from certain.  Some were so vague (“anticipate and meet the resident’s needs”; “follow facility fall protocol”; “bowel and bladder program”; “falling star program”) as to provide staff with little to no guidance.  Moreover, no evidence shows that R1 was ever put on a “bowel and bladder program.”  The “falling star program” is not described, and no evidence suggests that it was implemented. 

Some of the proposed interventions were demonstrably ineffective.  No evidence suggests that R1 ever used – or was even capable of using – her call light.  In fact, the evidence shows that she repeatedly failed to use her call light, opting instead to get herself out of bed.  CMS Ex. 5 at 4, 7, 10, 16.

Petitioner also asserts, without providing evidence in support, that the resident “normally toileted herself after being assisted to the restroom[,] and there was no reason for the staff to believe that she could not do [so] on this occasion.”  P. Opp. at 5.  In fact, there was every reason to believe that R1 could not safely toilet herself.  Prior to October 4, she had fallen twice while alone in the bathroom.  CMS Ex. 5 at 7, 10.  Yet, on October 4, the facility left her in the bathroom with no supervision.

Because the facility did not ensure that R1 wore appropriate footwear, as called for in her care plan, and did not ensure that she received the level of supervision she needed to prevent injury from accidents, it was not in substantial compliance with section 483.25(d).

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2.  The undisputed evidence establishes that the penalty imposed is reasonable.

To determine whether a civil money penalty is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) 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.  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 section 488.438(f) 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.  Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1638 at 8 (1999).

Here, CMS imposes a per-instance penalty of $10,000, which is in the low to mid-range for per-instance penalties ($2,097 to $20,965).  42 C.F.R. §§ 488.408(d)(1)(iv); 488.438(a)(2); 45 C.F.R. § 102.3 (2017); 82 Fed. Reg. 9174, 9182-83 (Feb. 3, 2017).4  Considering what CMS might have imposed – a comparable per-day penalty for multiple days of substantial noncompliance – this penalty is modest.  See Plum City Care Ctr., DAB No. 2272 at 18-19 (2009) (observing that even the maximum per-instance CMP can be “a modest penalty when compared to what CMS might have imposed.”).5

Applying the relevant factors here, the $10,000 per-instance penalty is reasonable.

CMS offers no evidence of the facility’s history.

Petitioner does not claim that its financial condition affects its ability to pay this fairly modest amount.

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With respect to the remaining factors, Petitioner points out that just one deficiency was cited, involving just one resident.6  But the consequences of a fall are enormous – much suffering, hospitalizations, and even death.  And here, the facility had ample opportunities to provide the assistive devices and level of supervision R1 required to prevent falls, but it failed to do so.  First, it did not provide the footwear it knew she required.  Then, knowing that she had twice fallen while unsupervised in the bathroom, staff nevertheless left her alone in the bathroom.  For this, the facility is culpable and the penalty imposed is modest, considering the seriousness of the deficiency. 

Conclusion

For all of these reasons, I grant CMS’s motion for summary judgment.  The undisputed evidence establishes that the facility was not ensuring that R1 receive adequate supervision and assistive devices to prevent accidents.  The facility was therefore not in substantial compliance with 42 C.F.R. § 483.25(d).  The small penalty imposed – $10,000 per-instance – is reasonable.

• 1. The courts that have considered applying principles of summary judgment to Medicare administrative proceedings have carefully avoided any suggestion that deciding a case on summary judgment means that it is decided without a hearing.  Throughout their decisions, they refer to deciding the case without an “oral hearing” or without an “evidentiary hearing.”  The courts recognize that, although a case may be decided on summary judgment (or based on the written record), an administrative law judge, by considering the evidence and applying the law, has granted the petitioner a hearing, as required by sections 205(b) and 1866(h) of the Act.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”).
• 2. The regulations governing long-term care facilities have been revised since the Seventh Circuit issued its decision in Fal-Meridian; the requirement that facilities minimize the risk of accidents is now found at section 483.25(d).  81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (Jul. 13, 2017).  However, the substance of the “quality of care” requirements – which are also statutory – has not changed, so decisions that pre-date the regulatory changes remain valid.
• 3. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
• 4. Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, on August 8, 2017.  See CMS Ex. 1 at 4; 82 Fed. Reg. at 9182-83.
• 5. A per-day penalty could be as high as $6,289 per day.  82 Fed. Reg. at 9182-83.
• 6. Considering that this was a complaint investigation, rather than a standard survey, this is not particularly surprising.