Autumn Care of Mocksville, DAB CR5688 (2020)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS), sustaining the imposition of a per-instance civil money penalty of $20,965 against Petitioner, Autumn Care of Mocksville, a skilled nursing facility.1

I. Background

This case recently was transferred to me from the docket of another administrative law judge.  On reviewing the record, I discovered a fully briefed motion for summary judgment.  I conclude that there are no disputed issues of material fact.  Consequently, this case is ripe for a decision.

CMS filed 12 exhibits in support of its motion, identified as CMS Ex. 1-CMS Ex. 12.  Petitioner replied with three exhibits, identified as P. Ex. 1-P. Ex. 3.  I do not receive

Page 2

these exhibits as evidence inasmuch as there are no disputed issues of material fact.  However, I cite to some of these exhibits to illustrate facts that are not in dispute.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether Petitioner failed to comply substantially with Medicare participation requirements and whether a per-instance civil money penalty of $20,965 constitutes a reasonable remedy.

I note that CMS contends that Petitioner’s alleged noncompliance with two regulations, 42 C.F.R. §§ 483.25(d)(1)-(2) and 483.70, was so egregious as to constitute immediate jeopardy for Petitioner’s residents.  I do not address the immediate jeopardy question in this decision because it is unnecessary that I do so.  As I discuss in more detail below, the presence or absence of immediate jeopardy does not govern the reasonableness of the remedy where CMS imposes a per-instance civil money penalty.  42 C.F.R. § 488.438(a)(2). 

In the statement of deficiencies, CMS alleged that Petitioner failed to comply substantially with the requirements of 42 C.F.R. §§ 483.20(g), 483.25(d)(1)-(2), 483.70, and 483.75(a)(2), (h), (i).  CMS grounds its motion for summary judgment on Petitioner’s alleged noncompliance with the first three of these regulations.  In deciding the motion, I address Petitioner’s noncompliance with 42 C.F.R. §§ 483.25(d)(1)-(2) and 483.70.  I find that Petitioner’s noncompliance with these two regulations amply justifies the penalty that CMS determined to impose.2

B. Findings of Fact and Conclusions of Law

The central deficiency in this case is Petitioner’s failure to investigate thoroughly the cause of an accident that occurred to one of its residents, Resident # 33.

A skilled nursing facility has a duty to protect its residents against all foreseeable accidents and to provide those residents with necessary supervision and assistance devices.  42 C.F.R. § 483.25(d)(1)-(2).  An integral element of these duties is that a facility investigates and ascertains the cause of any accident so as to prevent its recurrence.  Hotel Reed Nursing Ctr.,DAB No. 2154 at 16 (2008), aff’d sub nom. Hotel Reed Nursing Ctr. v. DHHS, 333 F. App’x 829 (5th Cir. 2009).  The requirement to investigate is a logical outgrowth of the duty to protect.  A facility cannot fulfill its duty

Page 3

to assure that all reasonable measures are taken to protect its residents against foreseeable accidents if it does not comprehend what potentially may be the cause of an accident.

These facts are undisputed. 

As of December 27, 2017, Resident # 33 suffered from severe impairments that included renal failure, diabetes, seizures, and bilateral knee amputations.  CMS Ex. 2 at 4; CMS Ex. 5 at 2, 7, 11; CMS Ex. 6 at 14.  The resident was confined to a wheelchair.  CMS Ex. 5 at 5.  Petitioner’s staff assessed the resident’s condition as precarious; she needed total assistance for transfer to and from her wheelchair and she was at risk for falls.  Id. at 5, 8, 13.

The resident’s renal failure necessitated that she receive dialysis three times per week.  This was done at a location off the premises of Petitioner’s facility.  Petitioner engaged the services of a public transportation company to transfer the resident to and from her dialysis appointments.  CMS Ex. 8 at 16; Petitioner’s brief at 5.3

On December 27, 2017, Resident # 33 sustained an accident while being transported by van from a dialysis session back to Petitioner’s facility.  CMS Ex. 2 at 4-5; CMS Ex. 6 at 9-10, 12.  The resident was being transported while in her wheelchair.  At some point during the trip back to Petitioner’s facility, the van driver discovered the resident lying on the floor of the van.  The resident fell from her wheelchair and lay on the floor of the van for a period of time.  Upon arrival, the van’s driver reported to Petitioner’s nursing station that the resident had slid out of her wheelchair while being transported.  CMS Ex. 6 at 9-10.

Initially, the only information communicated to Petitioner’s staff about the accident consisted of the van driver’s comments.  The driver was unable to state how the accident had occurred or for how long the resident lay on the floor of the van before being discovered.  The driver told Petitioner’s staff that a camera inside the van would have recorded the accident.  CMS Ex. 8 at 12-13.  Beyond saying that, the van driver was non-cooperative.  The driver refused to answer questions or give a statement to Petitioner’s staff.  Id. at 16-17.

The transportation company told Petitioner that it would investigate the accident and review the recording of what had transpired.  CMS Ex. 8 at 12-13, 16-17.  The transportation company eventually told Petitioner that Resident # 33 had experienced a seizure while being transported.  Id.  It acknowledged that the driver had erred by not pulling over and calling 911.  It asserted that it had terminated the driver’s employment.  Id.

Page 4

Petitioner’s management asked for a copy of the transportation company’s investigative report.  It also asked to review the video made during the incident.  The transportation company never furnished its report to Petitioner and denied it access to the video.  CMS Ex. 8 at 17; P. Ex. 1 at 149.

Having been denied access to the transportation company’s investigative report and the video, Petitioner nevertheless continued to utilize the transportation company’s services.  It allowed the transportation company to continue to transport Resident # 33 to and from her dialysis treatments.  CMS Ex. 11 at ¶¶ 10, 14.  It undertook no additional efforts to ascertain what had happened and what risks to the resident’s safety were present in the van.  Although Petitioner’s staff made adjustments to the resident’s wheelchair and assumed that the resident had experienced a seizure while in the van, it did not independently ascertain whether that was the case.  The staff did not inspect the van.  In sum, Petitioner relied on the transportation company’s assurances without conducting an investigation of its own.

North Carolina state agency surveyors subsequently interviewed a manager of the transportation company.  He stated that he had investigated the accident and had watched the video that recorded it.  CMS Ex. 8 at 17.  The surveyors viewed the video.  It confirmed that Resident # 33 had experienced a seizure while being transported.  Id. at 18.  The video showed the resident losing consciousness and sliding downward from her wheelchair to the van’s floor.  Id.  The driver never checked the rear-view mirror and apparently was unaware that the resident had fallen.  The van continued on its journey for about 10 minutes after the accident before arriving at Petitioner’s parking lot.  Id.

Petitioner’s contract with the transportation company required that the transportation company follow an approved safety plan.  CMS Ex. 6 at 36-37.  However, Petitioner did not maintain a copy of that plan, and its staff were unable to say what were the contents of that plan.  CMS Ex. 11 at ¶ 16; CMS Ex. 12 at ¶ 15.

Petitioner had a duty to conduct an independent investigation of the circumstances of Resident # 33’s accident.  It could not simply accept the transportation company’s summary and for obvious reasons.  The transportation company had a conflict of interest.  It was in its self-interest to provide an account of the event that either denied its liability or minimized the seriousness of what had happened.  Petitioner had no way of knowing whether the transportation company was doing that when it received and accepted the transportation company’s account.

Obviously, the transportation company thwarted Petitioner’s efforts to find out first-hand what had happened, by denying Petitioner access to its own report and to the video.  That refusal by the transportation company did not end Petitioner’s responsibility.  It could not simply accede to the transportation company’s stonewalling.

Page 5

What might Petitioner have done?  Certainly, it could have contacted the North Carolina state agency and asked for assistance.  The undisputed facts establish that the transportation company readily provided the state agency with the items that it had refused to provide to Petitioner.  Petitioner might also have asked its parent corporation to pressure the transportation company to cooperate.  Petitioner could have refused to continue to do business with the transportation company given that entity’s refusal to cooperate.  What Petitioner could not do was simply to accept the transportation company’s representations without probing further.

Petitioner asserts that it confirmed independently from hospital records that the resident had a seizure while being transported.  However, the issue isn’t whether the resident had a seizure, but rather, whether the resident was sufficiently protected while being transported from accidents, which may have included seizures or other mishaps.

Petitioner’s failure to pursue an investigation into the circumstances of the accident sustained by Resident # 33 constitutes noncompliance with the requirements of 42 C.F.R. § 483.25(d)(1)-(2) for the reasons that I have discussed.  It also constitutes noncompliance with the requirements of 42 C.F.R. § 483.70.  This latter regulation requires that a skilled nursing facility be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. 

Petitioner’s noncompliance derives from its failure to comply with the requirements of 42 C.F.R. § 483.25(d)(1)-(2).  At bottom, the responsibility to investigate the circumstances of the accident sustained by Resident # 33 lay with Petitioner’s management.  Management failed to discharge its duty. 

Petitioner’s noncompliance was extremely serious.  Consider the condition of Resident # 33.  This resident – a double amputee – was utterly helpless and completely dependent on the transportation company to provide her with a safe ride.  The transportation company failed her on December 27, 2017.  Petitioner put her in potentially identically dire circumstances subsequently.  It’s true that Petitioner adjusted the resident’s wheelchair and provided her with anti-seizure medication.  However, Petitioner had no way of knowing whether these measures were adequate to protect the resident inasmuch as Petitioner did not see the videotape recording of the incident.  Rather, its staff made assumptions that were not justified by the incomplete investigation that the staff had conducted. 

Furthermore, Petitioner potentially jeopardized the safety and lives of other residents.  Any resident who needed transportation was put in the position of having to ride in a van and under circumstances that Petitioner had not assured were safe.

Page 6

The civil money penalty that CMS determined to impose – a per-instance penalty of $20,965 – is reasonable in light of the seriousness of Petitioner’s noncompliance.  Seriousness of noncompliance is one of the regulatory factors that I may take into account in deciding the reasonableness of a penalty amount.  42 C.F.R. §§ 488.438(f)(1)-(4); 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  As I discuss above, it is unnecessary for me to decide whether Petitioner’s noncompliance was so serious as to comprise immediate jeopardy for residents, inasmuch as the presence or absence of immediate jeopardy is not one of the factors that must be considered in deciding whether a per-instance penalty is reasonable.  Suffice it to say that Petitioner’s noncompliance potentially jeopardized the safety and lives of Petitioner’s residents.

I do not find to be persuasive Petitioner’s arguments challenging the noncompliance findings or the penalty.

Petitioner’s primary argument is that it discharged its responsibility to protect its residents against accidents by contracting with a transportation agency “that affirmatively requires adherence to a safety plan.”  Petitioner’s brief at 12.  Essentially, Petitioner contends that its responsibility to its residents ends at its front door, qualified, perhaps, by a duty to assure that whichever entity it contracts with promises to adhere to a safety plan.  As further support for this assertion, Petitioner argues that it was not required to contract to provide transportation services to its residents but that, having done so, it should not be held liable for actions of an entity that is beyond its ability to control.

However, and as Petitioner acknowledges, its argument is contrary to established law.  It concedes that, in Fort Madison Health Center,DAB No. 2403 (2011), an appellate panel of the Departmental Appeals Board held that a skilled nursing facility is responsible for ensuring the safety of its residents while receiving services arranged for by the facility, including transportation services supplied under contract by a third party.  The Board panel held:

Whether the driver and van belonged to the facility directly or were hired contractually in order to provide transportation services makes no legal difference to the facility’s responsibility to “ensure” the safety of the resident’s environment and adequacy of the resident’s supervision while receiving services arranged for by the facility as part of the resident’s care.

Fort Madison Health Ctr.,DAB No. 2403 at 8.

Petitioner asserts that this holding is wrong, characterizing it as “tenuous.”  Petitioner’s brief at 15.  It asserts that, if it is held responsible for the safety of contractually arranged transportation services, then it could be held responsible for the safety of any outside third-party supplier or provider, such as a supplier of dialysis services.  Id.  This would be

Page 7

an absurd outcome, implies Petitioner, because other third parties are completely beyond Petitioner’s ability to control. 

I find this argument to be unpersuasive.  Equating a transportation service with which Petitioner contracts with a dialysis clinic that operates as an independent supplier of services not under contract with Petitioner is a false analogy.

While there may be third-party suppliers and providers whose activities are beyond Petitioner’s ability to control, that is absolutely not the case with a transportation service.  Petitioner has the power to assert control over a transportation service that it contracts with.  It can require that the contract not only contain assurances that the service operates safely but that Petitioner has oversight authority to ensure that those promises are met.  If the transportation service refuses to agree, then Petitioner can take its business elsewhere.

Petitioner argues that it “did as much as it possibly could do with a third-party public transportation company over which it had no control.”  Petitioner’s brief at 13.  In fact, and as I have explained, it had considerable leverage over the transportation company.  The transportation company made contractual assurances to Petitioner that would, among other things, follow an approved safety plan.  P. Ex. 1 at 2-3.  Petitioner could have, at a minimum, demanded to be supplied with that plan and it could have demanded that the transportation company offer proof that it was complying with it. 

Petitioner was not obligated to allow the continued transport of Resident # 33 or other residents in the face of the transportation company’s stonewalling.  Petitioner could have asked for assistance from the North Carolina state agency to obtain that information.  In short, nothing forced Petitioner to continue exposing its residents to unknown but potentially serious hazards.

Petitioner argues also that the transportation company is regulated by the North Carolina Department of Transportation.  Petitioner’s brief at 14.  From this, Petitioner seems to argue that CMS contradicts its own interpretive guidelines – guidelines that prohibit surveyors from interpreting or enforcing another agency’s requirements – by contending that Petitioner should have asserted some control over the transportation company’s actions.  Seemingly, Petitioner contends that the way in which the transportation company conducts its affairs is a matter that is between that company and the North Carolina Department of Transportation and not one that CMS may interfere with.

That apparent argument is a red herring.  CMS is not contending that the transportation company violated North Carolina regulations.  The heart of CMS’s case is that Petitioner failed to demand necessary and relevant information from the transportation company.  Petitioner cites nothing in North Carolina law that would prevent Petitioner from insisting that the transportation company supply it with the requested information.  In fact, the company readily turned the information over to state agency surveyors.

Page 8

At bottom, Petitioner’s arguments reduce to the contention that what the transportation did – or did not do – was beyond Petitioner’s ability to control.  I reject that contention for the reasons I have stated.  No, Petitioner could not literally supervise the day-to-day activities of the transportation company’s van drivers.  However, it could demand accountability from that company.  Petitioner failed to do so.

Petitioner attempts to refute the undisputed facts that show that its management failed, in violation of 42 C.F.R. § 483.70, to administer the facility effectively.  Petitioner characterizes CMS’s noncompliance contentions as relying on “surveyor opinion that the facility was not persistent or demanding enough in requesting documents and the video from the public transportation company.”  Petitioner’s brief at 20.

Surveyor opinions are not an element in my finding that Petitioner’s management failed to do what it was obligated to do to understand the circumstances of the accident sustained by Resident # 33.  The objective and undisputed material facts show that Petitioner’s management accepted the transportation company’s representations without insisting on additional proof.  After being rebuffed in its initial effort to obtain the transportation company’s investigative report and copy of the van’s videotape, Petitioner simply accepted the transportation company’s possibly self-serving explanation and continued to utilize that company as a means of transport for its residents, including Resident # 33.  I have explained why that acquiescence was inadequate.  To reiterate:  Petitioner continued exposing its residents to potentially high risk because it did not know what actually had happened in the van when Resident # 33 fell. 

Finally, Petitioner asserts that it should be entitled to challenge CMS’s findings that its noncompliance comprised immediate jeopardy for its residents, arguing that these findings caused it to lose its authority to conduct a nurse aide training competency evaluation program (NATCEP).  However, imposition of a penalty in excess of $10,483 has the same effect on authority to conduct a NATCEP, and I have sustained a penalty of $20,965.  Consequently, no reason exists to address whether CMS’s immediate jeopardy findings are clearly erroneous.

• 1. Petitioner asserts that it is unclear whether the civil money penalty in this case is a per-instance civil money penalty or a per-diem penalty.  However, CMS asserts unambiguously in its pre-hearing brief that the penalty is a per-instance penalty.  I accept this representation.
• 2. Throughout this decision I cite to the regulations as they were codified in December 2017 when the incident occurred on which CMS grounds its noncompliance allegations.
• 3. I cite to Petitioner’s “Reply to Centers for Medicare & Medicaid Services’ Motion for Summary Judgment or, in the Alternative, Pre-hearing Brief” as “Petitioner’s brief.”