Conesus Lake Nursing Home, LLC, DAB CR5735 (2020)

DECISION

Conesus Lake Nursing Home, LLC (Petitioner or the facility) challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with Medicare program participation requirements at 42 C.F.R. §§ 483.12(a)(1) and 483.25(d)(1)‑(2).  Petitioner also challenges the imposition of a per‑instance civil money penalty (CMP) of $11,405.  For the reasons discussed below, I find that Petitioner failed to substantially comply with the Medicare participation requirements found at 42 C.F.R. §§ 483.12(a)(1) and 483.25(d)(1)‑(2).  I also conclude that the amount of the per-instance CMP imposed is reasonable.

I.  Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in Livonia, New York, that participates in the Medicare program.  See, e.g., CMS Exhibit (Ex.) 1 at 1.  The New York State Department of Health, Office of Long Term Care (state agency) conducted a survey of Petitioner’s facility that was completed on February 7, 2018.  Id.  Based on the survey findings, the state agency concluded that Petitioner was not in substantial compliance with, inter alia, 42 C.F.R. § 483.12(a)(1) (Tag F600) and 42 C.F.R. § 483.25(d)(1)‑(2) (Tag F689).  Id. at 1, 11.  The facility’s noncompliance was cited at a

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scope and severity level “G.”1  Id.  CMS concurred with the state agency’s determination and, by letter dated April 5, 2018,2 imposed a per-instance CMP of $11,405 and a two-year prohibition on conducting a Nurse Aide Training and Competency Evaluation Program.  CMS Ex. 2 at 1-3; see also CMS Ex. 3 at 1-3.

Petitioner timely requested a hearing before an administrative law judge.  The case was assigned to me for hearing and decision.  On August 21, 2018, I issued an Acknowledgement and Pre-Hearing Order (Pre-Hearing Order) establishing a briefing schedule.  In compliance with my Pre-Hearing Order, CMS filed a pre-hearing exchange, consisting of a combined pre-hearing brief and motion for summary judgment (CMS Br.) and 13 proposed exhibits, including the written declaration of one proposed witness (CMS Exs. 1-13).  Petitioner filed a pre-hearing exchange, consisting of a combined pre‑hearing brief, opposition to CMS’s motion for summary judgment, and cross motion for summary judgment (P. Br.) and seven proposed exhibits, including the written declaration of one proposed witness (P. Exs. 1-7). 

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CMS did not object to any of Petitioner’s proposed exhibits.  Petitioner objected to portions of CMS Ex. 13, specifically CMS’s witness’ testimony relating to the findings and observations recorded in the statement of deficiencies (CMS Ex. 1), on grounds that the witness did not participate in the survey and lacked personal knowledge to support her testimony.  P. Br. at 11-12.  I overrule Petitioner’s objections.  The witness testified that she is familiar with the survey because she was the supervisor of the surveyor who conducted the survey, who has since retired.  CMS Ex. 13 ¶¶ 1-2.  In this administrative proceeding, I may consider any evidence that is relevant and material, even evidence, such as hearsay, that would be inadmissible under the Federal Rules of Evidence.  42 C.F.R. § 498.61 (“Evidence may be received at the hearing even though inadmissible under the rules of evidence applicable to court procedure.”); 42 C.F.R. § 498.60(b)(3) (“The [administrative law judge] inquires fully into all of the matters at issue, and receives in evidence the testimony of witnesses and any documents that are relevant and material.”).  To the extent Petitioner objects to the testimony as improper opinion testimony, I will disregard any testimony that purports to opine on the ultimate legal issues.  Therefore, I admit into evidence CMS Exs. 1-13 and P. Exs. 1-7.

While each party offered the written direct testimony of a witness, neither party requested to cross-examine the opposing party’s witness.  As my Pre‑hearing Order informed the parties, a hearing is only necessary if a party requests to cross-examine a witness.  Pre‑hearing Order ¶¶ 9-11.  Although the parties cross-moved for summary judgment, because an in-person hearing to cross-examine witnesses is not necessary, I decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.  I deny the parties’ cross-motions for summary judgment as moot.

II.  Issues

The issues in this case are:

Whether Petitioner was in substantial compliance with Medicare participation requirements at 42 C.F.R. § 483.12(a)(1) (Tag F600);

Whether Petitioner was in substantial compliance with Medicare participation requirements at 42 C.F.R. § 483.25(d)(1)‑(2) (Tag F689); and

If Petitioner was not in substantial compliance with Medicare participation requirements, then whether the per-instance CMP of $11,405 is reasonable.

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III.  Jurisdiction

I have jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

IV.  Discussion

A. Statutory and Regulatory Background

The Act sets requirements for SNFs to participate in the Medicare program and authorizes the Secretary of Health & Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3).  The Secretary’s regulations are found at 42 C.F.R. parts 483 and 488.

To participate in the Medicare program, a SNF must maintain substantial compliance with program requirements.  To be in substantial compliance, a 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.  A deficiency is a violation of a participation requirement established by section 1819(b)-(d) of the Act (42 U.S.C. § 1395i-3(b)-(d)), or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B.  Id.  “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.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. § 488.10.  The Act also authorizes the Secretary to impose enforcement remedies against SNFs that do not comply with the participation requirements.  Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)).  The regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance.  42 C.F.R. § 488.406.  Among other enforcement remedies, CMS may impose a per-instance CMP for each instance that a facility is not in substantial compliance.  42 C.F.R. § 488.430(a).  The regulations specify that a per-instance CMP will be in the range of $2,097 - $20,965, for each instance of noncompliance.3  42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3.

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If CMS imposes a remedy, such as a CMP, based on a noncompliance determination, then the facility may request a hearing before an administrative law judge to determine whether there was a basis for the deficiency findings that led to the imposition of the remedy and whether the CMP imposed was reasonable.  Act §§ 1128A(c)(2) (42 C.F.R. § 1320a-7a(c)(2)), 1819(h)(2)(B)(ii) (42 C.F.R. § 1395i(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  However, the facility may not appeal CMS’s choice of remedies.  42 C.F.R. § 488.408(g)(2).

CMS has the burden to come forward with evidence sufficient to make a prima facie showing that Petitioner is out of substantial compliance with participation requirements to establish a basis to impose an enforcement remedy.  See, e.g., Evergreene Nursing Care Ctr., DAB No. 2069 at 7 (2007).  If CMS makes this prima facie showing, then Petitioner bears the ultimate burden of persuasion as to whether it substantially complied.  In other words, Petitioner must show, by a preponderance of the evidence, on the record as a whole, that it was in substantial compliance with participation requirements.  Id.  Petitioner has both the burden of coming forward and the burden of persuasion as to any affirmative defense.  Id.; Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005).

B. Findings of Fact, Conclusions of Law, and Analysis

1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag F600) because one of its staff neglected a resident.4

Residents of SNFs have the right to be free from abuse and neglect.  42 C.F.R. § 483.12.  In pertinent part, the regulations define “abuse” as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  42 C.F.R. § 483.5.  “Neglect is the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.”  Id. 

CMS found Petitioner out of compliance with 42 C.F.R. § 483.12(a)(1) based on the conduct of one of Petitioner’s employees.  CMS alleges that the employee, CNA 1, did not implement Resident 1’s care plan and facility policy when transferring Resident 1, resulting in the resident sustaining a fracture of her right distal femur.  For the reasons explained below, I agree that Petitioner failed to comply substantially with the cited regulation.

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I find the following facts by a preponderance of the evidence, based on my review of the entire record in this case.  At the time of the incident involving Resident 1, Petitioner had adopted a policy entitled, “Safe Lifting and Movement of Residents Guidelines” (lift policy).  CMS Ex. 5.  Among other provisions, Petitioner’s lift policy directed that, “[a]ny resident requiring use of mechanical lift device will be assisted by at least 2 appropriate staff members.”  Id. at 1 (emphasis added).  Petitioner also had a policy “to prohibit and prevent abuse, neglect, mistreatment, crime, involuntary isolation, exploitation, serious bodily injury, injuries of unknown source, and/or misappropriation of personal property [of residents] by staff” (anti-abuse policy).  CMS Ex. 4 at 1.

In December 2017, Resident 1 was an 80-year-old woman with diagnoses of, among other things, right hip and bilateral knee arthroplasty, osteoarthritis, and orthostatic hypotension.  CMS Ex. 6 at 22-23.  Resident 1’s care plan, dated May 9, 2017, indicated that she was non-ambulatory, had a potential for falls, and required the assistance of two staff members using a mechanical stand lift for transfers.  CMS Ex. 7 at 5, 6, 17.  On December 19, 2017, CNA 1 was using a mechanical stand lift to reposition Resident 1 in her recliner after transferring her from the toilet.  CMS Ex. 11 at 21.  After being lifted from the recliner, Resident 1’s legs “buckled,” causing her to collapse in the sling of the lift.  CMS Ex. 9 at 4, 8, 9; CMS Ex. 11 at 22.  CNA 1 called for help and, with the assistance of two nurses, Resident 1 was lowered to the floor, but her knees bent back.  CMS Ex. 9 at 4, 5, 8, 9; CMS Ex. 11 at 22.  A nurse was able to straighten out her legs, and she was lifted to bed using a Hoyer lift.  CMS Ex. 9 at 4, 5, 8, 9; CMS Ex. 11 at 22.  Afterwards, Resident 1 complained of right knee pain.  CMS Ex. 9 at 2, 4, 8, 9.  On December 20, 2017, Resident 1 was taken to the hospital and diagnosed with a fracture of her right distal femur.  CMS Ex. 10 at 1, 11.  Following surgery, Resident 1 was discharged to Petitioner’s facility.  CMS Ex. 10 at 21. 

During her interview with the surveyor, CNA 1 acknowledged that Resident 1 required the use of a mechanical stand lift for transfers and that Petitioner’s policy requires two-person assists when using lifts.  CMS Ex. 11 at 20, 23.  Despite this knowledge, CNA 1 admitted that she transferred Resident 1 alone.  Id.  CNA 1 also admitted that she did not secure Resident 1 with the available straps on the stand lift and “the main support was [Resident 1] holding on to the handles of the lift.”  Id. at 21.  CNA 1 also stated that, prior to December 19, 2017, she had always transferred Resident 1 without assistance.  Id. at 23.

There is no dispute that Resident 1 was required to be transferred using a two-person assist with a mechanical stand lift under both the resident’s care plan and Petitioner’s lift policy.  CMS Br. at 7; P. Br. at 3.  Furthermore, there is no dispute that CNA 1 failed to follow Resident 1’s care plan and transferred the resident without utilizing the required two-person assist and without securing the resident using all the available straps on the mechanical stand lift, resulting in Resident 1’s injury.  CMS Br. at 7-8; P. Br. at 3.  The issue is whether the CNA’s actions amount to abuse or neglect.

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I find that, at a minimum, CNA 1 neglected Resident 1 within the meaning of 42 C.F.R. § 483.5 because she failed to provide services that were “necessary to avoid physical harm, pain, mental anguish, or emotional distress” to the resident.  Section 483.12(a)(1) explicitly prohibits facilities from using abusive or neglectful practices.  The regulation “add[s] affirmative prohibitions against the use of specific egregious practices which the drafters treated as particularly subject to misuse in the setting of dependent, vulnerable nursing home residents.”  Kindred Transitional Care & Rehab – Greenfield, DAB No. 2792 at 17 (2017).  CNA 1’s neglect resulted in physical harm to Resident 1, in violation of both the regulation and Petitioner’s anti-abuse policy.  When a facility’s staff member abuses or neglects a resident, “that wrongful act, committed while the [staff member] was providing care to facility residents, effectively ‘becomes the act of the facility’ . . . for purposes of establishing a violation of section 483.13(c)(1)(i) [now codified at 483.12(a)(1)].”  Id.

Petitioner attempts to deflect blame for CNA 1’s actions onto CNA 1 alone, arguing that there was “no culpability on [Petitioner’s] part” and CNA 1’s actions were both “careless” and “flouting of policy and training.”  P. Br. at 4, 9.  However, appellate panels of the Departmental Appeals Board (DAB) have repeatedly rejected attempts by facilities to disavow actions by staff that violate Medicare participation requirements.  The decisions make clear that, “for the purpose of evaluating a facility’s compliance with the Medicare and Medicaid participation requirements, the facility acts through its staff and cannot dissociate itself from the consequences of its employees’ actions.”  Springhill Senior Residence, DAB No. 2513 at 14 (2013); see also, e.g., Gateway Nursing Ctr., DAB No. 2283 at 8 (2009) (facility is responsible for its staff’s actions).  Employees are the agents of their employers, “empowered to make and carry out daily care decisions.”  Emerald Oaks, DAB No. 1800 at 7 n.3 (2001).  “Electing to meet its commitments to provide care and protect residents’ rights through these employees, [a facility] cannot . . . reasonably claim that their misconduct [i]s in effect irrelevant for the purpose of evaluating the facility’s compliance.”  Springhill, DAB No. 2513 at 14; see also Emerald Oaks, DAB No. 1800 at 7 n.3.  Appellate panels have further explained that this “rationale for holding a facility accountable for the actions of its staff applies equally to all staff members who, in the course of carrying out their assigned duties, fail to act in a manner consistent with the regulations and the facility’s policies. . . .”  N.C. State Veterans Nursing Home, Salisbury, DAB No. 2256 at 12 (2009).  Moreover, the decisions make clear that “because a facility is responsible for its staff’s actions, ‘considerations of foreseeability are inapposite when staff abuse has occurred.’”  Springhill, DAB No. 2513 at 15 (quoting Gateway, DAB No. 2283 at 8).

The above-cited cases are entirely consistent with the Act.  Section 1128A(l) of the Act, made applicable by Section 1819(h)(2)(B)(ii)(I) of the Act to cases, like this one, involving CMPs provides, “[a] principal is liable for penalties . . . under this section for the actions of the principal’s agent acting within the scope of the agency.”  42 U.S.C. § 1320a-7a(l); see also 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I).  An appellate panel of the

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DAB has interpreted this section “to mean that facilities may indeed be held responsible for the actions of their employees in determining whether the facilities have complied with applicable regulations.”  Kindred, DAB No. 2792 at 12 (citing Ridge Terrace, DAB No. 1834 at 7-8 (2002)).5

Petitioner’s related argument that I should not hold it responsible for the actions of CNA 1 because to do so would amount to imposing “strict liability” is similarly unavailing.  See P. Br. at 1-2.  Appellate panels of the DAB have previously noted that “strict liability” is a tort concept that is inapplicable in proceedings conducted under 42 C.F.R. Part 498.  Springhill, DAB No. 2513 at 14 (citing Jennifer Matthew Nursing & Rehab. Ctr., DAB No. 2192 (2008); Briarwood Nursing Ctr., DAB No. 2115 at 11 n.8 (2007)).  Holding facilities “to standards set forth in the Medicare and Medicaid participation regulations . . . is not tantamount to applying ‘strict liability.’”  Springhill, DAB No. 2513 at 14. 

Petitioner additionally argues that it was in substantial compliance because it adopted and implemented policies to prevent neglect and abuse of residents.  Petitioner states that it “undertook extensive measures to ensure staff were trained on and familiar with how to appropriately use mechanical stand lifts, including utilization of the available straps to secure residents . . . [and] with the requirement that residents using mechanical stand lifts

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be transferred using two-person assists.”  P. Br. at 7-8.  Petitioner argues that it should not be held noncompliant for a “poor outcome” irrespective of its efforts because any change in those efforts would not have affected the outcome.  P. Br. at 7.  This argument misses the mark.

It is “immaterial” whether a facility had “general anti-neglect and anti-abuse policies and arguably took some steps to implement those particular policies” because “a finding of noncompliance with section [483.12(a)] may be based on ‘a facility’s failure to follow’ other policies . . . where . . . those other policies determine what the facility deems the goods and services necessary to avoid physical harm.”  Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 9 (2016) (quoting Avalon Place Kirbyville, DAB No. 2569 at 9-10 (2014)) (emphasis in original; internal quotation marks omitted).  Petitioner’s lift policy requiring two-person assists for mechanical lift transfers represented Petitioner’s determination of the “services to a resident that are necessary to avoid physical harm.”  42 C.F.R. § 483.5.  Petitioner admits that CNA 1 did not carry out this policy on December 19, 2017, when she transferred Resident 1 using a mechanical stand lift without the assistance of another staff member.  P. Br. at 3.  This failure to follow the facility’s policies represents a breakdown in Petitioner’s implementation of its anti‑abuse (and neglect) policy, because Petitioner’s staff did not provide the services to Resident 1 that Petitioner deemed necessary to avoid harm.

In sum, Petitioner, having elected to provide care to Resident 1 through CNA 1, cannot now disclaim responsibility for CNA 1’s neglect of Resident 1 while providing her care.  Consequently, I find that Petitioner, through CNA 1, violated Resident 1’s right to be free from neglect.  42 C.F.R. § 483.12(a)(1).  Petitioner’s neglect of Resident 1 caused her actual harm.  Accordingly, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1).

2. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)‑(2) (Tag F689) because Petitioner did not provide adequate supervision and assistance devices to safeguard Resident 1, who was at risk for falls.

Subsection 483.25(d) is part of the quality of care regulation at 42 C.F.R. § 483.25, which provides generally that “the facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices.”  Subsection 483.25(d) imposes specific obligations upon a facility to minimize accident hazards and prevent accidents, as follows:

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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.

In a number of decisions, appellate panels of the DAB have held that the regulations require that a facility address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  Meadowwood Nursing Ctr., DAB No. 2541 at 2 (2013) (citing Me. Veterans’ Home – Scarborough, DAB No. 1975 at 10 (2005)).6  Subsection 483.25(d)(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, DAB No. 2115 at 11 (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003) (facility must take “all reasonable precautions against residents’ accidents”)).  “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)).

CMS found Petitioner out of compliance with 42 C.F.R. § 498.25(d)(1)-(2) following the accident that occurred on December 19, 2017, in which Resident 1 was injured after falling during a transfer.  CMS Ex. 1 at 11-17.  CMS argues that Petitioner’s care of Resident 1 was deficient because, during the transfer in which Resident 1 was injured, staff did not use a two-person assist and failed to secure Resident 1 using the mechanical

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lift straps.  CMS Br. at 2, 11.  Petitioner asserts that it provided adequate supervision and assistive devices for Resident 1 and, accordingly, substantially complied with 42 C.F.R. § 498.25(d)(1)-(2).  P. Br. at 9-11.  Petitioner attributes the accident to CNA 1’s “inexplicable disregard of her knowledge of facility policy, the resident’s care plan, and her training concerning the use of mechanical stand lifts” and asserts that the accident was “unavoidable.”  Id. at 10-11.  Petitioner’s assertion is unpersuasive and unsupported by the evidence.

First, Petitioner’s argument that Resident 1’s fall was unavoidable is premised on the assumption that CNA 1’s actions can be viewed as distinct from those of the facility.  As I have explained in the previous section of this decision, Petitioner chose to provide care to its residents through CNA 1; therefore, her actions are Petitioner’s actions.  For the same reasons discussed above, I reject the argument that Petitioner is not responsible for CNA 1’s failure to provide Resident 1 with the level of supervision called for in Petitioner’s lift policy and in Resident 1’s care plan.

Resident 1 was at risk for falls, totally dependent for transfers, and vulnerable due to her diagnoses of right hip and bilateral knee arthroplasty, osteoarthritis, and orthostatic hypotension.  CMS Ex. 6 at 22-23.  Despite these known risks and the facility policy requiring that at least two persons perform transfers with a mechanical lift, CNA 1 used the mechanical stand lift to transfer Resident 1 without the assistance of other staff.  CMS Ex. 1 at 11-17; see CMS Ex. 5 at 1; CMS Ex. 7 at 17.  Further, CNA 1 did not secure Resident 1 using all the available straps on the mechanical stand lift.  Resident 1 fell during the transfer, sustaining a fracture to her right distal femur.  CMS Ex. 10 at 1, 11; CMS Ex. 11 at 21-22.

Based on these facts, I conclude that Petitioner did not substantially comply with 42 C.F.R. § 498.25(d)(1)-(2) because it failed to take “all reasonable measures” to protect Resident 1 from falling.  See Briarwood, DAB No. 2115 at 11.  As such, Petitioner failed to “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, DAB No. 2829 at 6 (internal quotation marks omitted).  Petitioner’s claim that Resident 1’s fall was unavoidable is untenable.  Nothing prevented CNA 1 from asking another staff member for assistance or from securing Resident 1 with the available straps during the transfer.  Either of these interventions might have prevented Resident 1’s accident.

These circumstances are sufficient to support a finding of noncompliance with 42 C.F.R. § 483.25(d)(1)-(2).  Appellate panels of the DAB have held that “[w]here a facility policy or a resident’s care plan requires staff to take specific measures in caring for a resident, the [DAB] has repeatedly held that those measures reflect the facility’s own determination of what it must do to attain or maintain the resident’s ‘highest practicable physical, mental, and psychosocial well-being’ as required by the overarching quality-of-

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care requirement.”  Heritage Plaza, DAB No. 2829 at 6 (citing Azalea Court, DAB No. 2352 at 9, aff’d Azalea Court v. U.S. Dep’t of Health & Human Servs., 482 F.App’x 460 (11th Cir. 2012)).  A facility’s “failure to comply with its own policies can support a finding that the facility did not achieve compliance with the regulatory standard.”  Bivins Memorial Nursing Home, DAB No. 2771 at 9 (2017) (citing Life Care Ctr. of Bardstown, DAB No. 2233 at 21-22 (2009)); see also Sheridan Health Care Ctr., DAB No. 2178 at 32 (2008) (observing that a facility’s adoption of a resident care policy supports an inference that the policy was “necessary to attain or maintain resident well-being”).

In summary, I conclude that Petitioner did not take all reasonable measures to provide supervision and assistive devices to minimize the fall risks to which Resident 1 was exposed.  Petitioner’s failure to implement its own policy and care-planned interventions put Resident 1 at risk for more than minimal harm.  Indeed, Resident 1 suffered a fracture of her distal femur as a result of her fall.  Thus, Petitioner was not in substantial compliance with the requirements of 42 C.F.R. § 483.25(d)(1)–(2). 

3. A per-instance CMP of $11,405 is reasonable.

My authority to review the reasonableness of a CMP imposed by CMS is limited by 42 C.F.R. § 488.438(e).  The limitations are:  (1) I may not set the CMP at zero or reduce it to zero; (2) I may not review CMS’s exercise of discretion to impose a CMP; and (3) I may only consider the factors specified by 42 C.F.R. § 488.438(f) when determining the reasonableness of the CMP amount.  The factors in section 488.438(f) 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.  The absence of culpability is not a mitigating factor.  The factors listed in § 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.

Unless a facility contends that a particular regulatory factor does not support the CMP amount, the administrative law judge must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).  My review of the reasonableness of the CMP is de novo and based upon the evidence in the record before me.  I am not required to defer to CMS’s determination of the reasonable amount of the CMP to impose, but I may only consider the regulatory factors described above.  My role is to determine whether the amount of any CMP imposed is “within reasonable bounds” considering the purpose of the Act and regulations.  Emerald Oaks, DAB No. 1800 at 12; see also CarePlex of Silver Spring, DAB No. 1683 at 17 (1999).  In this case, CMS imposed an $11,405 per-instance CMP,

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which is near the middle of the range permitted for per-instance CMPs.7  42 C.F.R. § 488.438(2); 45 C.F.R. § 102.3.

Petitioner does not specifically argue that the CMP imposed is not reasonable, but rather argues that the imposition of the penalty should be reversed.  P. Br. at 2.  Having considered the regulatory factors, I conclude that the CMP imposed in this case is reasonable.  Petitioner’s noncompliance underpinning the per-instance CMP was serious and caused actual harm to a resident.  Resident 1 was an extremely vulnerable resident.  Her documented diagnoses limited her independence; she therefore relied on Petitioner’s staff for mobility and transfers.  Yet, CNA 1 neglected Resident 1 on at least one occasion which resulted in Resident 1 suffering a fracture to her femur requiring surgery.  This incident demonstrates a breakdown in the implementation of Petitioner’s anti-abuse and lift policies.  As CNA 1 admitted, she had “always” done one-person assists in transferring Resident 1.  CMS Ex. 11 at 23.  Petitioner did not discover the neglect until CNA 1’s actions resulted in Resident 1’s serious injury.  Each of the factors, whether viewed separately or together, supports the amount of the CMP imposed.  Consequently, I conclude that the per-instance CMP imposed by CMS is reasonable. 

V.  Conclusion

For the reasons stated in this decision, I sustain CMS’s determinations.  I conclude that Petitioner was not in substantial compliance with the participation requirements at 42 C.F.R. §§ 483.12(a)(1) (Tag F600) and 483.25(d)(1)-(2) (Tag F689).  I further find reasonable the $11,405 per-instance CMP imposed for Petitioner’s noncompliance.

• 1. CMS and state survey agencies consider the scope and severity of deficiencies when selecting enforcement remedies.  CMS summarizes the scope and severity levels in a matrix published in the State Operations Manual (SOM).  SOM, CMS Pub. 100-07, chap. 7, § 7400.5.1 (Rev. 63, effective Sept. 10, 2010, was in effect at the time of the survey at issue) (in the current version of the SOM (Rev. 185, effective November 16, 2018), the scope and severity matrix appears at § 7400.3.1).  “Scope” describes how many residents are potentially affected by a particular deficiency.  Deficiencies may be “isolated,” “pattern,” or “widespread” in scope.  “Severity” describes the possible harm that a deficiency may cause.  A scope and severity level of A, B, or C describes a deficiency that causes no actual harm with the potential for minimal harm.  Facilities cited with deficiencies at level C or lower remain in substantial compliance.  42 C.F.R. § 488.301.  A scope and severity level of D, E, or F describes a deficiency that has caused no actual harm with the potential for more than minimal harm that is not immediate jeopardy.  A scope and severity level of G, H, or I describes a deficiency that has caused actual harm that is not immediate jeopardy.  Scope and severity levels J, K, and L describe deficiencies that pose immediate jeopardy to resident health or safety.
• 2. By letter dated April 5, 2018, CMS notified Petitioner that it was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) and was imposing a per-instance CMP of $11,405.  CMS Ex. 2.  Subsequently, by letter dated June 13, 2018, CMS notified Petitioner that it was also not in substantial compliance with 42 C.F.R. § 483.25(d)(1)‑(2).  CMS Ex. 3.  Petitioner filed hearing requests in response to each notice.  Petitioner’s hearing requests were docketed as C-18-982 and C-18-1218.  In an order issued September 7, 2018, I consolidated both hearing requests under Docket No. C-18-1218.
• 3. CMS increases the CMP amounts annually to account for inflation in compliance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. No. 114-74, § 701, 129 Stat. 584, 599 (2015).  See 81 Fed. Reg. 61,538 (Sept. 6, 2016).  Because CMS imposed the CMP in this case after February 3, 2017, but before October 11, 2018, the inflation-adjusted amounts for 2017 apply.  82 Fed. Reg. 9174, 9182 (February 3, 2017); see also 83 Fed. Reg. 51,369 (Oct. 11, 2018).
• 4. My conclusions of law appear as headings and subheadings in bold italic type.  My findings of fact appear in the supporting text.
• 5. Although the DAB has disclaimed reliance on common-law doctrines in assessing SNF compliance (Kindred, DAB No. 2792 at 12), the Restatement (Third) of Agency (Restatement) provides helpful background concerning the scope of agency, particularly in the context, relevant here, of an employee-employer relationship.  The Restatement provides, in pertinent part, “A principal is subject to vicarious liability to a third party harmed by an agent’s conduct when . . . as stated in § 7.07, the agent is an employee who commits a tort while acting within the scope of employment . . . .”  Restatement (Third) of Agency § 7.03(2)(a) (2006).  Section 7.07, in turn, describes the scope of employment as follows: 
  
  

  An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control.  An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.

  Id. § 7.07(2).  By this definition, providing care to Petitioner’s residents was well within the scope of CNA 1’s employment.  CNA 1 neglected Resident 1 while providing her care.  CNA 1’s care of Resident 1 served Petitioner’s purpose, even if she performed it in an impermissible, neglectful manner.

• 6. In 2016, CMS issued a final rule that re-designated and revised the provisions of 42 C.F.R. Part 483.  See Final Rule, Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68,688, 68,828 (Oct. 4, 2016).  Prior to 2016, the content of subsections 483.25(d)(1) and (2) was codified at subsections 483.25(h)(1) and (2).  The Meadowwood decision interpreted 42 C.F.R. § 483.25(h)(1) and (2), as did the other decisions cited in this paragraph.  I find it appropriate to rely on the reasoning of these decisions in the present case because there was no substantive change to the language when 42 C.F.R. § 483.25(h)(1) and (2) were recodified as § 483.25(d)(1) and (2).
• 7. As previously explained, the maximum per-instance CMP amount for 2017 was $20,965.  82 Fed. Reg. 9182.