SUBJECT: San Angelo Regency House,

Petitioner,

Centers for Medicare & Medicaid Services

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

On October 9, 2001, San Angelo Regency House (Petitioner) requested review of the August 3, 2001 decision of Administrative Law Judge (ALJ) José A. Anglada upholding the authority of the Centers for Medicare and Medicaid Services (CMS)⁽¹⁾ to impose a civil money penalty (CMP) and concluding that the CMP amount of $250 per day was reasonable. San Angelo Regency House, DAB CR806 (2001)(ALJ Decision). Petitioner contended that the ALJ erred in sustaining the two deficiency findings that were the basis for the CMP, and it argued that it was unfair to penalize it for an incident that, it alleged, had not resulted in injury to a resident, particularly given Petitioner's excellent compliance history.

We find no error in the ALJ's determinations of law and we find that substantial evidence exists to support each of the challenged ALJ factual findings. For the reasons explained below, we affirm the ALJ Decision and sustain all of the findings of fact and conclusions of law (FFCLs) therein.

Factual and Procedural Background

Petitioner is a nursing facility located in San Angelo, Texas, that was subject to two surveys conducted by the Texas Department of Human Services (state survey agency) on March 2, 2000, and April 27, 2000. Those surveys resulted in findings that Petitioner was not in substantial compliance with federal requirements for skilled nursing facilities, and that the deficiencies constituted actual harm that was not immediate jeopardy. The state survey agency recommended and CMS assessed a CMP of $250 per day for 22 days commencing on April 27, 2000.

Petitioner filed a timely request for hearing, and a hearing was held before the ALJ from February 28 through March 1, 2001. Based on the testimony at the hearing, the documentary evidence, the arguments of the parties, and the applicable law and regulations, the ALJ issued a decision finding that Petitioner was not in substantial compliance with program requirements during the relevant period. The ALJ determined that CMS was therefore authorized to impose a CMP against Petitioner for the period of noncompliance, and that the rate of $250 per day was reasonable. ALJ Decision at 2.

Petitioner filed a request for review of the ALJ Decision that did not conform to the regulations governing such requests; it did not specify the issues, the findings of fact or conclusions of law with which it disagreed, or its basis for contending that the findings and conclusions were incorrect. 42 C.F.R. � 498.82(b). CMS filed a response in which it sought dismissal of the request because of these shortcomings, but it also addressed what it understood Petitioner's objections to the ALJ Decision to be. Petitioner did not file a reply brief although it was given the opportunity to do so. October 12, 2001 Letter to Petitioner at 1. We decline to dismiss Petitioner's request for review even though it does not technically meet the regulatory requirements, because we are able to understand from the brief what the bases are for Petitioner's exceptions. Instead, we will address the Petitioner's contentions, since they evidence confusion about the ALJ Decision.

Legal Background

The statute and regulations provide a number of remedies that may be imposed by CMS when a facility is found not to comply substantially with the requirements for participation in the Medicare and Medicaid programs. Sections 1819 and 1919 of the Social Security Act; 42 C.F.R. Parts 483, 488, and 498. The remedies selected may include termination, alternative sanctions (such as denial of payment for new admissions or CMPs), or both.

"Substantial compliance" is defined as "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health and safety than the potential for causing minimal harm." 42 C.F.R. � 488.301.

The specific requirement of participation with which Petitioner was found to be out of substantial compliance is at 42 C.F.R. � 483.25:

Quality of care. Each 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.

* * *

(h) Accidents. The facility must ensure that-

* * *

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

42 C.F.R. � 483.25 (bolding and italics in original).

Sections 1819(h) and 1919(h) of the Act authorize imposition of CMPs to remedy noncompliance at amounts not to exceed $10,000 per day. Regulations provide for different ranges of CMPs depending on the nature and seriousness of the non-compliance. 42 C.F.R. �� 488.408. In particular, in cases involving less than immediate jeopardy determinations, CMS may impose either a per day CMP in the range of $50 to $3,000, or a per instance CMP of $1,000 to $10,000. 42 C.F.R. �� 488.408(d).

Our Standard of Review

Before the ALJ, the sanctioned facility must prove substantial compliance by the preponderance of the evidence, once CMS has established a prima facie case that the facility was not in substantial compliance with relevant statutory or regulatory provisions. See Cross Creek Health Care Center, DAB No. 1665 (1998), applying Hillman Rehabilitation Center, DAB No. 1611 (1997)(Hillman), aff'd, Hillman Rehabilitation Center v. HHS, No. 98-3789(GEV), slip op. at 25 (D.N.J. May 13, 1999).

Upon review of an ALJ Decision, the standard of review we apply on a disputed conclusion of law is whether the ALJ erred. Our standard of review on a disputed finding of fact is whether the ALJ's finding is supported by substantial evidence on the record as a whole. Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs; see also Hillman, at 6 (1997); Fairview Nursing Plaza, Inc., DAB No. 1715, at 2 (2000); South Valley Health Care Center,DAB No. 1691 (1999).

We have repeatedly held that the role of appellate review is not to substitute our evaluation of the evidence for that of the ALJ, but only to determine whether the factual findings made by the ALJ are supported by substantial evidence in the record as a whole. See Lake Cook Terrace Center, DAB No. 1745, at 6 (2000); Beverly Health and Rehabilitation - Spring Hill, DAB No. 1696, at 40 (1999).

Petitioner did not identify which of the ALJ's findings of fact and conclusions of law (FFCLs) it challenged, but the gist of Petitioner's arguments is that all of them are incorrect. Thus, we repeat all of the FFCLs here.

1. The facility was not in substantial compliance with federal participation requirements from April 27, 2000 through May 18, 2000.

a. Resident Number 1 (R1)

The facility failed to provide adequate supervision and assistance devices to resident number 1. This failure resulted in actual harm. CMS Ex. 4.

b. Resident Number 3 (R3)

The facility failed to provide adequate supervision and assistance devices to resident number 3. This resulted in actual harm. CMS Ex. 26, at 4.

B. (sic) A basis exists to impose remedies against Petitioner for deficiencies that are at the less than immediate jeopardy level of noncompliance.

C. (sic) The amount of the penalty imposed by CMS is reasonable.

Petitioner's brief challenged the ALJ's findings with respect to R1 and R3 in order, so we will follow that organization in our analysis of its contentions. Then we address its contentions concerning the amount of the CMP.

The ALJ's determinations concerning R1 were correct as a matter of law and were supported by substantial evidence in the record.

Petitioner did not challenge the ALJ's recitation of the events preceding R1's fall on January 15, 2000 that resulted in a fracture of her femoral neck and required surgery for total hip replacement. To summarize, R1 had a near-fall on January 4, 2000. She was then taken to the hospital emergency room, where she was diagnosed as having suffered a transient ischemic attack (TIA). On January 8, 2000, R1 fell out of her bed and injured her head. Petitioner revised R1's care plan to implement the use of side rails on the bed to prevent the resident from falling out of bed. On January 9, 2000, R1 was again found on the floor next to her bed. No other changes to R1's care plan were made, although the record showed that she continued to get out of bed despite the side rails and wander around the facility without asking for the assistance with ambulation that the care plan stated she needed. ALJ Decision at 5-12.

The ALJ considered and rejected Petitioner's assertions that it provided adequate protection to R1 from the risk of falls, and he concluded that she suffered actual harm on January 15 from Petitioner's failure to provide adequate supervision and assistance devices to her. Id.

Petitioner contended that the incident involving R1 was not a deficiency because whether additional interventions were needed for R1 was a judgment call, and the accident suffered by R1, while regrettable, was not reasonably preventable. Petitioner stated that its policy was not to take all interventions that are possible at the first sign of falls risk. Petitioner Br. at 1.

Petitioner's contention ignores the ALJ's analysis, amply supported by the record before him, that there were several events between R1's diagnosis of TIA on January 4 and her injurious fall on January 15 that gave Petitioner notice that R1 was at high risk of falling while getting out of her bed, and that the bed side rails and supervision provided to her were not adequate to protect her from that risk. These events were her fall on January 9 while the side rails were in place and her multiple unassisted exits from the bed to wander the facility during the nights of January 10 and January 11. The ALJ also cited expert testimony as to preventative measures which Petitioner could have but did not take. ALJ Decision at 10-11. Accordingly, we reject Petitioner's characterization of R1's situation as being at the first stage of falls risk, and of the accident as not preventable. We therefore affirm FFCL 1a.

The ALJ's determinations concerning R3 were correct as a matter of law and were supported by substantial evidence in the record.

Petitioner did not dispute before the ALJ that R3 was a resident who had been assessed as needing total assistance during toileting; that while she was being attended by two certified nurse aides (CNAs) on a bedside commode, one of the CNAs was asked by the charge nurse to assist with another resident and the other CNA departed the room and left R3 unattended; and that R3 fell to the floor while alone and was found there by a maintenance man. ALJ Decision at 12-13.

With respect to R3, Petitioner contended that it should not be penalized for the poor judgment of its CNAs who left the resident unsupervised, particularly in light of the facts that the state survey agency's inspection was triggered by a self-reporting provision, the facility had previously had three annual surveys that found no deficiencies, and there was no actual harm to the resident. Petitioner also offered this summary concerning the incident involving R3:

1. There was no actual harm, thus G level deficiency is incorrect.
2. Judge Anglada's decision cites on the last page, "In one case, the resident suffered grievous bodily harm. Consequently, a CMP of $250 per is not unreasonable." It appears Judge Anglada has wrapped the two incidents into a package which is incorrect. The second incident must include actual harm for CMPs to be imposed.
3. Judge Anglada's Conclusion states "Petitioner was not complying with federal participation requirements in the Medicare program at the less than immediate jeopardy level." This is not correct. No allegation of immediate jeopardy was made by CMS.
4. There is no evidence in the record to support Judge Anglada's assertions (on page 14 of the Decision) about the actions of the charge nurse. I feel his assertions are wrong and influenced his decision.
5. The citation if one were correct would not be F324.

Petitioner Br. at 2. Since items 2 and 3 of Petitioner's summary deal with the reasonableness of the CMP amount, we discuss them in the next section.

We find all of Petitioner's assertions concerning the ALJ's findings about R3 to be meritless. The ALJ specifically stated his disagreement with Petitioner that the accident suffered by R3 was attributable to "one rogue aide." ALJ Decision at 15. Rather, the ALJ found the fall was also attributable to the conduct of a second CNA and the charge nurse:

R3 suffered a fall and injury not only because one nurse aide left the resident alone of her own accord, but also because a charge nurse removed one of two nurse aides required to provide assistance to R3. The record is unequivocal that R3 required total assistance while toileting, that she was not to be left alone, and that two people had to be present for transferring after she had been toileted. ALJ Ex. 1, at 2,3; CMS Ex. 34, at 1. Consequently, Petitioner, by the converging conduct of two nurse aides and one supervisory charge nurse, neglecteded R3 . . . ."

Id.

Consequently, we reject Petitioner's contention that it is being penalized for the action of one CNA.

Petitioner's contention concerning the ALJ's statements about the actions of the charge nurse as being without basis in the record is also without merit. The ALJ stated that it was "inexcusable" that the charge nurse called away one aide from a resident who required two aides for transfers, and that there was no evidence that the charge nurse took any action to ensure that R3 would have the assistance she needed when she was ready for a transfer. Petitioner has offered no excuse and has pointed to no evidence in the record contradicting these findings.

Petitioner also did not explain its assertion before us that R3 suffered no actual harm. Petitioner did not dispute the ALJ's finding that R3 suffered injury to her head and back, which was reflected in the incident report filed by Petitioner (ALJ Decision at 12), nor did it attempt to discount the indignity of being found on the floor by a maintenance man. Thus, we conclude that there is substantial evidence in the record to support the finding of actual harm to R3.

We therefore affirm FFCL 1b.

The ALJ's conclusions that the CMP was authorized and that the amount imposed was reasonable are not legally erroneous and are supported by substantial evidence in the record.

Petitioner did not explain why the fact that the state survey agency's finding was triggered by a self-reported accident should excuse it from a CMP. We know of no provisions in the applicable regulations or statutes that would support this result. Moreover, it was the state survey agency's finding upon investigation that the accident was attributable to Petitioner's continued failure to substantially comply with program requirements involving accident prevention that was the basis for the CMP, not the mere report of an accident.

Petitioner's assertion that its previously unblemished compliance history should excuse it from this CMP also fails, because there is no provision in the applicable regulations or statutes excusing first-time offenders. Moreover, the ALJ Decision noted that the CMS official who set the CMP amount testified that she had considered Petitioner's previous compliance record, but she also considered that Petitioner had been put on notice of the deficiency during the survey resulting from the first accident. ALJ Decision at 15, citing Tr. at 196-197. (CMS imposed the CMP starting with the date of the second survey, although it could have started the CMP from the date of the first survey finding the facility out of substantial compliance. See 42 C.F.R. � 488.440(a)(1).)

Petitioner also read out of context the ALJ's statement that, "[i]n one case, the resident suffered grievous bodily harm" (ALJ Decision at 15), as indicating that the ALJ was basing the CMP on harm to only one resident. However, the sentences immediately preceding the quoted sentence state, "The evidence in this case shows the deficiencies to be of a serious nature. Pertinent to this is the fact that the residents affected by the noncompliance suffered actual harm." Id. (emphases added). The use of plurals for deficiency and resident confirms that the ALJ based his CMP determination on the actual harm suffered by both R1 and R3. Also, in FFCL 1.b., the ALJ specifically found that the fall resulted in actual harm to R3. We therefore reject these implicit attacks on the ALJ's determination that the amount of the CMP was reasonable.

Petitioner also misread the ALJ's statement that "Petitioner was not complying with federal participation requirements in the Medicare program at the less than immediate jeopardy level," (ALJ Decision at 15) as somehow implying that the ALJ believed that an allegation of immediate jeopardy had been made. However, it is clear from the decision and from the amount of CMP sustained by the ALJ that he understood that the state survey agency and CMS had determined the deficiencies to be at a level that did not amount to immediate jeopardy.

Finally, Petitioner did not explain what it meant by its statement that if there were a deficiency, it should not be cited under Tag F324. In any event, since the basis for the CMP was always stated as Petitioner's failure to substantially comply with the requirements of 42 C.F.R. � 483.25, any misnumbering of the related tag would be immaterial to the result here.

Conclusion

For the reasons stated above, we affirm and adopt all of the FFCLs in the ALJ Decision and sustain the CMP in the amount of $250 per day for 22 days beginning on April 27, 2000.

Donald F. Garrett

Marc R. Hillson

M. Terry Johnson
Presiding Board Member

1. CMS was previously named the Health Care Financing Administration (HCFA). See 66 Fed. Reg. 35,437 (July 5, 2001).