Palm Grove Health Care Center, DAB CR5266 (2019)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS), sustaining its determination to impose a per instance civil money penalty of $11,605 against Petitioner, Palm Grove Health Care Center, a skilled nursing facility.

I.  Background

With its motion for summary judgment CMS filed exhibits that it identified as CMS Ex. 1-CMS Ex. 11.  In its opposition Petitioner filed exhibits that it identified as P. Ex. 2-P. Ex. 10.  I do not receive these exhibits into evidence inasmuch as I grant summary judgment based on undisputed material facts.  However, I cite to some of these exhibits either to illustrate facts that are not in dispute or to discuss Petitioner’s fact allegations and arguments.

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II  Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether Petitioner failed to comply substantially with a Medicare participation requirement and whether a per-instance civil money penalty of $11,605 is a reasonable remedy.

B. Findings of Fact and Conclusions of Law

CMS alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(d).  This regulation provides at subsection (d)(2) that a resident of a skilled nursing facility must receive adequate supervision and assistance devices to prevent the resident from sustaining an accident.

The subsection imposes two fundamental duties of care on a skilled nursing facility.  First, it must assess each of its residents for possible accident risks.  Second, it must implement every intervention that it determines to be appropriate in order to protect any resident who is assessed to be at risk for sustaining an accident.

In this case, CMS alleges that Petitioner failed to discharge the second duty because it failed to provide a resident, identified as Resident A, with adequate supervision despite the fact that its staff had assessed the resident to be at risk for falling and had mandated that the resident receive supervision.  CMS bases its allegation of noncompliance on the following facts.

Resident A, an elderly man, had a history of falls, including a fall that resulted in his sustaining a fracture.  CMS Ex. 7 at 120, 147, 150-62.  Petitioner’s staff assessed the resident as being at risk for sustaining falls.  CMS Ex. 1 at 3; CMS Ex. 5 at 2; CMS Ex. 7 at 3-4.  In order to protect the resident against falling, Petitioner’s staff developed a plan of care that included providing the resident with supervision when he used the bathroom.  CMS Ex. 7 at 141.

On September 20, 2017, Resident A informed a nursing assistant on Petitioner’s staff that he needed to use the bathroom.  At that time, another resident who was being assisted by the nursing assistant occupied the bathroom in the resident’s room.  The nursing assistant escorted Resident A, in his wheelchair, to another resident’s room and told him that he could use the bathroom there.  The nursing assistant left Resident A alone and without supervision while he used the bathroom.  CMS Ex. 1 at 3-6; CMS Ex. 5 at 2-3, 9-10; CMS Ex. 6 at 1-2, 4, 6-7, 9, 11-16; P. Ex. 7 at 6.  While Resident A was unsupervised, he was confronted by

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another resident, Resident B, who pushed Resident A, causing him to fall and to sustain a fractured hip.  CMS Ex. 7 at 9-12, 21, 26-28, 34-35.

These facts are sufficient to establish that Petitioner’s staff failed to provide Resident A with the supervision that the staff determined that the resident required.  Indeed, the facts alleged by CMS are sufficient to establish noncompliance even if Resident B had not confronted Resident A, Resident A had not fallen, and Resident A had not sustained an injury.  That is because these facts establish that Petitioner’s staff failed to discharge a duty to Resident A that the staff had assumed, which was to provide Resident A with supervision when he used the bathroom.  The noncompliance established by the facts offered by CMS consists of the failure to supervise Resident A, noncompliance that exists whether or not the resident fell while unsupervised and whether or not the resident sustained an injury as a result of that fall.

If not rebutted by Petitioner, the facts offered by CMS are more than adequate to prove that Petitioner failed to provide Resident A with the care mandated by 42 C.F.R. § 483.25(d)(2).

I have considered the facts alleged and the arguments made by Petitioner in opposition to CMS’s motion.  I find that Petitioner did not establish that any of the critical material facts alleged by CMS are disputed, nor did it offer facts establishing affirmative defenses to the allegation of noncompliance that is at issue here.  Indeed, Petitioner concedes the fact central to this case, that Petitioner’s staff left Resident A unattended after he was taken to the bathroom on September 20, 2017.

First, Petitioner contends that Resident A preferred to use the bathroom by himself and did not require hands on assistance while using the bathroom.  Petitioner’s opposition to CMS’s motion (Petitioner’s brief) at 3.  It asserts that the resident needed only “minimal” supervision.  Id. at 3-4.

I accept these assertions as true for purposes of deciding CMS’s motion.  But, there is an obvious difference between needing minimal supervision and not needing any supervision.  Petitioner’s staff determined that the resident needed at least some supervision while using the bathroom – a determination supported by the resident’s history of falls – and it directed that the resident be provided with such supervision whenever he used the bathroom.  However, on September 20, 2017, the staff abdicated its responsibility to Resident A, leaving him completely unsupervised when he attempted to use the bathroom.

Petitioner asserts that, on September 20, the nursing assistant attending to Resident A could not be in two places simultaneously.  On that date she was already

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assisting another resident when Resident A made an “urgent request” to use the bathroom.  Petitioner’s brief at 5.  Petitioner contends that the nursing assistant could not call for other staff to assist Resident A because “it was meal time and no staff was immediately available.”  Id.  Petitioner suggests that the nursing assistant did her best to cope with the situation, wheeling Resident A in his wheelchair to what she assumed was an unoccupied room with an unoccupied bathroom and leaving him alone for a very brief period of time.  Id.

Again, I assume these facts to be true, but they provide Petitioner with no defense.  Petitioner had a duty to provide requisite care to Resident A and that included providing him with supervision when he used the bathroom.  It is no defense for Petitioner to assert that it had inadequate staff available on September 20, 2017, to enable the resident to receive the supervision that he needed.

Petitioner asserts that a physical confrontation between Resident B and Resident A was unforeseeable and could not have been planned for.  According to Petitioner, Resident B was well-liked and friendly.  Petitioner’s brief at 5.  Petitioner asserts that its staff had not even a slight expectation that Resident B might become physically aggressive in confronting Resident A.  Consequently, according to Petitioner, the confrontation between Resident B and Resident A was not reasonably foreseeable.  Id. at 5-6.

But, Petitioner’s liability arises from its failure to provide supervision to Resident A and not from the confrontation that occurred between Resident B and Resident A.  Petitioner would have been noncompliant on September 20, 2017, even if there was no confrontation between Resident B and Resident A and even if Resident A had used the bathroom successfully without any supervision by Petitioner’s staff.  The directive for supervision in the resident’s plan of care was intended as insurance to protect the resident from falling.  Petitioner failed to provide that directed care.  That is the essence of its noncompliance, whether or not the consequence of that noncompliance was that the resident fell or was pushed.

Petitioner avers that Resident A was proud of his independence and could ambulate on his own, albeit slowly.  Petitioner’s brief at 6.  According to Petitioner, there were times when the resident refused to rely on a walker or wheelchair for ambulation.  Petitioner asserts that the resident had the right to refuse supervision if he wanted to.  Id.

This argument is a red herring.  I do not question that the resident was independent or that he at times refused to use assistance devices when he attempted to ambulate.  That notwithstanding, Petitioner offers nothing to suggest that on September 20, 2017, the resident requested to use the bathroom on his own

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without assistance or supervision.  The nursing assistant attending to Resident A made the decision not to supervise him on that date.

Petitioner contends that Resident A was able to protect himself against accidents because he was able to use a call light.  It avers that the resident regularly used his call light when he needed assistance.  Petitioner’s brief at 7.  From this, Petitioner asserts that Resident A “did not have a condition which required a staff member to be right outside the door when Resident A was using the restroom.”  Id.

I assume to be true Petitioner’s contention that the resident knew how to use a call light and in fact did so, from time to time.  But, those facts do not support Petitioner’s assertion that the resident did not have a condition that required supervision when he used the bathroom.  Petitioner’s staff, after assessing Resident A in light of his history of falling, came to the opposite conclusion.  The staff determined that the resident needed precisely the supervision that the staff failed to provide to him on September 20, 2017.  That supervision clearly included requiring that staff be nearby to provide immediate assistance should the resident need it.

Ability to use a call light is no substitute for supervision.  A call light signals to staff, who may be many feet or yards away, that a resident needs help.  By contrast, supervision allows for immediate intervention should that be necessary.  The fact that Resident A could use a call light in no way relieved Petitioner’s staff of the need to supervise the resident.

Petitioner argues that Resident A needed only minimal supervision and that he wanted privacy when he used the bathroom.  Petitioner’s brief at 8.  That may be so, but minimal supervision does not equate to no supervision.

Petitioner argues that CMS’s case must fail because CMS relies on the erroneous conclusion that a violation existed because Resident A allegedly fell.  It contends that the resident didn’t fall but was pushed, an event that was not only unforeseeable but that could not have been protected against by supervising Resident A.  Petitioner’s brief at 10-13.

I’ll leave aside the question of whether a nursing assistant’s presence when Resident A attempted to use the bathroom on September 20, 2017, would have prevented a confrontation between Resident B and Resident A.  CMS’s case for noncompliance is not predicated on Resident A falling.  As I have discussed, it is based on the lack of supervision of Resident A in direct violation of the resident’s plan of care.  That absence of supervision, in and of itself, is sufficient to prove noncompliance.  The results of that lack of supervision are not a necessary element, or indeed, even an important element, of CMS’s case.

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Petitioner argues that the facts establish that it provided the type of supervision that the resident needed, and that was adequate under the circumstances.  Petitioner’s brief at 13.  It rests that argument on the resident’s asserted independence and his ability to use a call light when he needed assistance.  It is unnecessary for me to reiterate what I’ve said in response to these facts.  The resident’s plan of care coupled with the staff’s assessment of Resident A establishes that the staff determined that the resident needed supervision when ambulating and when using the bathroom.  Whether the requisite supervision was minimal or more than that does not address the fact that on September 20, 2017, Petitioner’s staff provided the resident with no supervision whatsoever.

CMS determined to impose a civil money penalty of $11,605 in order to remedy the instance of noncompliance that occurred on September 20, 2017.  That penalty amount falls within the middle of the range of penalties that CMS may impose for an instance of noncompliance.  42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3.  In deciding whether a penalty amount is reasonable, I may consider factors set forth at 42 C.F.R. §§ 488.438(f)(1)-(4) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors may include, among other things, the seriousness of noncompliance as well as a facility’s culpability.

The undisputed material facts plainly establish Petitioner’s noncompliance to have been serious.  Petitioner’s staff knew that Resident A was at serious risk for sustaining injury from falls.  The staff knew that because the resident had fallen previously and because the resident had sustained a fracture from a fall that occurred in the past.  The staff knew also that the resident was unsteady on his feet and that he ambulated safely only with the assistance of a wheelchair or a walker.  See CMS Ex. 7 at 150, 162.  And, the staff also knew that the resident was not necessarily cognizant of his limitations given that from time to time he expressed a desire to ambulate without assistance.  See CMS Ex. 7 at 147.

In light of those facts, the staff determined that the resident needed to be supervised when he ambulated and when he used the restroom.  The staff’s knowledge of the resident’s very evident limitations coupled with their determination that the resident needed assistance (whether minimal or more intrusive) made it absolutely imperative that the staff provide the resident with the supervision that the staff had ordered for him.

But, the staff failed to discharge that duty.  It is no excuse that on the day in question the staff was very busy or that there was an inadequate number of nursing assistants to provide Resident A with the supervision that he needed.  On September 20, 2017, in full knowledge of the resident’s vulnerability, Petitioner’s

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staff disregarded the resident’s plan of care and left him exposed to the risk of sustaining a fall.

The seriousness of Petitioner’s noncompliance coupled with its culpability (the decision by the nursing assistant on September 20 not to supervise Resident A was a deliberate and calculated act) is more than sufficient to justify a mid-range per-instance penalty of $11,605.

In arguing for this penalty amount, CMS asserts that it is reasonable in light of the serious harm sustained by Resident A.  That said, I would sustain this penalty even if the resident had not fallen (or been pushed) and had not sustained any physical injury.  The danger that the staff exposed the resident to on September 20, 2017, is more than adequate to justify the penalty whether or not the consequence of doing so was that the resident sustained an injury.

Petitioner contends that the facts do not show that there was ever a serious risk of harm to Resident A.  It contends also that it should not be adjudged culpable for the failure to supervise the resident because that was, at worst, a “judgment error” by Petitioner’s staff.  Petitioner’s brief at 16.  I do not find that the undisputed facts support these characterizations.  There obviously was a serious risk of harm to Resident A resulting from failure to supervise him.  The undisputed facts establish that Petitioner’s staff knew that the resident was at risk of serious harm if not supervised.  As for the argument that the failure to supervise Resident A was a judgment error, I agree with that characterization.  But, the judgment error in this case constituted a deliberate decision by a member of Petitioner’s staff not to provide the resident with required supervision.  That is evidence of a high degree of culpability.