Golden Living Center - Fredericksburg, DAB CR5343 (2019)

DECISION

We again consider a long-term-care facility’s obligation to protect vulnerable residents and staff from repeated attacks by a demented and aggressive resident.

Petitioner, Golden Living Center – Fredericksburg, is a long-term-care facility, located in Fredericksburg, Virginia, that participates in the Medicare program.  Following a survey, completed June 21, 2016, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with 36 Medicare program requirements and that its deficiencies posed immediate jeopardy to resident health and safety.  CMS imposed civil money penalties (CMPs) of $5,100 per day for 205 days of immediate jeopardy and $250 per day for 75 days of substantial noncompliance that did not pose immediate jeopardy.

Petitioner has appealed just one deficiency:  42 C.F.R. § 483.25(h).  CMS now moves for summary judgment, which Petitioner opposes.

I grant CMS’s motion.  As discussed below, the undisputed evidence establishes that the facility was not in substantial compliance with 36 program requirements, including

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section 483.25(h); that deficiency posed immediate jeopardy to resident health and safety; and the penalties imposed are reasonable.

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 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 survey skilled nursing facilities in order to determine whether they 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, and 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, on June 21, 2016, surveyors from the Virginia Department of Health (state agency) completed an extended survey of the facility.  CMS Ex. 1.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with the following program requirements:

• 42 C.F.R. § 483.10(b)(4) (Tag F155) (resident rights – right to refuse treatment and formulate advance directives) 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);
• 42 C.F.R. § 483.10(b)(11) (Tag F157) (resident rights:  notification of changes) cited at scope and severity level E (pattern of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.10(c)(6) (Tag F160) (resident rights:  conveyance of resident funds upon death) cited at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.12(a)(7) (Tag F204) (discharge notice) cited at scope and severity level D;

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• 42 C.F.R. § 483.13(c)(1)(ii)-(iii), and 483.13(c)(2)-(4) (Tag F225) (staff treatment of residents:  investigate and report allegations of abuse) cited at scope and severity level E;
• 42 C.F.R. § 483.13(c) (Tag F226) (staff treatment of residents:  policies to prohibit abuse and neglect) cited at scope and severity level E;
• 42 C.F.R. § 483.15(a) (Tag F241) (quality of life:  dignity) cited at scope and severity level D;
• 42 C.F.R. § 483.15(e)(2) (Tag F247) (quality of life:  notice of room/roommate change) cited at scope and severity level D;
• 42 C.F.R. § 483.15(g)(1) (Tag F250) (quality of life:  medically-related social services) cited at scope and severity level D;
• 42 C.F.R. § 483.15(h)(1) (Tag F252) (quality of life:  safe, clean, comfortable environment) cited at scope and severity level D;
• 42 C.F.R. § 483.15(h)(2) (Tag F253) (quality of life:  housekeeping and maintenance services) cited at scope and severity level D;
• 42 C.F.R. § 483.20(b)(1) (Tag F272) (comprehensive resident assessments) cited at scope and severity level D;
• 42 C.F.R. § 483.20(g)-(j) (Tag F278) (resident assessments:  accuracy) cited at scope and severity level D;
• 42 C.F.R. § 483.20(d) and 483.20(k)(1) (Tag F279) (resident assessments:  use and development of comprehensive care plans) cited at scope and severity level D;
• 42 C.F.R. §§ 483.10(d)(3) and 483.20(k)(2) (Tag F280) (resident assessments:  comprehensive care plans and resident rights) cited at scope and severity level E;
• 42 C.F.R. § 483.20(k)(3)(i) (Tag F281) (resident assessments:  comprehensive care plans – professional standards of quality) cited at scope and severity level D;
• 42 C.F.R. § 483.20(k)(3)(ii) (Tag F282) (resident assessments:  comprehensive care plans – services provided) cited at scope and severity level D;
• 42 C.F.R. § 483.25 (Tag F309) (quality of care) cited at scope and severity level G;

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• 42 C.F.R. § 483.25(c) (Tag F314) (quality of care:  prevention of pressure sores) cited at scope and severity level G;
• 42 C.F.R. § 483.25(d) (Tag F315) (quality of care:  urinary incontinence) cited at scope and severity level D;
• 42 C.F.R. § 483.25(f)(1) (Tag F319) (quality of care:  appropriate treatment and services for mental/psychological functioning) cited at scope and severity level D;
• 42 C.F.R. § 483.25(h) (Tag F323) (quality of care:  accident prevention) cited at scope and severity level J (isolated instance of substantial noncompliance that poses immediate jeopardy to resident health and safety);1
• 42 C.F.R. § 483.25(k) (Tag F328) (quality of care:  special needs) cited at scope and severity level D;
• 42 C.F.R. § 483.25(l) (Tag F329) (quality of care:  unnecessary drugs) cited at scope and severity level E;
• 42 C.F.R. § 483.30(b) (Tag F354) (nursing services:  registered nurses) cited at scope and severity level E;
• 42 C.F.R. § 483.35(i) (Tag F371) (dietary services:  sanitary conditions) cited at scope and severity level E;
• 42 C.F.R. § 483.40(c)(1)-(2) (Tag F387) (physician services:  frequency of visits) cited at scope and severity level E;
• 42 C.F.R. § 483.60(a), (b) (Tag F425) (pharmacy services:  procedures and consultation) cited at scope and severity level E;
• 42 C.F.R. § 483.65 (Tag F441) (infection control) cited at scope and severity level D;
• 42 C.F.R. § 483.75(e)(5)-(7) (Tag F496) (administration:  nurse aide training and registry) cited at scope and severity level D;

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• 42 C.F.R. § 483.75(e)(8) (Tag F497) (administration:  nurse aide training) cited at scope and severity level E;
• 42 C.F.R. § 483.75(f) (Tag F498) (administration:  nurse aide proficiency) cited at scope and severity level E;
• 42 C.F.R. § 483.75(j)(1) (Tag F502) (administration:  laboratory services) cited at scope and severity level E;
• 42 C.F.R. § 483.75(j)(2)(i) (Tag F504) (administration:  laboratory services) cited at scope and severity level D;
• 42 C.F.R. § 483.75 (l)(1) (Tag F514)  (administration:  clinical records) cited at scope and severity level E; and
• 42 C.F.R. § 483.75(o)(1) (Tag F520) (administration:  quality assessment and assurance) cited at scope and severity level F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm);

CMS Exs. 1, 36.2

Based on a re-visit survey, completed September 6, 2016, CMS determined that the facility returned to substantial compliance on August 30, 2016.  CMS Ex. 38.

CMS imposed against the facility CMPs of $5,100 per day for 205 days of immediate jeopardy (November 24, 2015 – June 15, 2016), and $250 per day for 75 days of substantial noncompliance that did not pose immediate jeopardy (June 16 – August 29, 2016), for penalties totaling $1,064,250 ($1,045,500 + $18,750).  CMS Ex. 38.

Petitioner timely requested review.

CMS now moves for summary judgment.  With its motion and brief (CMS Br.), CMS submits 42 exhibits (CMS Exs. 1-42).  Petitioner opposes summary judgment and, with its brief (P. Br.), submits five exhibits (P. Exs. 1-5).  CMS asked leave to supplement its exchange (which I grant) and has replied to Petitioner’s brief (CMS Reply).

In my initial order, I directed the parties to “cite the exhibit number and relevant page number” of any exhibit cited to support an argument.  Acknowledgment and Initial Pre-

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Hearing Order at 4, ¶ 7 (“If a party’s argument relies on a particular exhibit, the party must cite the exhibit number and relevant page number.”) (emphasis added).  In opposing summary judgment, Petitioner has come forward with many assertions, without providing citations to the record, much less citing specific pages.  Instead, it claims generally that “material facts” are found in its witnesses’ written declarations and cites to “P. Exs. 1-6” (a mistake, inasmuch as Petitioner submitted just five exhibits).  P. Br. at 6.  Petitioner’s brief includes no more specific citations to any of the purported “material facts” included in these exhibits.3

Petitioner’s failing to comply with my order interferes with the speedy and orderly conduct of these proceedings.  I either ignore the testimony entirely or parse through the pages of all six documents (which I am not required to do) to find the support for Petitioner’s assertions.  As I advised the parties in my initial order, the Act authorizes me to sanction a party that fails to comply with my orders.  Pre-hearing Order at 5 (¶ 11); Act § 1128A(c)(4).  Among those sanctions, I may prohibit a party from relying on certain evidence.  Act § 1128A(c)(4)(B).  In this case, I have reviewed Petitioner’s exhibits as much as practicable, looking for the relevant evidence that might support my finding a material fact in dispute; however, Petitioner has waived its right to rely on any evidence not cited in accordance with my order.  As the Departmental Appeals Board has ruled, “Merely referring to the record without identifying any specific evidence in that record to support its assertion is not sufficient to raise a factual dispute precluding summary judgment.”  Pearsall Nursing & Rehab. Ctr., DAB No. 2692 at 7 (2016).

Issues

Based on the deficiencies Petitioner does not challenge, I find that, from November 24, 2015, through August 29, 2016, the facility was not in substantial compliance with Medicare program requirements, and I sustain the $250 dollar per-day penalty imposed for those deficiencies (total:  $70,000).

I next consider whether summary judgment is appropriate.

On the merits, the issues remaining are:

• from November 24, 2015, through August 29, 2016, was the facility in substantial compliance with 42 C.F.R. § 483.25(h);
• if so, from November 24, 2015, through June 15, 2016, did that deficiency pose immediate jeopardy to resident health and safety; and

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• is the penalty imposed for the period of immediate jeopardy – $5,100 per day – 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 Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).  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., No. 15-60763 (5th Cir. 2016); 1866ICPayday.com L.L.C., DAB No. 2289 at 3 (2009), quoting Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. at 587.
 
In examining the evidence for purposes of determining the appropriateness of summary judgment, 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); but see 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, 14-15 (2015); Cf. Guardian Health Care Ctr., 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, No. 17-40897 at 13 (5th Cir. Apr. 12, 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 (5th Cir. 2010).  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, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (5th Cir. 2010) (emphasis added).4

In Fal-Meridian, the Seventh Circuit considered specifically the appropriateness of granting CMS summary judgment in a nursing home case involving section 483.25(h).  The court sustained the ALJ’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 . . . .”  Id. at 451.

Here, CMS has come forward with evidence – primarily the facility’s own documents – establishing facts showing that the facility was not in substantial compliance with section 483.25(h).  For its part, Petitioner offers some unsupported and speculative witness statements, attempting to justify its half-hearted efforts and to explain why it was not required to do more to keep its residents safe.  Such vague statements and unsubstantiated assertions do not satisfy a party’s burden to identify specific evidence demonstrating a material fact in dispute.  Shah v. Azar, No. 17-40897 at 12; Pearsall, DAB No. 2692 at 7 (affirming summary judgment where Petitioner “refers broadly to ‘the evidence presented in [its] response’” but “identifies no specific evidence relevant to the material facts . . . .”); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).  Ultimately, Petitioner presents

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no admissible evidence of specific facts showing that it did everything possible to minimize the risks of an accident.

In granting summary judgment, I do not rely on any testimony from a CMS witness, so an in-person hearing to cross-examine one of those witnesses would serve no purpose.  Because CMS prevails based on the undisputed facts, including factual claims from Petitioner’s witnesses, CMS would have no reason to cross-examine them.  There are thus no issues here that “would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449.

1. CMS is entitled to summary judgment because CMS has come forward with undisputed evidence that the facility did not follow its own policies and procedures nor an aggressive resident’s care plan to prevent that resident from attacking vulnerable residents, and Petitioner has presented no admissible evidence showing that the facility did everything possible to minimize the risk he posed to himself and others.  These failures put the facility out of substantial compliance with section 483.25(h).5

Program requirement:  42 C.F.R. § 483.25(h) (Tag F323).  Under the statute and the “quality of care” regulation, each resident must receive, and the facility must provide, the necessary care and services to allow a 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); 42 C.F.R. § 483.25.  To achieve this, the regulation mandates, among other requirements, that the facility “ensure” that each resident’s environment remains as free of accident hazards as possible and that each resident receives adequate supervision and assistive devices to prevent accidents.  42 C.F.R. § 483.25(h).  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 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 designed to 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 an “adequate” level of supervision under all the circumstances.  Briarwood at 5; Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff’d, Windsor Health Care Ctr. v. Leavitt, No. 04-3018 (6th Cir. 2005).

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The Board long ago resolved that “accidents” are events that can cause injury to residents and can be prevented by supervision.  Accidents thus include assaults by demented residents.  The regulation’s emphasis is on ensuring that supervision is adequate to meet the specified goal – preventing accidents and keeping the residents safe.  Woodstock Care Ctr., DAB No. 1726 at 21, 36 (2000).

Facility policy:  managing resident behaviors.  The facility had in place a “Mood/Behavior Management” policy; its purposes were to assess resident behavior patterns that interfere with a resident’s functional capacity and to ensure that negative behaviors were reduced or eliminated in order to “maximize the resident’s dignity, independence, and self-determination.”  CMS Ex. 3 at 1; see CMS Ex. 4 at 11 (Rovner Decl. ¶ 45).  The policy charges social services staff with:

• Assessing – through observation, interview, and record review (including “Care Tracker Data” and other behavior monitoring tools and inquiry) – the resident’s behaviors that are “potentially harmful to self or others.”
  
  As part of the assessment, social services personnel must interview:  the resident to determine his perception of the situation, events, and individuals involved; staff who routinely work with the resident to determine patterns of behavior; staff who observe or have witnessed the resident’s behaviors; and family members.
  
  The policy directs “social services” to consider possible causes for the behavior, such as environment (e.g., noise, lighting), staff/resident interactions (i.e., how best to communicate with the resident), medical or physical factors (e.g., illness, medications), relationship difficulties (e.g., presence of other persons, delusions), and emotional factors (e.g., mood).
  
  The social services coordinator must ensure that the Behavior Committee uses the facility’s existing systems to monitor the resident “to determine the symptoms, causes, patterns, and severity of a resident’s behaviors.”  The social services staff should be trained to use the monitoring system and should regularly review the system for proper use.
• Care planning.  As members of the interdisciplinary team, social services staff must formulate “a specific, individualized behavior management plan to reduce or eliminate the causes of the behavior(s).”  The plan must:  1) describe specifically “the behavior and interdisciplinary behavioral interventions” that target the root cause of the behavior; 2) include documentation that is “readily accessible to direct care staff”; 3) include a planned behavioral intervention that is “communicated to staff to ensure their understanding of how to carry out appropriate individualized interventions”; and 4) include a review of psychotropic medications. 

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• Documenting.  The facility must have in place a system to evaluate and document staff’s implementation of the behavior management plan.  At a minimum, the system must document:  the behavior problem, the specific interventions taken to eliminate or reduce the behavior, and the resident’s response to the interventions.
• Evaluating.  The social services staff and the interdisciplinary team must evaluate the effectiveness of the plan “at least monthly.”  If it has not reduced or eliminated the behavior, the facility must re-evaluate the causes of the behavior and revise or update the interventions.

CMS Ex. 3 at 1-3; see CMS Ex. 4 at 12 (Rovner Decl. ¶ 45) and CMS Ex. 5 at 4-6 (Campbell Decl. ¶¶ 14, 15).

Facility policy:  medications to control behavior.  The facility had in place a policy requiring staff to develop behavior plans and medication regimens “to optimize” the residents’ functioning abilities while monitoring for adverse side effects and improved behaviors.  CMS Ex. 3 at 5.

The policy requires that, prior to admission, the facility consider the history of the resident’s behaviors that affect his functioning and any previous or current use of psychotropic medications.  CMS Ex. 3 at 5.

For residents admitted with a prescription for antipsychotic medication, the policy requires, within seven days of admission, an interdisciplinary assessment (involving the prescriber and the behavior management team) of the antipsychotic drug order.  CMS Ex. 3 at 5; CMS Ex. 4 at 12 (Rovner Decl. ¶ 46).  The dosage should gradually be reduced or discontinued unless the medical record documents that doing so would be clinically contraindicated.  Licensed staff must review hospitalizations or admission records; complete the “Clinical Health Status” within 24 hours of admission; and complete the resident’s care plan.  CMS Ex. 3 at 5.

The policy also directs staff to prepare an “antecedent behavior monitor log” for current residents who exhibit new behaviors that negatively affect functioning or quality of life and for new residents who exhibit such behaviors.  A behavior management committee reviews the log to “identify patterns and causative or triggering events for the behavior(s) and [the] effectiveness of interventions.”  The committee looks for a potentially “reversible cause (possible underlying medical conditions/symptoms and medications that may be causing the behavior, i.e., [urinary tract infection], rash/allergic reaction, pain).”  Staff also use the log to determine if the resident is a danger to himself or others.  If so, the appropriate individuals must develop a care plan “to ensure safety and determine if the [facility] can meet the resident’s . . . needs on an ongoing basis.”  CMS Ex. 3 at 5; see CMS Ex. 4 at 13 (Rovner Decl. ¶ 46).

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Facility policy:  addressing physical aggression toward others.  A separate policy addresses physical aggression toward others.  The policy describes aggression as “severe behavioral symptom because of the potential harm to self or others.”  It can be physical or verbal.  Under the policy, once an aggressive act occurs, staff must assess the situation to see if changes “in the environment or situation can prevent future occurrences.”  As a long-term action, the policy instructs staff to assess the situation to see if alterations in the environment or situation can prevent future occurrences.  CMS Ex. 3 at 12-13; see CMS Ex. 4 at 13 (Rovner Decl. ¶ 47) and CMS Ex. 5 at 4 (Campbell Decl. ¶ 13).

Resident 17 (R17).  R17 was admitted to the facility on October 14, 2015, and, at the time of the survey, he was 79 years old.  He suffered from dementia with behavioral disturbances, hypertension, atrial fibrillation, congestive heart failure, and other disorders.  CMS Ex. 9 at 1, 10; CMS Ex. 14 at 4, 18.  Assessments of his ability to walk are inconsistent.  According to the Virginia Uniform Assessment Instrument, he needed no help in walking and did not use assistive devices.  CMS Ex. 9 at 7.  His Minimum Data Set, on the other hand, indicates that he was capable but not steady, using both a walker and a wheelchair.  CMS Ex. 14 at 16.  Nursing notes, however, document that R17 was “able to ambulate on his own[] without problems.”  CMS Ex. 11 at 41; see CMS Ex. 11 at 40.  And, according to Petitioner, R17 was able to walk without a cane, which they took away after he repeatedly brandished it as a weapon.  P. Br. at 9; P. Ex. 5 at 2 (Chewning Decl.); but see CMS Ex. 11 at 9, 16, 22, 23, 27 (documenting a series of falls and unexplained injuries occurring after facility staff purportedly took away R17’s cane).6

Among other medications, R17’s physician ordered the antipsychotic drug, Quetiapine Furmarate (Seroquel), and the antidepressant drug, Trazodone.  CMS Ex. 22 at 3; see CMS Ex. 14 at 28.

R17 scored 5 on his BIMS (Brief Interview for Mental Status) exam, indicating severe impairment.  CMS Ex. 14 at 7.  His initial assessments described him as “disruptive to others.”  CMS Ex. 9 at 12.  His behaviors were “abusive/aggressive/disruptive” and

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occurred weekly or more often.  He also wandered into rooms, picking up items.  CMS Ex. 9 at 13.

Without citing to any factual evidence, Petitioner asserts that, upon admission, R17’s aggressive behavior toward others “was not a concern.”7  P. Br. at 3.  Contemporaneous documentation, particularly R17’s assessments, suggest that aggressive behavior should have been a concern.  CMS Ex. 9 at 12, 13.  Nevertheless, the facility’s then social worker (now director of social services), Sandra Coney – who was “not directly involved in the resident’s [day-to-day] care” – asserts that CMS misreads R17’s assessment.  She then offers her own reading of that document.  Her interpretation of R17’s assessment is a conclusion, not a “specific fact” that I’m bound to accept for purposes of summary judgment.  See W. Tex. LTC Partners, Inc., DAB No. 2652 at 6-7.

Social Worker Coney, referring to just one page of the assessment, declares that R17 wandered into rooms and picked up items, but no one suggested that he would be aggressive to others.  P. Ex. 1 at 4, 5 (Coney Decl.).  She does not mention Registered Nurse (RN) Amanda Carl’s report, on the preceding page of the assessment, that:  1) R17 was a fall risk; 2) he was disruptive to others; and 3) his dementia had worsened in the previous three weeks.  Any one of these factors should have alerted staff that R17 required increased supervision.  CMS Ex. 9 at 12.  Nor does Petitioner explain other evidence in the record that contradicts Social Worker Coney’s conclusion.  In the incident report following R17’s first reported attack on another resident (discussed below), the facility investigators wrote that R17 had a care plan in place “as he does get agitated and aggressive at times by what he perceives as intrusive behavior into his space.”  CMS Ex. 12 at 3 (emphasis added).

Moreover, where the language of an assessment is ambiguous, it is incumbent on the assessment staff to clarify so that they can plan accordingly.  See CMS Ex. 3 at 1-2; P. Ex. 1 at 4 (Coney Decl.) (“Had . . . any other information . . . indicated any history of aggressive behavior toward other residents, I certainly would have followed up.”).

Facility residents should not have their lives disrupted by a demented resident, even if that disruption does not include physical attacks.  The facility policies recognize this.  They require staff (particularly the social services department) to assess, care plan, document, and evaluate behaviors that “interfere with [a] resident’s functional capacity.”

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Staff must ensure that negative behaviors, which would include disrupting others’ lives, are reduced or eliminated.  CMS Ex. 3 at 1-3, 5.

Unit Manager, Kathleen Sadler, R.N., concedes that R17’s care plan “described possible agitation and aggressive behavior,” but suggests that such characterizations were not accurate.  This is curious because she also concedes that “he could become agitated”; she learned that he had an altercation with his roommate; and recalled “one incident when he became angry and chased a nursing assistant out of his room . . . .”  P. Ex. 4 at 2 (Sadler Decl.).

Petitioner asserts that R17’s diagnosis of “dementia with behavioral disturbances” was first added on May 18, 2016.  P. Br. at 6 n.2; P. Ex. 1 at 4 (Coney Decl.).  In support, Petitioner relies on the slimmest of evidence.  A medical diagnosis form, dated August 16, 2016 (two months after the survey), lists R17’s primary diagnosis as “dementia in other diseases classified elsewhere with behavioral disturbance,” and indicates an onset date of May 18, 2016.  CMS Ex. 20.  This single entry does not establish that, prior to May 18, 2016, facility staff did not know that R17 had behavior problems.  Indeed, from the date of his admission, his diagnoses included dementia with behavioral disturbances.  His admission record lists “dementia in other diseases classified elsewhere with behavioral disturbance.”  CMS Ex. 9 at 1 (emphasis added).  His medication order for the antipsychotic medication, Quetiapine Furmarate indicates that it is “related to DEMENTIA . . . WITH BEHAVIORAL DISTURBANCE.”  CMS Ex. 22 at 3 (emphasis in original).  The order date is October 14, 2015, the date R17 was admitted to the facility; and the start date is October 15, 2015.  See CMS Ex. 24 at 3, 4, 12, 21, 28, 35, 41, 49, 56, 64 (medication administration records from October 2015, through June 2016, indicating quetiapine furmarate is prescribed to treat “dementia with behavioral disturbance”).

Ultimately, the question is not material.  Even accepting Petitioner’s (and Social Worker Coney’s) virtually unsubstantiated claim that, at the time of his admission, the facility did not know that R17 had a history of aggressive behavior nor that his diagnoses included “behavioral disturbance,” the undisputed evidence shows that, within six weeks of R17’s admission, staff well understood, or should have understood, the potential threat R17 posed to himself, staff, and other residents.

The incidents.  R17’s first weeks at the facility seem to have been fairly uneventful, until November 6, when he became “combative” and refused to have blood drawn.  CMS Ex. 11 at 36.  Thereafter, his behaviors escalated, initially provoked by his new roommate, R21.  R21 was a 76-year-old man, with significant behavioral problems of his own.  He scored at 3 on his BIMs test.  CMS Ex. 25 at 34, 71.  Among R21’s medications were Aricept (Donepezil) to treat his delusional disorders and Divalproex Sodium (Depakote) for his mood disorder.  CMS Ex. 25 at 20.  He became agitated and aggressive.  He wandered into the rooms of other residents and had been struck by one

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resident.  CMS Ex. 25 at 17, 109, 117.  For reasons it has not explained, the facility decided that he would be an appropriate roommate for R17.

November 22, 2015.8  A nurse’s note describes R17 as “agitated with combative behavior towards his room[ ]mate.”  CMS Ex. 11 at 33.  He stood “guarding” the door to his room, waving his cane in the direction of R21, screaming for him to stay out of his room and declaring “I hit him [three] times with my cane” and am tired of hearing him talk.  Staff separated the residents, notified management, R17’s physician, and R17’s son.  CMS Ex. 11 at 34; P. Ex. 5 at 2 (Chewning Decl.) (“[H]e hit his roommate with a cane on the evening of November 22, 2015.”).

Social Worker Coney asked R17 about his behavior, and he responded “I hit him with my stick because he was attacking me.  He was yelling at me and screaming at me.  I took this thing (pointing to his cane) and knocked him down.”  CMS Ex. 11 at 33; see CMS Ex. 25 at 15 (reporting R21’s “physical altercation” with his roommate.).  Staff moved R21 to a different room (where he had an altercation with his new roommate).  CMS Ex. 25 at 14, 15.9

The facility’s report of the incident confirms that R17 struck R21 with his cane three times and threatened to hit him some more if he returned to the room.  CMS Ex. 12 at 1. The report concludes that an intervention was needed and that R17 would be seen by a psychiatrist.  CMS Ex. 12 at 3.  The parties dispute whether a physician then ordered that psych evaluation.  For purposes of summary judgment, I’ll accept Petitioner’s claim that staff did not obtain such an order, but that finding doesn’t help Petitioner.

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The facility amended R17’s care plan, identifying “behaviors [that] include hitting people, refusing care[,] and verbal aggression towards people entering [his] room.”  CMS Ex. 10 at 17-19.  Staff set a general goal that he would “calm down with staff intervention” and, at that time, added just one specific intervention:  an entry dated November 23 indicates that R17 should be referred to his “psychologist/psychiatrist” as needed.  CMS Ex. 10 at 18.  That staff had determined the referral was needed (CMS Ex. 12 at 3) but failed to follow-up means that the facility was not providing R17 with the services that his interdisciplinary team determined were necessary to ensure that he (and the facility’s other vulnerable residents) could remain safe.  This puts the facility out of substantial compliance with section 483.25(h).

The facility did not report the incident to the state agency, which violates 42 C.F.R. § 483.13(c).  CMS Ex. 12 at 3; see CMS Ex. 36 at 2.  CMS cited that deficiency, and Petitioner has not challenged the citation.

Without citing to the record, Petitioner claims that, for “several weeks” following R17’s November 22 attack on his roommate, nurses “closely monitored” his behavior.  P. Br. at 11.  No evidence supports this claim.  Nursing notes do not indicate increased monitoring.  CMS Ex. 11 at 31-33.  Amendments to R17’s care plan following the incident do not instruct staff to monitor the resident closely.  CMS Ex. 10 at 17.  If staff were required to do so, the facility was not following its policy requiring the social services staff, as members of the interdisciplinary team, to formulate a specific, individualized behavior management plan and to communicate to staff the “planned behavioral intervention” “to ensure their understanding of how to carry out appropriate individualized interventions.”  CMS Ex. 3 at 3.  Petitioner has not come forward with any evidence that staff implemented a “system” to document such enhanced monitoring and the resident’s response to it, as required by the facility’s policies.  CMS Ex. 3 at 3.

Nor do Petitioner’s witnesses suggest that staff closely monitored R17.  To the contrary, they claim that the November 22 incident did not warrant additional interventions.  According to Social Worker Coney, R17’s care plan already included appropriate interventions.  P. Ex. 1 at 8 (Coney Decl.) (“In short, the [interdisciplinary team] considered this incident to be a manifestation of the [r]esident’s underlying dementia and confusion, not evidence of a new issue . . . .”).  Unit Manager Eatmon testified that she attended the interdisciplinary team meeting, where they discussed a possible room change so that R17 “could be monitored more closely,” but decided that it would not be necessary.  P. Ex. 3 at 3, 4 (Eatmon Decl.) (“[N]o additional interventions seemed to be necessary.”).

December 6, 2015.  When nurse aides attempted to change R17’s clothes, he became “very combative.”  He threatened to hit them with his cane, kicked, and yelled at them.  When Licensed Practical Nurse (LPN) Aletta Phillips spoke to him, he told her, “Yes, I

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kicked her and I don’t care if I kill them all.”  LPN Phillips told him that such behavior was not allowed, but he said that he didn’t care.  She called R17’s son to report the incident.  CMS Ex. 11 at 33.10

December 29, 2015.  According to a nurse’s note, R17 used his fist to hit another resident (R38) on the chest and right hand.  Staff responded by reminding and encouraging R17 to stay away from R38, which, by the facility’s own accounting, was not likely to be an effective intervention, given R17’s “limited cognitive capacity and poor memory.”  CMS Ex. 11 at 31; P. Ex. 1 at 7 (Coney Decl.).  He could not even remember the incident or what triggered it, much less “avoid stimuli that can trigger unwanted behaviors.”  P. Ex. 1 at 7-9 (Coney Decl.).11  See Fal-Meridian, 604 F.3d at 5 (holding that “verbal cues” and “attempts to redirect” addressed to a schizophrenic resident were ineffective and known by staff to be so, which meant that the facility was not doing everything possible to avoid accidents.).

Staff notified R17’s physician and his responsible party.  The following day, Dr. Kalandi was at the facility.  He ordered a urine culture because of R17’s aggressive behavior the day before.  Mary McCormick, the facility’s then social services director, reported that R17 did not remember hitting anyone.  CMS Ex. 11 at 31.  The investigative report quotes the resident as saying, “[T]his has been going on since last week[,] and I got tired of it[,] so I punched her.”  CMS Ex. 12 at 5.  The facility planned no particular response, except to “continue to monitor location of resident and intervene when resident is noted becoming agitated and redirecting him accordingly,” again, an intervention they knew would ultimately be ineffective.  CMS Ex. 12 at 7 (emphasis added).  The interdisciplinary team decided against any room change, according to the report.  Id.

The facility did not report the incident to the state agency.  CMS Ex. 12 at 7.

January 4, 2016.  R17 refused to have blood drawn and “was agitated towards lab[’]s staff.”  Significantly, the nurses did not know that his lab work had been discontinued because of his aggressive behavior, even though the facility’s policies required that such

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information be “communicated to staff to ensure their understanding of how to carry out appropriate individualized interventions.”  CMS Ex. 11 at 29; see CMS Ex. 3 at 3.

According to Social Worker Coney, R17’s interdisciplinary team met on January 5, 2016, to review his care plan and “the recent incident” (presumably the December 29 incident).  I see no evidence of the team meeting, although, according to Social Worker Coney, the team agreed that R17’s “memory was so poor that instructions regarding behavior were not effective.”  The team “reinforced the need for staff to monitor [R17] to avoid circumstances that upset him.”  They also decided to move him to a private room closer to the nursing station.  P. Ex. 1 at 9 (Coney Decl.); CMS Ex. 11 at 29.

Petitioner asserts that, following the January 4 meeting, R17 was not allowed to roam, unsupervised, through the facility.  P. Br. at 12-13.  Again, Petitioner does not cite any specific evidence but alludes generally to its witnesses’ testimony.  In fact, the claim is belied by the facility’s documents and Petitioner’s witness testimony:

• A January 3, 2016 nurse’s note, entered at 11:31 p.m., indicates that the resident has “been wandering throughout this shift.”  The note does not mention, and no other evidence suggests that any system was in place to assure supervision of the wandering resident.  CMS Ex. 11 at 29-30.
• A January 11, 2016 nurse’s note indicates that a wanderguard was placed on R17’s right ankle “for wandering.”  (He subsequently removed it.)  CMS Ex 11 at 28-29; see CMS Ex. 11 at 27 (another wanderguard put in place “for wandering.”).
• A February 25 assessment indicates that he “wanders in [the] hall.”  CMS Ex. 11 at 24-25.  Again, no evidence establishes that any system was in place to assure that he was supervised. 
• By March 6, 2016, R17 had two wanderguards in place “for wandering.”  CMS Ex. 11 at 22. 
• On March 7 at 3:01 a.m., R17 was “up at this time[,] wandering around unit.”  CMS Ex. 11 at 23.
• An April 23 note, entered at 10:23 p.m., documents “increased wandering.”  CMS Ex. 11 at 11.
• At 7:21 a.m. the following morning, staff reported that R17 “mostly wandered” on all four units.  CMS Ex. 11 at 11.

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• Social Worker Coney described R17 as continuing “to walk around the facility[,] looking for snacks and coffee.”  She does not explain how he was supervised during these walks.  P. Ex. 1 at 9 (Coney Decl.).
• Although she claims that R17 did not wander “aimlessly,” Unit Manager Eatmon admits that “he did ambulate in the hallways[,] looking for coffee.”  P. Ex. 3 at 2 (Eatmon Decl.).  She does not explain how he was supervised.
• Unit Manager Sandler confirms that R17 “did walk in the hallways looking for the dining carts. . . .”  Again, she does not explain how he was supervised.  P. Ex. 4 at 2 (Sandler Decl.).

Belatedly, in January 2016, the facility introduced “behavior monthly flow sheets” to track R17’s “striking out/hitting” and his “wandering.”  CMS Ex. 13 at 1-2.  But they did not consistently track the behaviors.  For most days (21), staff did not track at all.  And they did not ever track his behaviors for an entire day.  CMS Ex. 13 at 1.  In February, they tracked “combative behavior” and “wandering.”  Staff did not track the behavior at all for five days in February, and, again, on the days they did some tracking, they did not do so consistently.  CMS Ex. 13 at 5-6.  The facility produced no tracking sheets for March or April.

In any event, for the next few months, staff did not report incidents of aggression.  Petitioner cites this period as justification for staff’s over-all failure to supervise the resident closely.  However, during this time, R17 experienced an alarming number of falls and unexplained injuries, which also shows that the facility did not provide him the level of supervision and assistive devices he needed to stay safe.  Specifically:

January 19.  Staff observed R17 sitting on his bed with a skin tear to the right elbow.  He had multiple purpura areas (skin hemorrhages) on his arms.  CMS Ex. 11 at 27; CMS Ex. 12 at 9-11.  Staff did not report the unexplained injuries to the state agency.  CMS Ex. 12 at 11. 

January 20.  Staff found R17 lying on the floor, bleeding from his right elbow.  They assessed his condition and put him into bed.  They notified his physician and his son.  CMS Ex. 11 at 27.  Otherwise, they did not report or investigate.

February 25.  According to an investigative report, someone observed R17 trying to sit on a bed.  He missed and fell on the floor.  Staff reported that he was very tired, having wandered all night, and attributed the fall to lack of sleep for two days and an “error in judgment as to distance.”  They noted no injuries and put him to bed.  They did not report the incident.  CMS Ex. 12 at 13-15.  According to a March 3 post-fall analysis, his care plan was revised.  CMS Ex. 12 at 19.  His care plan change instructs staff to assist him to the rest room at least every two hours at night.  CMS Ex. 10 at 5.

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March 7.  Staff noted that R7’s right hand was swollen, and he had a fluid-filled area on his right elbow.  The area was swollen and warm to the touch.  Staff called his physician and left a message.  They also called his son.  CMS Ex. 11 at 23.  Later that morning they found R17 on the floor; his belt was lying in front of him, and his slipper was off.  He did not remember how he fell.  The right elbow wound from his previous fall had opened.  Staff again notified his physician and his responsible party.  CMS Ex. 11 at 23; CMS Ex. 12 at 24-26.  The post-fall analysis recommended a change in footwear (CMS Ex. 12 at 25-26), although this recommendation was not added to his care plan until May 20, following a second fall that occurred while he was wearing slippers.  CMS Ex. 10 at 5.

March 9.  Staff observed R17 lose his balance and fall to the floor, landing on his buttocks and hitting his head on the floor.  He suffered a laceration to the right hand and was “more confused” than normal.  Staff attempted to call his physician without success and left a message for his son.  CMS Ex. 11 at 22.  They sent him to the hospital, and he returned later that day.  CMS Ex. 11 at 21.  His elbow became infected and he was treated with antibiotics.  CMS Ex. 11 at 21-22.

His son subsequently asked that R17 be evaluated because of his altered mental status and multiple falls.  CMS Ex. 11 at 21.  I see no evidence that the facility followed-up on his request.

April 10.  In the early hours of the morning, staff heard a bang and found R17 lying on the floor “with blood oozing from the forehead.”  CMS Ex. 11 at 16; CMS Ex. 12 at 27.  He had lacerated his right upper eye lid, which caused him pain, for which he was medicated.  He also had a skin tear on his finger.  Staff called his physician, who directed them to send him to the emergency room, where he received stitches.  CMS Ex. 11 at 16‑17.

Thus, even though R17 may not have been attacking others during much of January, February, and March, staff should have been providing him with comparable levels of supervision in order to keep him safe.  Moreover, less than two weeks later, staff began to report incidents of aggression, along with his falls and injuries.

April 22.  R17 was sitting in front of the nurses’ station.  He got up and hit a resident who was walking in the hall.  Staff took him back to his room.  CMS Ex. 11 at 12.  Social Worker Coney concedes that staff did not change R17’s care plan, opting instead to “reinforce the existing interventions,” even though those interventions had not previously kept him (or others) safe.  P. Ex. 1 at 9 (Coney Decl.).

May 19.  R17 had twice refused a shower.  When, at 12:30 p.m., a nurse aide brought in his lunch tray, he chased her out of his room and fell in the hallway.  He had been trying to hit the nurse aide.  He was apparently upset because he thought that she was coming

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back to take him to his shower.  CMS Ex. 11 at 9; CMS Ex. 12 at 41-42, 48.  Notwithstanding the recommendations made after his March 7 fall, R17 was again wearing slippers.  CMS Ex. 12 at 50.

According to the subsequent investigative report, following this incident, R17 was finally going to have a psych consult.  CMS Ex. 12 at 42-3, 51.  Petitioner concedes that the psych consult “was not completed at that time.”  P. Br. at 15 n.9.

The facility did not report the incident to the state agency.  CMS Ex. 12 at 43, 50.

According to Social Worker Coney, on June 2, the interdisciplinary team “decided that the existing interventions remained appropriate and effective.”  P. Ex. 1 at 9.

June 9.  In a particularly disturbing incident, LPN Sharon Calloway observed R17 hitting “in a continuous motion” R11, an 80-year-old woman suffering from Parkinson’s disease and dementia.  R11 had been sitting upright in her “scoop and walk chair.”  LPN Calloway reported that R17’s “face appeared to be angry.”  When LPN Calloway stepped between the residents, R17 punched the nurse “like a punching bag.”  LPN Calloway notified R17’s son, who expressed concern about the behavior.  The LPN also notified R17’s physician.  CMS Ex. 11 at 8; CMS Ex. 12 at 53-55; CMS Ex. 27, Part 1 at 11, 37.  No one notified the state agency.  CMS Ex. 12 at 55.  When asked about his behavior, R17 said that he hit somebody because “they were tormenting me.”  CMS Ex. 11 at 8.

Social Services Director McCormick discussed an alternative placement with R17’s son, who agreed that his father needed a secure unit.  The son also suggested that mentioning “his name” usually calmed the resident.  CMS Ex. 11 at 7.  I see no evidence that his suggestion was considered by the interdisciplinary team or conveyed to staff.

Staff instituted 15-minute visual checks, according to a nurse’s note.  CMS Ex. 11 at 8; CMS Ex. 12 at 53; CMS Ex. 13 at 11.  The facility documented the monitoring, but not consistently; there are gaps.  Between 11:00 a.m. and noon on June 12, no one documented monitoring R17.  Again, from 1:00 to 3:45 p.m. that day, no evidence shows that he was checked.  CMS Ex. 21 at 5.  On June 14, between 12:30 and 2:45 p.m., no one reported checking on him.  CMS Ex. 21 at 2.

June 13.  R17 was in the hallway “aggressively swinging and kicking at [a] staff member” after she told him not to remove a coffee cup from the tray cart.  He was very hard to redirect but eventually left the unit.  Staff notified his son and his physician, Dr. Cherian Joseph, who was in the facility.  Dr. Joseph ordered R17 transferred to an inpatient geriatric psychiatric unit.  CMS Ex. 11 at 7; CMS Ex. 12 at 57-59.  Based on subsequent notes, it seems that he was not transferred; staff continued the 15-minute checks.  CMS Ex. 11 at 6.

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At 4:21 p.m. on June 16, the survey team advised facility staff that R17’s aggression posed immediate jeopardy to resident health and safety.  At about 5:00 p.m. that day, he was placed on one-on-one supervision.  CMS Ex. 1 at 17; CMS Ex. 11 at 5.

On June 17 (almost seven months after the interdisciplinary team had called for it), psychiatric services finally saw R17.  His Seroquel was increased and the mood stabilizer, Depakote, was added.  CMS Ex. 11 at 5.

June 18.  R17 displayed aggressive behavior, although the nurse’s note offers no explanation or specifics.  CMS Ex. 11 at 4.  This type of vague reporting is not in keeping with the facility policies, as discussed above.  CMS Ex. 3 at 3.

June 20.  The one-on-one supervision continued until June 20.  A nurse’s note reports that, in the early hours of the morning, R17 was “observed chasing [the nurse aide] from 1 to 1 out of room.”  CMS Ex. 11 at 3.  The LPN on duty, Valerie Mcqueen, advised the nurse aide “to walk with resident on inside as per education received previously.”  But LPN Mcqueen reports that, instead, the nurse aide began running, with the resident running behind her, yelling “KOOK.”  According to the note, LPN Mcqueen then approached the resident, “who was noticeably upset,” calmly asked him if they could walk away, and the two started walking around the building.  The resident calmed down, and she returned him to his room.  He was, nevertheless, too agitated for her to take his vital signs.  She notified Dr. Joseph, Unit Manager Sadler, and the facility’s DON.  She also called R17’s son.  A new nurse aide was assigned to conduct the one-on-one supervision.  CMS Ex. 11 at 3; CMS Ex. 12 at 65-68.

According to the subsequent investigative report, R17 had been sleeping, when nurse aides attempted to reposition him.  He woke up angry and chased one of them out of the room.  The other aide followed and he chased her, trying to hit her.  CMS Ex. 12 at 68.

Another note reports that R17 was returning from the bathroom, having trouble fastening his pants.  The nurse aide assigned to supervise him offered to help, and he started to swing his fists at her.  Unit Manager Sadler entered the room, allowing the nurse aide to leave.  Following the nurse’s cues, R17 was able to fasten his pants.  She maintained one-on-one with him.  She reported to his physician, Dr. Joseph.  R17 was finally transferred to the hospital for a psychiatric evaluation and placement elsewhere.  CMS Ex. 11 at 1-2; CMS Ex. 12 at 61-63.

Both LPN Mcqueen and Unit Manager Sadler were apparently able to implement interventions that effectively and humanely contained R17’s behavioral outbursts.  I will accept Unit Manager Sadler’s assertion that she “communicated” to the nurse aides she supervised R17’s “needs and interventions.”  P. Ex. 4 at 4, 7 (Sadler Decl.).  But the undisputed evidence inevitably leads to just one reasonable conclusion:  notwithstanding her efforts, the nurse aides assigned to care for R17 – including the nurse aide assigned to

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provide one-on-one supervision – were unaware of or unable to implement those interventions.  In fact, they acted in ways that exacerbated R17’s negative behaviors.  The facility’s policy required social services to develop a behavior management plan, describing specifically the interventions targeting his behavior; they were required to communicate the interventions to staff to “ensure their understanding” of how to carry them out.  CMS Ex. 3 at 3.  Because it failed to implement this policy, the facility was not in substantial compliance with section 483.25(h).

Thus, the undisputed evidence establishes that:

• At the time of his admission, R17’s diagnosis, medication orders, and assessment described his “behavioral disturbances.”  CMS Ex. 9 at 1; CMS Ex. 20; CMS Ex. 22 at 3; CMS Ex. 24 at 3, 4, 12, 21, 28, 35, 41, 49, 56, 64.  Within three weeks, he had become “combative” with staff.  CMS Ex. 11 at 36.  Within six weeks, he had attacked his roommate.  CMS Ex. 11 at 33, 34; P. Ex. 5 at 2.  His interdisciplinary team determined that he needed a psychiatric evaluation.  CMS Ex. 10 at 18; CMS Ex. 12 at 3.
• Following significant behavioral outbursts on December 6 and 29, 2015, facility staff planned no particular response except to monitor his location and to redirect.  They did not document their monitoring and well-knew that redirecting him was ultimately ineffective.  CMS Ex. 12 at 7.
• Staff attempted to draw R17’s blood, even though his lab work had been discontinued because of his aggressive behavior.  Their efforts caused a behavioral outburst.  CMS Ex. 11 at 29. 
• Although required to track his behavior on monthly flow sheets, staff failed to do so consistently.  CMS Ex. 13.
• Staff did not implement the interdisciplinary team’s recommendation for a change in footwear to prevent falls, until months after the recommendation was made, after R17 suffered another fall.  CMS Ex. 10 at 5; CMS Ex. 12 at 50.
• Notwithstanding additional incidents in which R17 assaulted another resident and a staff member – on April 22 and May 19 – his interdisciplinary team determined that the existing interventions were “appropriate and effective.”  CMS Ex. 11 at 9, 12; CMS Ex. 12 at 41-42, 48; P. Ex. 1 at 9 (Coney Decl.).  And, although the interdisciplinary team again recommended, and R17’s physician ordered, a psychiatric evaluation, R17 did not get a psychiatric evaluation.  CMS Ex. 12 at 42, 50.

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• The nurse aides charged with caring for R17 were unaware or unable to implement the interventions necessary to manage R17’s behavior.  In fact, they exacerbated those behaviors.  CMS Ex. 11 at 1-2; CMS Ex. 12 at 61-63.  The facility was not implementing its policies requiring social services staff to “ensure” staff’s understanding of how to carry out interventions targeting his behavior.  CMS Ex. 3 at 3.

For all of these reasons, I find that the facility did not do everything possible to minimize the risk R17 posed to himself and others, putting it out of substantial compliance with 42 C.F.R. § 483.25(h).

Petitioner nevertheless accuses CMS of “second guessing” the facility nurses’ clinical judgments and points out that facilities have flexibility to choose their own methods to prevent accidents and protect residents.  A facility has that flexibility but the methods it chooses are reflected in its policies, assessments, and care plans.  Green Oaks Health & Rehab. Ctr., DAB No. 1567 at 5 (2014).  Here, staff not only disregarded the methods chosen, they failed to follow critical recommendations from the resident’s interdisciplinary team.  Staff are not free to disregard those instructions, operating on an ad hoc basis, justifying, after-the-fact, their failures to implement the strategies developed.

If facility staff exercise professional judgment in deciding not to follow facility policy with respect to a particular resident, they document their judgment and give a reason why not.  In the absence of contemporaneous documentation, it is certainly reasonable to infer, when staff do not follow the policy, either that they were not aware of it or that they are simply disregarding it.

Oxford Manor, DAB No. 2167 at 5-6 (2008).

2. CMS’s determination that the facility’s substantial noncompliance posed immediate jeopardy to resident health and safety is not clearly erroneous.

Immediate jeopardy.  Immediate jeopardy exists if a facility’s noncompliance has caused or is likely to cause “serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.  CMS’s determination as to the level of a facility’s noncompliance (which would include an immediate jeopardy finding) must be upheld unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The Board has observed repeatedly that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  Barbourville Nursing Home, DAB No. 1931 at 27-28 (2004), citing

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Koester Pavilion, DAB No. 1750 (2000); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9 (2007).

Once CMS presents evidence supporting a finding of substantial noncompliance, it need not offer evidence to support its immediate jeopardy determination.  The burden is on the facility to show that CMS’s determination is clearly erroneous.  Grace Healthcare of Benton, DAB No. 2189 at 13 (2008), citing Liberty Commons Nursing & Rehab Ctr. – Johnston, DAB No. 2031 at 17-18, aff’d, Liberty Commons Nursing & Rehab Ctr. – Johnston v. Leavitt, 241 F. App’x 76 (4th Cir. 2007)

Petitioner maintains that “the evidence shows” that R17 was simply “not strong enough to hurt anyone” and refers to witness testimony (again without citation) that his hitting was more “in the nature of slapping at, and pushing away, others.”  P. Br. at 4.  Petitioner apparently refers (without citation) to testimony from Unit Manager Sadler, who asserts that she witnessed an “incident” of R17 “hitting a staff member, and he was capable only of short slapping strokes, like children play fight.”  P. Ex. 4 at 5 (Sadler Decl.).  There are several problems with this testimony.  It does not follow, logically, that, because Unit Manager Sadler once witnessed R17 slapping a staff member (repeatedly), he was incapable of other forms of attack.  The facility’s own, undisputed records document his striking others with his cane (CMS Ex. 11 at 33, CMS Ex. 12 at 1); kicking and yelling (CMS Ex. 11 at 33); hitting with his fist (CMS Ex. 11 at 31); “hitting in a continuous motion” (CMS Ex. 11 at 8); punching, “like [with] a punching bag” (CMS Ex. 11 at 8); and “aggressively swinging and kicking” (CMS Ex. 11 at 6).

Moreover, by their very nature, incidents of physical assault are likely to cause serious injury or harm to a vulnerable population.  Indeed, any attack on an elderly and infirm individual – physical or verbal – can cause serious physical or emotional harm.  Such individuals, including R17, are susceptible to falls, broken bones, lacerations, hematomas, head injuries, fear, distress, and other traumas.  Grace Healthcare, DAB No. 2189  at 13.  (“[A]ny abuse of a frail nursing home resident can be lethal.”).12  And the facility’s records document actual harm.  See CMS Ex. 25 at 15. (reporting that R21 was “physically shaken” by his altercation with R17); CMS Ex. 26 at 3 (“bruising noted on resident’s upper right arm[,] which she reports occurred during this physical contact today”).

Petitioner has not met its burden of establishing that CMS’s immediate jeopardy determination is clearly erroneous.

3. The penalties imposed are reasonable.

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Except to argue that it was not out of substantial compliance with section 483.25(h) and that, even if it were, the deficiency did not pose immediate jeopardy to resident health and safety, Petitioner has not challenged the amounts of the CMPs and has therefore waived the issue.  In any event, the CMPs were reasonable.

To determine whether the CMPs are 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 above 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 penalty of $5,100 per day for each day of immediate jeopardy, which is in the lower range for a per-day CMP ($3,050-$10,000).  42 C.F.R. §§ 488.408(e)(1)(iii); 488.438(a)(1)(i).13  For the period of substantial noncompliance that was not immediate jeopardy, CMS imposes a penalty of $250 per day, which is at the low to very low end of the applicable penalty range ($50-$3,000).  42 C.F.R. § 488.408(d)(1)(iii); 488.438(a)(1)(ii).  Considering the relevant factors, these penalties are reasonable.

The facility has a less-than-stellar history, and its deficiencies have included multiple quality-of-care citations.  Since at least 2008, the facility was consistently out of substantial compliance, and, for six of those years, the surveyors found that the deficiencies caused actual harm.  Many of the deficiencies cited during the June 2016 survey had been cited before.  CMS Ex. 39.  Some highlights:

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• In September 2009, the facility was not in substantial compliance with the quality-of-care regulation, 42 C.F.R. § 483.25, and that deficiency caused actual harm.  CMS Ex. 39 at 5.
• In August 2010, the facility was also out of substantial compliance with section 483.25(h).  It had a pattern of noncompliance with respect to resident assessments (42 C.F.R. § 483.20(k)) and its infection control deficiencies (42 C.F.R. § 483.65) were wide-spread.  CMS Ex. 39 at 4.
• In December 2010, the facility was still out of substantial compliance with section 483.25(h), but, this time, the deficiency caused actual harm.  CMS Ex. 39 at 4.
• In July 2011, the facility was again out of substantial compliance with section 483.25(h).  CMS Ex. 39 at 3.
• In July 2012, the facility was out of substantial compliance with two quality-of-care regulations:  § 483.25 and § 483.25(c), which governs prevention of pressure sores.  Its deficiencies under section 483.25(c) caused actual harm.  CMS Ex. 39 at 3.
• In June 2013, the facility’s infection-control deficiencies were wide-spread.  CMS Ex. 39 at 3.
• In August 2013, the facility was again out of substantial compliance with the quality-of-care regulation, 42 C.F.R. § 483.25, and that deficiency caused actual harm.  CMS Ex. 39 at 2.
• In March 2014, the facility was not in substantial compliance with regulations governing resident assessments (42 C.F.R. § 483.20(d), 483.20(k)) and the quality-of-care regulation governing urinary incontinence.  CMS Ex. 39 at 2.
• In June 2014, the facility again had widespread infection-control deficiencies.  CMS Ex. 39 at 3.
• In December 2014, the facility was again out of substantial compliance with section 483.25(h), and that deficiency caused actual harm.  CMS Ex. 39 at 1.
• In June 2015, the facility’s substantial noncompliance with the regulation governing assessments (42 C.F.R. § 483.20(k)) caused actual harm.  CMS Ex. 39 at 1.

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The facility’s history alone justifies imposing CMPs that are substantially greater than the minimum, particularly in light of the facility’s erratic compliance with the quality-of-care regulations.  See H.R. Rep. No. 100-391(I), 100th Cong., 1st Sess. (1987) (expressing the goal of eliminating the “yo-yo” or “roller coaster” phenomenon); Fla. Agency for Health Care Admin. v. Bayou Shores SNF, LLC, 2016 WL 3675462 at 19 (11th Cir. July 11, 2016); Heartland Manor at Carriage Town, DAB No. 1664 (1998).

Petitioner does not claim that its financial condition affects its ability to pay the CMP.

Applying the remaining factors, I consider all of the facility’s substantial noncompliance, which includes the multiple deficiencies that Petitioner did not challenge.  The sheer number of deficiencies, including three (in addition to § 483.25(h)) that caused actual harm, justify increasing the penalty amounts.

With respect to the CMP that was based on the finding of immediate jeopardy, I have discussed in some detail the facility’s failures.  For eight months, staff did not properly supervise a demented and aggressive resident, who attacked multiple other residents and staff.  He seriously injured himself as well.  Yet staff did not follow facility policies for addressing his behavior issues and repeatedly disregarded instructions from his interdisciplinary team.  Nurse aides responsible for his direct care and supervision were not properly trained for that task and actually made the situation worse.  The facility is culpable for all of these very serious failings.

For these reasons, I find that the CMP is reasonable.

Conclusion

From November 24, 2015, through August 29, 2016, the facility was not in substantial compliance with Medicare program requirements and, from November 24, 2015, through June 15, 2016, its deficiencies posed immediate jeopardy to resident health and safety.  Petitioner has not challenged the amount of the penalty imposed.  In any event, those penalties – $5,100 per day for the period of immediate jeopardy and $250 per day for the period of substantial noncompliance that was not immediate jeopardy – are reasonable.

• 1. This is the sole deficiency appealed.
• 2. Since the time of the survey, CMS has amended its regulations governing nursing home participation in the Medicare program. 81 Fed. Reg. 68,688 (Oct. 4, 2016). I apply the regulations that were in effect at the time of the survey.
• 3. To the extent that Petitioner’s brief includes citations to specific page numbers, they are taken from the citations in CMS’s brief. With respect to its own exhibits, Petitioner does not proffer even an exhibit number, much less a specific page.
• 4. 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 judgement 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), the ALJ, 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 289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”).
• 5. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
• 6. For purposes of summary judgment, I accept Petitioner’s assertion that staff took away R17’s cane. However, when and how they did so is not well-documented. Petitioner relies on the written declaration of Unit Manager Denise Eatmon, R.N., who says that, on November 23, 2015, R17’s interdisciplinary team discussed whether they could safely remove the resident’s cane. P. Ex. 3 at 2-3. The investigative report says nothing about removing R17’s cane. CMS Ex. 12 at 3. His care plan does not mention removing his cane. CMS Ex. 10. In fact, I could not find any documentation regarding the team’s discussions, the therapy department’s evaluation, or the actual removal of the cane. As late as December 6, 2015, he still had it. CMS Ex. 11 at 33.
• 7. Petitioner has conceded that the facility did not provide R17 (and two other residents) with appropriate treatment and services to address behavior problems, putting it out of substantial compliance with 42 C.F.R. § 483.25(f)(1). CMS Ex. 1 at 2-15. Because R17 was on antipsychotic drugs, staff’s failing to monitor for targeted behaviors put the facility out of substantial compliance with 42 C.F.R. § 483.25(l). Petitioner does not contest either of these cited deficiencies.
• 8. The facility’s report of its investigation indicates that the incident occurred at 6:00 p.m. on November 22; the nurses’ notes were entered at 12:08 a.m. (R17) and 12:22 a.m. (R21) on November 23. CMS Ex. 11 at 33-34; CMS Ex. 12 at 1; CMS Ex. 25 at 15.
• 9. Although CMS has not focused on the problems with R21, who was apparently not among the residents in the survey sample, it seems that his behavior was as problematic as that of R17. On the night of November 20-21, staff reported that he became aggressive and combative and struck a nurse. He entered the rooms of other residents “with ensuing arguments from each party.” Efforts to redirect were not successful, and his physician ordered Haloperidol (Haldol), an antipsychotic medication, and Benadryl. CMS Ex. 25 at 16. See CMS Ex. 25 at 4 (struck by another resident), 8 (going into rooms of other residents, picking up their belongings, “very combative” toward staff), 9 (in hall yelling and attempting to enter another resident’s room, very agitated, struck staff), 10 (attacked a resident who had been lying in bed), 12 (rummaging through belongings of former roommate and urinating on floor near that roommate’s wardrobe), 13 (attacked nurse who blocked entry into the room of a female resident). And even though his wandering into the rooms of others caused much distress, the facility did not seem to have in place any effective means of deterring this activity.
• 10. Petitioner trivializes the significance of R17’s attacks on staff. P. Br. at 8. Facilities must take these attacks seriously. Staff who are afraid for their own safety are less likely to provide an aggressive and abusive resident with the level of supervision he requires.
• 11. In the nurses’ notes, Social Worker Coney wrote “Keep resident separate from other resident in common areas.” CMS Ex. 11 at 31. The parties argue about whether she meant that staff should keep R17 away from “residents” generally or just R38. Social Worker Coney’s declaration does not clarify what she meant, and R17’s care plan does not include these instructions. Inasmuch as R17’s aggressive actions were not limited to this one resident, I do not see how Petitioner’s case is furthered by its claim that Social Worker Coney intended to limit staff’s protections to just one resident.
• 12. Although CMS’s witnesses echoed these sentiments, I need not, and do not, rely on their testimony, which simply states the obvious. See CMS Ex. 4 at 26 (Rovner Decl. ¶ 74); CMS Ex. 5 at 22 (Campbell Decl. ¶ 89).
• 13. Effective August 1, 2016, the CMP amounts increased substantially. See 45 C.F.R. § 102.3. CMS based its penalties on the lower amounts that were in effect at the time of the survey.