The Elms of Cranbury, DAB CR5487 (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 $20,425 against Petitioner, the Elms of Cranbury, a skilled nursing facility in the State of New Jersey. 

I. Background

CMS moved for summary judgment.  Petitioner opposed the motion.  I denied CMS’s motion and directed CMS to refile it.  Ruling Denying Motion for Summary Judgment and Directing That CMS Refile Its Motion, September 20, 2019.  CMS refiled its motion and Petitioner again opposed the motion and cross-moved for summary judgment in its favor.

CMS filed a total of 18 proposed exhibits, identified as CMS Ex. 1-CMS Ex. 18.  Petitioner filed 13 proposed exhibits, identified as P. Ex. 1-P. Ex. 13.  I do not receive these exhibits into evidence inasmuch as I grant CMS’s motion for summary judgment.  I cite to some of them in this decision but only to illustrate facts not in material dispute or to explain why some asserted facts are not material.

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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 $20,425 is a reasonable remedy.

CMS alleges that Petitioner’s noncompliance is so egregious as to constitute immediate jeopardy for Petitioner’s residents.  Below, I explain why it is unnecessary that I address that assertion.

B. Findings of Fact and Conclusions of Law 

CMS premises its allegations of noncompliance and its remedy determination on Petitioner’s alleged failure to comply substantially with a single regulation, 42 C.F.R. § 483.35(d)(1)-(3).  This regulation governs a skilled nursing facility’s employment of nurse aides.1

I take notice that nurse aides are the primary caregivers in a skilled nursing facility.  In most facilities nurse aides greatly outnumber employees of more advanced educational background and training, including registered nurses and licensed practical nurses.  It is the nurse aides who perform most of the chores associated with patient care.  That includes:  assisting residents to get in and out of their beds; assisting residents with mobility such as ambulating or use of wheelchairs; dressing residents; assisting residents with grooming; assisting residents with bathing and use of toilets; providing continence care to incontinent residents; assisting residents who have difficulty eating on their own; changing residents’ bed linens; and a host of other duties relating to residents’ care.

Nurse aides are critical elements in the continuum of care that skilled nursing facilities provide to their residents.  Not only do they perform all of the duties that I have described and more, they also serve often as the first point of communication between a facility’s residents and professional caregivers such as nurses.  It is nurse aides who frequently are first to observe a change in a resident’s condition.  It is often nurse aides who alert a facility’s nursing staff about new or exacerbated problems experienced by a resident.

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In order to provide all of this care, nurse aides must be trained and must attain a level of competency commensurate with their duties.  A facility must not employ nurse aides who lack the requisite training and competency.  42 C.F.R. § 483.35(c).  Generally, a skilled nursing facility may not employ on a full-time basis for more than four months any nurse aide who has not demonstrated sufficient competency to perform his or her duties and who has not completed a State-certified nurse aide training and competency evaluation program (NATCEP).  42 C.F.R. § 483.35(d)(1).2

The regulations also contain provisions governing a facility’s employment of nurse aides who have less than four months’ experience.  The subsection of this regulation that directly applies in that circumstance and to this case is 42 C.F.R § 483.35(d)(3)(i)-(ii).  In its entirety, this subsection states:

(3) Minimum competency. A facility must not use any individual who has worked less than 4 months as a nurse aide in that facility unless the individual – 

(i) Is a full-time employee in a State-approved training and competency evaluation program;

(ii) Has demonstrated competence through satisfactory participation in a State-approved nurse aide training and competency evaluation program or competency evaluation program . . . .

The regulation plainly requires that nurse aides in their first four months of employment (“nurse aides in training”) be enrolled during that period in a State-approved NATCEP and that they demonstrate competency through satisfactory participation in that training course.  I find no ambiguity in this regulation.  A skilled nursing facility must not assign duties to a nurse aide in training that exceed the level of competency and experience that he or she has acquired through his or her enrollment in a State-approved NATCEP.3

Many skilled nursing facilities operate a State-approved NATCEP in house.  In that circumstance, nurse aides in training, during their first four months of employment,

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receive the required education and competency training directly from the skilled nursing facility’s professional staff.  Where a skilled nursing facility operates a State-approved NATCEP, its professional staff can directly monitor the nurse aides in training and assure that they are not assigned duties that exceed either their level of training or the competence that they have acquired.

Other skilled nursing facilities, including Petitioner, do not have an in-house NATCEP.  In that circumstance nurse aides in training must attend education programs that are operated by entities that are external to the skilled nursing facilities.

The fact that a nurse aide in training is enrolled in an external NATCEP does not excuse his or her employer from the requirement that the nurse aide in training be assigned only those tasks that the external NATCEP trains him or her to do.  The skilled nursing facility must monitor carefully its nurse aide trainees’ educational and competency attainments.  Put simply, a skilled nursing facility may not assume that one of its nurse aide trainees has attained a particular level of education and competency training when assigning duties to that employee. 

How does a skilled nursing facility that does not operate its own NATCEP assure that its nurse aide trainees are not being assigned duties that exceed their training levels? The regulations don’t prescribe a methodology. Clearly, however, there are things that a facility can do.  For example, it can require a nurse aide trainee to produce written evidence – such as examination scores – of his or her performance in an external NATCEP.  Or, it can contact the administrator of the NATCEP and request progress reports on its employee.  But, whatever it does, it must assure that it does not assign duties to a nurse aide trainee that exceed the scope of the trainee’s education in an external NATCEP.

CMS’s central allegation is that Petitioner violated regulatory requirements in that it employed nurse aide trainees, enrolled in external NATCEPs, but failed to have a methodology to assure that it was only assigning duties to the nurse aide trainees that were commensurate with the level of education that they had received in the NATCEPs.  The undisputed material facts establish this allegation to be true.  Indeed, Petitioner had no policy in place to assure that nurse aide trainees were assigned duties that were commensurate only with the level of training that they had received from an external NATCEP.  CMS Ex. 8; CMS Ex. 16 at ¶¶ 31, 38.

CMS’s case focuses on Petitioner’s employment of three nurse aide trainees, identified as nurse aide trainee #s 1, 2, and 3.  Each of these individuals was enrolled in an external NATCEP during the first four months of his or her employment.  The undisputed facts, conceded by Petitioner, prove that Petitioner assigned nurse aide duties to each employee without verifying the level of education that the nurse aide trainee had obtained in the external NATCEP at the time that its staff assigned those duties.  Petitioner’s Brief in

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Support of Cross-Motion for Summary Judgment and Pre-Hearing Brief, November 7, 2019 (Petitioner’s brief) at 7. 

Petitioner hired nurse aide trainee # 1 on November 19, 2018.  CMS Ex. 3 at 1.  In interviewing this individual for employment, Petitioner’s staff determined that the nurse aide trainee was enrolled in an external NATCEP beginning on November 2, 2018, with an estimated completion date of January 21, 2019.  Id. at 18.  There is no evidence that Petitioner’s staff communicated with the external NATCEP to determine the employee’s progress and level of attainment on any date subsequent to the nurse aide trainee’s hiring date.  Notwithstanding, Petitioner assigned nurse aide trainee # 1 to provide independent care to residents on 18 separate shifts subsequent to the hiring date.  Id. at 58-59, 69-82.

Petitioner hired nurse aide trainee # 2 on November 30, 2018.  CMS Ex. 4 at 1.  Petitioner obtained an undated letter from a NATCEP stating that this nurse aide trainee was enrolled beginning October 22, 2018, with an estimated completion date of January 21, 2019.  As is the case with nurse aide trainee # 1, there is no evidence that on any date after nurse aide trainee # 2’s hiring, Petitioner communicated with the NATCEP to determine the trainee’s progress and level of attainment.  However, nurse aide trainee # 2 worked 20 shifts providing resident care from December 19, 2018 through January 8, 2019.  CMS Ex. 4 at 64-65, 67.

Petitioner hired nurse aide trainee # 3 on December 3, 2018.  Petitioner’s records describe the nurse aide trainee as being “in CNA school.”  CMS Ex. 5 at 29.  There is no evidence showing that Petitioner’s staff communicated with an external NATCEP at any point in order to assure that the duties that were being assigned to nurse aide trainee # 3 were commensurate with the trainee’s level of education and training.  Notwithstanding, nurse aide trainee # 3 began performing independent resident care assignments on December 22, 2018.  Id. at 10.  Between December 22, 2018 and January 5, 2019, this trainee worked a total of 14 shifts providing care to residents.  Id. at 10-24.

Without ongoing communication with the three nurse aide trainees’ external NATCEPs, Petitioner could not ascertain these individuals’ levels of education.  Indeed, Petitioner had no way of ascertaining whether these individuals had completed the various training modules in the NATCEPs or even whether the nurse aide trainees were faithfully attending their training classes.

Petitioner’s failure to verify the education status of the three nurse aide trainees is a direct consequence of the fact that Petitioner lacked any policies or procedures for doing so. Petitioner concedes that it had no such policies or procedures. Petitioner’s brief at 7.

I do not find to be persuasive Petitioner’s arguments in opposition to CMS’s motion for summary judgment.

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Petitioner argues, first, and principally, that the regulations impose no requirement on it to track the progress of its nurse aide trainees in an external NATCEP, nor do these regulations require it to assure that the trainees are assigned duties that are limited to those commensurate with their education.  According to Petitioner:

Nowhere in . . . [42 C.F.R. § 483.35(d)(3)(i)-(ii)] is there any language suggesting or requiring that a facility monitor the employee’s progress in the approved school.  This language does not exist.

Petitioner’s brief at 6.  Petitioner is correct in asserting that the regulation does not explicitly state that it must monitor its nurse aide trainees’ progress in an external NATCEP.  Nor does the regulation explicitly require a facility to have a methodology for ascertaining the educational status of its nurse aide trainees.  However, that is the obvious intent of the regulation.  It specifically requires that a skilled nursing facility assure that a nurse aide trainee “has demonstrated competence through satisfactory participation in a State-approved nurse aide training and competency evaluation program or competency evaluation program.”  42 C.F.R. § 483.35(d)(3)(ii).  In the case of a nurse aide trainee participating in an in-house NATCEP, the skilled nursing facility may use its professional staff to monitor and evaluate that trainee’s progress.  But, where a nurse aide trainee is being educated in an external NATCEP, the only way in which the facility can assure that the employee participates satisfactorily in that NATCEP is by monitoring the employee’s progress in that NATCEP, either by demanding that the employee produce satisfactory evidence, such as test results, of his or her progress, or by contacting the NATCEP directly. 

Petitioner had no idea whether its nurse aide trainees had satisfactory participation because it had no communication with the external NATCEPs in which these trainees had enrolled.  Petitioner did not even ascertain whether its trainees were attending class.

Petitioner attempts to justify the undisputed fact that it assigned its nurse aide trainees independent duties without ascertaining these employees’ attainments in their respective NATCEPs, by contending that it provided in-house supervision to these employees.  That is not a legitimate defense.

Petitioner argues that it assured satisfactory advancement and training by its nurse aide trainees because it:

Had its own rigorous training and orientation program which was fully independent of the outside NATCEP program. . . [A] facility could not . . . [rely] on NATCEP certification alone as evidence that a new . . . [nurse aide] was competent to be placed on the floor to render resident care.

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Petitioner’s brief at 7.  This argument is incorrect in that it suggests that a skilled nursing facility may employ a training and orientation program for its nurse aide trainees that substitutes for an approved NATCEP.  It may not.  The regulations do not allow any exception to the requirements that nurse aide trainees participate in a State-approved NATCEP and that they demonstrate satisfactory progress in that program.  Demonstrating satisfactory progress in a facility’s unapproved training program fails to satisfy regulatory requirements.

As I have discussed, many skilled nursing facilities train their employees in house through their own State-approved NATCEPs.  Petitioner is not one of them.  It cannot substitute its own training and supervision for an approved NATCEP no matter how “rigorous” it contends its program may be.  If it could, then the regulation’s requirement that nurse aide trainees participate in a State-approved NATCEP and demonstrate their competence in the NATCEP’s curriculum would be meaningless.  Furthermore, and obviously, Petitioner’s asserted in-house monitoring of its nurse aide trainees does not assure or monitor its nurse aide trainees’ progress in the external NATCEPs in which they had enrolled.  Such in-house monitoring is, at best, a case of substituting apples for oranges.

Petitioner argues at considerable length that all of its nurse aide trainees undergo rigorous supervision by Petitioner’s professional nursing staff in order to ensure that they are competent to perform the tasks that the staff assigns to them.  For example, in the case of nurse aide trainee # 1, Petitioner avers that this employee completed six days of orientation through its in-house training and orientation program, a program that consists of a classroom setting followed by the testing of the materials taught.  Petitioner’s brief at 10; see CMS Ex. 3 at 34-57.  Petitioner contends also that its nurse aide trainees must “buddy up” with experienced aides, for a period of days or weeks after the inception of employment, in order to further their education or competence to perform assigned tasks.  Petitioner’s brief at 10; P. Ex. 5 at ¶¶ 4-8.  Petitioner makes similar assertions concerning nurse aide trainees #s 2 and 3.  Petitioner’s brief at 11-12.  Petitioner asserts that, in fact, these nurse aide trainees demonstrated high aptitude for performing the tasks that were assigned to them.  Id.

These facts asserted by Petitioner are not material to my decision because they do not refute unchallenged evidence of Petitioner’s failure to ascertain and verify the level of education that its trainees may have obtained through enrollment in a State-approved NATCEP.  Furthermore, the facts asserted by Petitioner are not material because they do not refute CMS’s assertion that Petitioner assigned the full range of nurse aide duties to its trainees before they had completed their education in a State-approved NATCEP.

Indeed, the thrust of Petitioner’s contentions about the three nurse aide trainees relates directly to its implication that its in-house supervision and training of these employees was equivalent to the education and competency training that these employees would

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receive through attendance in an external State-approved NATCEP.  I have explained why this assertion is irrelevant because it is wrong as a matter of law.  I reiterate that the regulations do not allow skilled nursing facilities to substitute their own training regimes for nurse aides in lieu of successful attendance in, and graduation from, a State-approved NATCEP. 

The undisputed facts establish that Petitioner assigned all three nurse aide trainees independent duties without ascertaining that these duties were commensurate with the trainees’ education and competence levels obtained in a State-approved NATCEP.  No facts offered by Petitioner refute these undisputed facts.

Petitioner argues, for example, that nurse aide trainee # 1 worked in tandem with certified nurse aides on shifts between the date that she was hired and December 11, 2018.  However, it does not deny that this employee worked independent shifts beginning on December 14, 2018.  Similarly, Petitioner asserts that nurse aide trainee # 2 received training from Petitioner prior to December 11, 2018.  That doesn’t gainsay the fact that this nurse aide trainee worked independent shifts beginning on December 19, 2018.  Finally, Petitioner argues that nurse aide trainee # 3 received orientation and training from Petitioner’s staff and worked in Petitioner’s “buddy” system up until December 19, 2018.  That does not refute the fact that this nurse aide trainee worked multiple independent shifts after December 22.

Petitioner’s orientation and “buddy” system were not part of a State-approved NATCEP and, therefore, they cannot substitute for that which a State-approved NATCEP offers.  Assigning the nurse aide trainees any duties without first ascertaining whether they had acquired education and competence from a State-approved NATCEP violated regulatory requirements no matter how intensively Petitioner monitored its nurse aide trainees.

Petitioner asserts that all three nurse aide trainees were “at all times[] supervised” by Petitioner’s nursing staff while providing any “direct care to residents.”  Petitioner’s brief at 21-22 (citing P. Ex. 5 at ¶¶ 4-9).  The exhibit cited by Petitioner provides no facts that would support an assertion that Petitioner complied with regulatory requirements in employing the three nurse aide trainees.  The declaration, by Nicole Pierre, RN, a supervisory nurse, avers that she “observe[s] all nurse aides whether they are certified or in the process of becoming certified.”  P. Ex. 5 at ¶ 6.  Ms. Pierre avers further that her supervision consisted of keeping nurse aides within “visual range.”  Id. at ¶ 8. 

I will accept these assertions as true for purposes of deciding CMS’s motion.  But, no matter how much supervision Ms. Pierre provided these nurse aide trainees as they worked, it did not amount to providing the training offered by a State-approved NATCEP nor does it assure that nurse aide trainees are assigned duties commensurate with the education and competence that they received at an external NATCEP.

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The remedy that CMS opted to impose for Petitioner’s noncompliance is a per-instance civil money penalty of $20,425, slightly below the maximum amount that regulations prescribe for noncompliance occurring in 2018.  42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3 (2018). CMS argues that a per-instance civil money penalty of this amount is justified because CMS determined that Petitioner’s noncompliance is so egregious as to constitute immediate jeopardy for residents of Petitioner’s facility.

It is unnecessary that I address the question of whether Petitioner’s noncompliance comprised immediate jeopardy and I decline to do so.  The presence or absence of immediate jeopardy is not a necessary element of a per-instance penalty amount determination.  42 C.F.R. § 488.438(a)(2).  Rather, the amount of a per-instance civil money penalty may be determined based on factors described 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)) without regard to the presence or absence of immediate jeopardy.4 These factors may include the seriousness of a facility’s noncompliance, its compliance history, its culpability, and its financial condition.

I find that the seriousness of Petitioner’s noncompliance justifies the penalty amount that CMS determined to impose.  The potential for harm to Petitioner’s residents was high given that Petitioner assigned its nurse aide trainees the full responsibility of nurse aide duties without ascertaining whether these employees met State-approved education and competence criteria.

The seriousness of Petitioner’s noncompliance becomes evident when one looks at the duties that Petitioner assigned to its nurse aide trainees.  Petitioner allowed its nurse aide trainees to provide care to Petitioner’s most dependent and helpless residents without first ascertaining whether these trainees had successfully completed State-approved training to provide such care, and without having any methodology in place for finding out whether these employees were properly and lawfully trained. 

The duties that Petitioner expected its nurse aide trainees to perform included attending to residents with special care needs.  CMS Ex. 16 at ¶ 23.  These residents include utterly dependent individuals with grave disabilities, including residents who are being fed by gastric tube.  Id.  Petitioner had other residents suffering from severe disabilities

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including individuals who suffered from dementia and individuals who needed physical assistance for transfers including the necessity to use special devices such as Hoyer lifts to facilitate transfers.  Id. at ¶ 57.  Petitioner assigned its nurse aide trainees to provide care to these residents, again without ascertaining whether they had received State-approved training to provide such care, and without having in place any methodology for finding out whether they had received the requisite training.

The penalty that CMS determined to impose is actually quite modest given the seriousness of Petitioner’s noncompliance.  It constitutes a small fraction of the civil money penalty amounts that CMS could have imposed had it elected to do so.  The noncompliance in this case persisted for weeks as Petitioner directed its nurse aide trainees to perform the full panoply of nurse aide responsibilities without knowing whether they had successfully completed requisite State-approved training.  Even if CMS had determined Petitioner’s noncompliance to be less egregious than immediate jeopardy-level noncompliance it could have imposed a penalty for each day of Petitioner’s noncompliance of more than $6,000.  42 C.F.R. § 488.438(a)(1)(ii); 45 C.F.R. § 102.3 (2018).

• 1.CMS alleged several additional deficiencies. It did not predicate its remedy determination on these alleged additional deficiencies. Consequently, I do not address them in this decision.
• 2.There are exceptions to the general rule that are not relevant here.
• 3.New Jersey’s regulations governing employment of nurse aides mirror the federal requirement. They prohibit the delegation of duties to personnel who have not received “verifiable education and have not demonstrated the adequacy of their knowledge, skill and competency to perform the task being delegated.” N.J. Admin. Code § 13:37-6.2(d) (emphasis added).
• 4.CMS contends that a finding of immediate jeopardy is not appealable where the remedy imposed is a per-instance civil money penalty. Revised Pre-Hearing Brief and Renewed Motion for Summary Judgment of the Centers for Medicare and Medicaid Services, October 16, 2019, at 8. A finding of immediate jeopardy would certainly be relevant, and appealable, if that finding were a necessary predicate for a per-instance civil money penalty amount. Here, it is irrelevant precisely because the per-instance civil money penalty amount does not hinge on the presence or the absence of immediate jeopardy.