Leisure Glen Post Acute Care Center, DAB CR5676 (2020)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a per-instance $10,000 civil money penalty against Petitioner, Leisure Glen Post Acute Care Center, a skilled nursing facility.

I. Background

Recently, this case was transferred to me from the docket of another administrative law judge.  That judge issued an order on February 1, 2019, closing the record of the case, finding that the parties' evidentiary exchanges and briefing were complete.  The administrative law judge observed that neither CMS nor Petitioner filed requests to cross‑examine witnesses (CMS offered the written direct testimony of a witness and Petitioner offered the written direct testimony of two witnesses).1  Consequently, she found no need for an in-person hearing.

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I concur with this ruling.  I decide this case based on the parties' written pre-hearing exchanges and without convening a hearing.

CMS identified its proposed exhibits as CMS Ex. 1-CMS Ex. 9.  Petitioner identified its proposed exhibits as P. Ex. 1-P. Ex. 11.  I receive these exhibits into the record.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether Petitioner failed substantially to comply with a Medicare participation requirement and whether Petitioner's noncompliance supports the imposition of a per-instance civil money penalty of $10,000.

B. Findings of Fact and Conclusions of Law

CMS rests its case on Petitioner's alleged noncompliance with a single Medicare participation requirement, stated at 42 C.F.R. § 483.40(b)(3).2  This subsection mandates that any resident of a skilled nursing facility who displays signs of dementia or who is diagnosed with that condition receives appropriate treatment and services designed to maintain that resident's highest practicable physical, mental, and psychosocial well‑being.  CMS alleges that Petitioner failed to comply in two respects with this regulation's requirement:  first, it failed to follow a physician's order that it schedule a psychiatric consultation for a demented resident (Resident 2) and second, it failed to report the resident's self-destructive behavior to her treating physician and failed to prevent this behavior from causing the resident to harm herself.

The evidence unequivocally establishes Petitioner's noncompliance.

Petitioner admitted Resident 2 to its facility on November 10, 2017.  CMS Ex. 5 at 1.  The resident had diagnoses that included Alzheimer's disease and psychosis.  Id. at 2, 5, 24.  The resident displayed periods of agitation and restlessness.  Id. at 54.  When the resident was admitted, Petitioner's staff noted that Resident 2 screamed and uttered

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disruptive sounds.  She exhibited self-destructive behavior that included hitting or scratching herself.  Id. at 101.

On the day of Resident 2's admission, her physician ordered Petitioner's staff to schedule a psychiatric consultation for the resident.  CMS Ex. 5 at 33.  The resident did not receive this consultation at any time prior to her discharge from the facility on November 28, 2017.  CMS Ex. 1 at 6; CMS Ex. 9 at 4.  The failure to provide the resident with the physician-ordered psychiatric consultation violated the regulation's requirement that the facility provide a demented resident, Resident 2, with appropriate treatment and services.

The evidence also shows that Petitioner violated its own policy governing appropriate treatment of demented residents, a violation that constituted failure to provide necessary services consistent with regulatory requirements.

Petitioner had a "Behavior Assessment and Monitoring" policy that specified the care that its staff was supposed to provide to residents with dementia.  It required the staff to:

identify, document, and inform the physician about an individual's mental status, behavior, and cognition, including:  a.  Onset, duration and frequency of problematic behaviors or changes in behavior, cognition, or mood . . . .

CMS Ex. 6 at 2.  Notwithstanding that policy, Petitioner's staff failed to inform Resident 2's physician of the resident's clearly self-destructive behavior.

On November 19, 2017, staff observed Resident 2 to be very agitated and repeatedly striking a table next to Petitioner's nurse's station with her hand.  CMS Ex. 5 at 182; see CMS Ex. 5 at 172, 174; CMS Ex. 9 at 5.  This was not unique behavior.  A licensed vocational nurse admitted that the resident always sat in a wheelchair by the table and had a daily history of hitting the table with her hand.  CMS Ex. 1 at 7; CMS Ex. 9 at 4-5.  The licensed vocational nurse recalled that on one occasion she had placed a pillow on the table in order to protect the resident from injuring herself.  CMS Ex. 4 at 8; CMS Ex. 9 at 5.  However, neither this licensed vocational nurse nor anyone else on Petitioner's staff reported this behavior to Resident 2's physician.  The licensed vocational nurse admitted that she had not reported the behavior.  CMS Ex. 9 at 5.  Another licensed vocational nurse confirmed that Resident 2 would hit the table.  CMS Ex. 9 at 5.  There exists no evidence showing that other members of Petitioner's staff reported it.

Nor did the staff assess this behavior and devise interventions to protect the resident from injuring herself.  The staff did not document or discuss the risk for harm, did not assess the nature of the risk, and devised no ongoing interventions to protect the resident.  On November 19, 2017, examination of the resident's hand established that she had suffered a displacement fracture to one finger.  CMS Ex. 5 at 180; see CMS Ex. 5 at 172, 174.

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I find a civil money penalty of $10,000 to be reasonable.  The penalty falls within the permissible range of penalties imposed to remedy instances of noncompliance.  42 C.F.R. § 488.438(a)(2).  It is amply justified by evidence relevant to the factors used for deciding penalty amounts.

Factors that may be used to decide the amount of a civil money penalty include the seriousness of a facility's noncompliance and its culpability for that noncompliance.  42 C.F.R. §§ 488.438(f)(1)-(4), 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  Petitioner's noncompliance was a very serious violation of regulatory requirements, causing Resident 2 to sustain actual harm.  I infer that the resident's injury – a fractured finger – was the consequence of Petitioner's failures, in violation of its own policy:  to provide Resident 2 with a physician-ordered psychiatric consultation; to consult with the resident's physician about the resident's self-destructive behavior; to assess the resident's behavior; and to develop interventions to protect the resident.

Furthermore, Petitioner is highly culpable for its noncompliance.  Resident 2's behavior was no secret to Petitioner's staff.  The staff knew that the resident was engaging in self‑destructive behavior and yet it failed to protect the resident.  If that is not willful violation of the policy, it was certainly in complete disregard of it.

I have considered Petitioner's arguments and I find them to be without merit.

Petitioner argues, first, that the survey on which CMS based its noncompliance findings was tainted by what it characterizes as "inconsistencies, omissions and errors."  Petitioner's brief at 3.  Petitioner doesn't identify these alleged "inconsistencies, omissions and errors."

The outcome of this case does not hinge on surveyor acumen or performance.  CMS produced evidence – which I have identified in this decision – showing that Petitioner failed to comply with a Medicare participation requirement.  Making generalized claims of surveyor errors or omissions doesn't rebut that evidence.  Specific evidence showing that CMS's allegations are incorrect might rebut the evidence offered by CMS if it is credible.  However, and as I shall discuss, Petitioner did not offer such evidence.

Petitioner devotes much of its brief to addressing allegations of noncompliance that CMS withdrew.  Petitioner's brief at 4-8.  I'm unsure why Petitioner challenged these withdrawn allegations inasmuch as they form no part of CMS's case nor does CMS rely on them to justify its remedy determination.  As I have explained, the per-instance civil money penalty that CMS determined to impose is more than justified by the noncompliance allegations that I sustain.

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Petitioner does not dispute that a physician ordered that Resident 2 receive a psychiatric consultation.  It asserts that a consultation "had been requested" by Petitioner's staff but admits that the resident didn't receive one.  Petitioner's brief at 8.

It contends, however, that the resident didn't receive a psychiatric consultation during the 18 days of her stay at Petitioner's facility because "the psych physician only comes to the facility once a month to evaluate residents . . . ."  Petitioner's brief at 8.  That provides no justification for the failure to provide Resident 2 with a psychiatric consultation.  Petitioner's argument reduces to the contention that it was rationing care, providing physician-ordered consultations only monthly without regard to what physicians specified.  There was nothing in the physician's order for Resident 2 that suggested that Petitioner was free to withhold the consultation for weeks – evidently for convenience or as a cost-saving measure – after the order was issued.

Petitioner asserts that Resident 2's striking a table with her hand on November 19, 2017, was an isolated incident and a behavior that Resident 2 had not exhibited prior to that date.  Petitioner's brief at 6.  I find that assertion not to be credible.  CMS obtained interview statements from two members of Petitioner's staff.  One staff member reported that Resident 2 had a daily history of engaging in this behavior.  The other staff member reported that Resident 2 hit the table with her hand.  CMS Ex. 9 at 5.  Petitioner has not offered eyewitness testimony contradicting these reports.  Rather, it relies solely on the declaration of its Director of Nursing, Tracy Henry, R.N.  P. Ex. 3.  In her declaration, Ms. Henry states, without foundation, that the behavior engaged in by Resident 2 on November 19 was an isolated incident.  She does not assert that she had personally observed the resident on prior dates nor does she state explicitly that the reports of Petitioner's staff that the resident repeatedly hit the table are incorrect.

Petitioner also alleges that its staff immediately reported Resident 2's behavior to the resident's physician and family once they observed it on November 19, 2017.  Petitioner's brief at 6.  Petitioner cites to nothing to support this allegation.  I find it to be belied by the admission of Petitioner's staff that they did not report the behavior to the resident's physician.  CMS Ex. 9 at 5.

Petitioner argues that its staff devised care plans that "encompass Resident 2's banging of her hands on the table."  Petitioner's brief at 9.  Petitioner cites to no exhibits and I can find none in the record that support that contention.  Petitioner's own policy required that it identify the resident's self-destructive behavior, assess it, and develop a specific plan to address it.  There is no evidence that it did any of that.

Petitioner asserts that the civil money penalty that CMS determined to impose is unreasonable.  Petitioner's brief at 9.  It contends that any noncompliance on its part "demonstrates no actual harm and did not constitute a pattern."  Id.  That assertion is incorrect in one respect and irrelevant in the other.  There is ample evidence in this case

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that Resident 2 sustained actual harm as a result of Petitioner's staff's failure to address her self-destructive behavior.  Furthermore, CMS has not alleged a pattern of noncompliance, but rather focuses its allegations specifically on the manner in which Petitioner cared for Resident 2.  As I have discussed, there is overwhelming proof that Petitioner's staff disregarded Petitioner's policy in the manner in which it cared for the resident and that disregard led to the resident's hand injury.  There is strong proof in this case that Petitioner is culpable for the serious injury sustained by the resident.

Finally, Petitioner claims that it "lacks sufficient assets to pay the unreasonably high [civil money penalty] without having to go out of business . . . ."  Petitioner's brief at 9.  It contends that it submitted evidence of this financial incapability to CMS.  Id.

I find the record to be devoid of any evidence that supports Petitioner's financial hardship assertion.  Petitioner cites to no evidence in its brief.  None of the 11 exhibits that Petitioner offered and that I received into evidence address Petitioner's financial condition.  See P. Ex. 1-P. Ex. 11.  Given that, I find Petitioner's contention that its financial condition precludes it from paying the civil money penalty to be wholly unsupported.

• 1. Petitioner listed three potential witnesses in its pre-hearing exchange, Mary Arutunyan, Tracy Henry, and Ani Najaryan.  However, it offered written direct testimony only for the latter two witnesses.  CMS objected to receiving the testimony of Ms. Arutunyan.  I infer that, in closing the record, the administrative law judge to whom this case was originally assigned granted that motion.  I see no reason to revisit the issue:  the initial pre-hearing order in this case explicitly required the parties to reduce the testimony of all proposed witnesses to affidavit or declaration form.
• 2. CMS originally alleged that Petitioner failed also to comply with 42 C.F.R. § 483.25(d)(1)(2).  CMS revised its initial determination to delete this allegation.