SUBJECT: Rosewood Care Center of Edwardsville,

Petitioner,

Centers for Medicare & Medicaid Services

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

On July 2, 2003, Rosewood Care Center of Edwardsville (Rosewood) appealed a May 5, 2003 decision by Administrative Law Judge (ALJ) José A. Anglada. Rosewood Care Center of Edwardsville, DAB CR1036 (2003)(ALJ Decision). The ALJ Decision upheld a civil money penalty (CMP) imposed by the Centers for Medicare & Medicaid Services (CMS) for noncompliance with the Medicare participation requirement in 42 C.F.R. � 483.25(h)(2). As explained below, we conclude that the ALJ properly determined that summary judgment in CMS's favor was appropriate. We therefore affirm the ALJ Decision in its entirety and sustain the CMP of $7,000.

Regulatory Background

Rosewood is a skilled nursing facility that participates in the Medicare program. Medicare's participation requirements for nursing and other long-term care facilities are set forth in 42 C.F.R. Part 483.

A facility's compliance with Medicare participation requirements is verified through the survey and certification process described in 42 C.F.R. Part 488, Subpart E. Surveys are usually conducted by a state agency under an agreement with CMS. A survey's findings are presented in a Statement of Deficiencies (SOD), which identifies, using an appropriate "F tag" number, each failure to meet a participation requirement. See CMS State Operations Manual (SOM) Appendix P, Chap. IV.

A facility becomes subject to remedial action when it is not in "substantial compliance" with one or more participation requirements. See 42 C.F.R. � 488.400. A facility is not in substantial compliance with a participation requirement if a deficiency results in actual harm to a resident or poses a risk of more than minimal harm to resident health and safety. 42 C.F.R. � 488.301.

If a survey reveals that a facility is not in "substantial compliance," CMS may either terminate its provider agreement or allow it the opportunity to correct the deficiencies pursuant to a plan of correction. 42 C.F.R. �� 488.402(d), 488.408(f), 488.412. To encourage facilities to implement a plan of correction, CMS may impose a CMP for the days in which the facility remains in a state of noncompliance. (Under the regulations, "noncompliance" means "any deficiency that causes a facility to not be in substantial compliance." 42 C.F.R. � 488.301.)

To impose a CMP, CMS must send the facility a written notice of penalty that describes the nature of the noncompliance, the statutory basis for the CMP, the facility's right to a hearing, and other information. 42 C.F.R. � 488.434. A CMP in the range of $50-$3,000 per day may be imposed for deficiencies that do not constitute "immediate jeopardy" but that either cause actual harm or create the potential for more than minimal harm. 42 C.F.R. � 488.438(a). A CMP accrues until either the facility achieves substantial compliance or its provider agreement is terminated. 42 C.F.R. � 488.454(a).

Procedural History

The following background summary describes the procedural background of the case as well as the contents of key documents submitted by the parties before the ALJ in connection with CMS's motion for summary judgment.

On March 8, 2002, the Illinois Department of Public Health (IDPH) conducted a standard survey and complaint investigation of Rosewood and found that it was not in substantial compliance with 42 C.F.R. � 483.25(h)(2), which requires a facility to ensure that each resident "receives adequate supervision and assistance devices to prevent accidents." CMS Ex. 1. Under F tag 324, the SOD indicates that on December 29, 2001, Rosewood "failed to provide supervision while toileting [Resident 8] resulting in a fall and fractured hip[.]" Id. at 1. This finding was based in part on a telephone interview with Courtney Michl, the certified nursing assistant (CNA) who was providing care to Resident 8 on that day. According to the SOD --

[Ms. Michl] stated that she and another CNA [Chris Guess] were taking residents to the bathrooms in the big shower room [also referred to as the "100 wing bathing suite"]. She stated she had R8 on the toilet and left R8 to assist [Guess] to transfer another resident off the toilet and back into a wheelchair. She stated they heard a loud noise and found R8 on the floor, next to the commode. Michl stated she had left R8 on the toilet for approximately 5 minutes, but only left R8 unattended for approximately one minute to assist [Guess] with a transfer. When Michl was asked if she could see R8 while she assisted [Guess] with a transfer, she replied no. When [Michl] was asked if that was the usual routine for toileting the residents on the 100 hallway, she replied, "Yes, we toilet 2 or 3 residents at one time."

Id. at 2; see also Rosewood Ex. 4 � 6. (According to a declaration and a diagram submitted by Rosewood, the bathing suite where Resident 8 fell is approximately 21 feet by 24 feet and consists of an eight-foot wide common area and three side rooms, each with a toilet and shower. Rosewood Exs. 3 and 5 � 9.

On March 27, 2002, CMS issued a notice of penalty. CMS Ex. 3. The notice informed Rosewood that, based on the March 8 survey and complaint investigation, CMS had decided to impose remedies for its noncompliance with section 483.25(h)(2). Id. These remedies included a $200 per day CMP effective March 8, 2002, directed in-service training to be completed by April 3, 2002, and a mandatory denial of payment for new admissions (DPNA) effective June 8, 2002. Id.

On April 12, 2002, IDPH conducted a revisit survey of Rosewood and determined that it was in substantial compliance with section 483.25(h)(2). See CMS Exs. 5 & 7. On May 15, 2002, CMS notified Rosewood that it was rescinding the DPNA and that the $200 per day CMP had stopped accruing on April 11, 2002. CMS Ex. 7. Accordingly, CMS requested that Rosewood pay the $7,000 CMP that had accrued during the 35 days from March 8 to April 11, 2002. Id.

On May 24, 2002, Rosewood requested an ALJ hearing, asserting that CMS's deficiency finding regarding Resident 8 was unwarranted. CMS then filed its motion for summary judgment. Rosewood opposed the motion by submitting five exhibits, including a diagram of the "100 wing bathing suite" where the accident in question occurred. Rosewood Ex. 3. In addition to the diagram, Rosewood submitted the declarations of Debbie Roseman, a nurse who was on duty in Resident 8's wing (the "100 wing") on December 29, 2001, and Sherry Oettle, who is Rosewood's director of nursing and who participated in preparing Resident 8's initial assessment and plans of care. Rosewood Exs. 4-5.

Nurse Oettle stated in her declaration that the following procedures were followed when toileting Resident 8 in the 100 wing bathing suite:

[S]he was assisted onto the toilet by two CNAs. The CNAs would then provide privacy to [Resident 8] by removing themselves from [her] line of sight by exiting the side bathroom and waiting in the common area. The door to the side bathroom was left open. At no times did an aide remain next to [Resident 8] while she was on the toilet. [Resident 8] was able to inform staff when she was finished toileting.

Id. � 10. Nurse Oettle stated that Resident 8 had been toileted in this manner more than 1000 times without incident prior to December 29, 2001, and that in no instance did she fall from the toilet or attempt to stand up from the toilet without help from the CNAs. Citing surveyor guidelines under F tag 164, ⁽¹⁾ Nurse Oettle also stated that nursing homes are required to give a resident privacy when going to the bathroom, and that Rosewood's method of toileting Resident 8 was "standard nursing practice" and "consistent with [the] facility's duties under F164 and F324 given the configuration of the bathing suite." Id. In addition, she stated that it "was proper for the CNA to remove herself from [Resident 8's] line of sight given the need to respect [her] privacy needs and her history of toileting without falls and her cognitive ability to indicate to staff when she was not toileting." Id. �� 5, 11(B).

Relying in part on the two declarations, Rosewood argued to the ALJ that when it toileted Resident 8 on December 29, it properly balanced both its obligation to provide adequate supervision, and Resident 8's right to privacy and dignity. See Rosewood's Response to Motion for Summary Judgment, at 4-7. Rosewood also argued that the need to balance these competing rights and obligations created a genuine issue of fact precluding summary judgment. Id. at 5.

ALJ Decision

The ALJ found the following facts to be undisputed:

1. Resident 8 was admitted to Petitioner's facility on March 29, 2001, with diagnoses of Alzheimer's disease, bundle branch block, entertrochateric fem fx, and allergies.

2. Resident 8 was identified as being at risk for falls. Resident 8's plan of care described her as confused, seldom responsive to verbal stimuli, capable of responding at times with a yes or no answer to simple requests, and keeping her eyes shut most of the time. Resident 8 is described in her minimum data set (MDS) assessment dated January 8, 2002, as having unsteady balance while sitting. Further, Resident 8's MDSs dated October 10, 2001 and January 8, 2002, reflect that Resident 8 required extensive to total assistance with all activities of daily living, and that she was completely dependent on staff for toilet use, including transfers on and off the toilet. She required two or more staff to assist her during toileting.

3. On October 12, 2001, Resident 8 slid out of her wheelchair while sitting in the television room.

4. On November 9, 2001, Resident 8 was found on the floor of the television room.

5. On December 29, 2001, Ms. Michl was providing toileting care to Resident 8 in what is known as the "main" bathroom which Petitioner has described as a 21 by 24 foot suite, with a six foot entrance, an eight foot wide common area, and open stalls. On the date noted above, there were two CNAs providing toileting care in this bathroom. Ms. Michl was assisting Resident 8, and employee number 6, Ms. Guess, was assisting another resident. At approximately 9:40 a.m., after Resident 8 had been on the commode for about five minutes, Ms. Michl left Resident 8 to assist Ms. Guess with the transfer of another resident. Ms. Michl had been in the process of assisting Ms. Guess transfer the other resident off the commode for about one minute when they heard a "big crash." They rushed to where Ms. Michl had left Resident 8 and found her lying on the floor beside the commode. They called a nurse (Debbie Roseman, L.P.N.), who noted a 3cm. hematoma to the left side of Resident 8's forehead and prepared the incident report.

6. Resident 8 was transported to the hospital and diagnosed with a fracture of the femoral neck (left hip fracture).

ALJ Decision at 8-10 (footnotes and citations omitted). Based on these undisputed facts, the ALJ determined that Resident 8 had been left "unattended" when she fell from the toilet on December 29, 2001. Id. at 11. The ALJ also found that "Resident 8's recent history of falls, unsteady balance, confused state, and the need to be under observation when seated, should have alerted [Rosewood] that she was a potential risk of falls if left unattended on the commode." Id. The ALJ concluded that CMS had established a prima facie case that Rosewood had failed to provide Resident 8 with adequate supervision to prevent accidents, and that Rosewood's violation of section 483.25(h)(2) resulted in actual harm to Resident 8.

The ALJ also determined that Rosewood had failed to create a genuine issue of material fact concerning CMS's prima facie case, and that CMS was therefore entitled to judgment in its favor. ALJ Decision at 6. The ALJ stated that "[s]triking the proper balance" between privacy and supervision was purely a legal issue, and that Rosewood's argument that its actions were motivated by a desire to safeguard Resident 8's privacy was "poorly concocted in the aftermath," saying:

When Ms. Michl left Resident 8 unattended, it is evident that this alleged equilibrium of "competing requirements" was not governing her actions. What drove Ms. Michl away from Resident 8 was not the desire to provide Resident 8 with privacy, but, rather, to give assistance to another CNA who could not transfer a resident without help. Even acknowledging that privacy may be a legitimate concern for residents of long-term care facilities when toileting, Petitioner itself had determined that at least two facility staff members had to be present to provide toileting care to Resident 8, and to remain in close enough proximity to be able to give immediate succor so as to prevent an accident.

Id. at 8, 12.

Finally, the ALJ found that the amount of the CMP imposed by CMS was reasonable. ALJ Decision at 13. (Rosewood did not challenge this finding, only the ALJ's determination that CMS was entitled to summary judgment on the supervision issue.)

Standard of Review

Our standard of review on a disputed conclusion of law is whether the ALJ Decision is erroneous. Our standard of review on a disputed finding of fact is whether the ALJ's finding is supported by substantial evidence on the record as a whole. See Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs, �4(b), http://www.hhs.gov/dab/guidelines/ prov.html. Whether summary judgment is appropriate is a legal issue that we address de novo, viewing the proffered evidence in the light most favorable to the non-moving party. See Carrier Mills Nursing Home, DAB No. 1883 (2003).

Discussion

Rosewood contended in this appeal that summary judgment was improper because "material facts" demonstrated that Resident 8's need for supervision had to be weighed against her right to privacy and dignity. Request for Review (RR) at 2. According to Rosewood, these material facts were that: (1) Resident 8 had the capacity to know when she needed to go to the bathroom and when she had finished with that activity; and (2) prior to December 29, 2001, Resident 8 had been toileted more than 1000 times without a CNA being next to her, without being in a CNA's line of sight, and without falling from the toilet. Id. at 2-3. Rosewood asserted that the ALJ ignored these facts and thus "failed to apply the proper standard" in determining whether it was in substantial compliance with section 483.25(h)(2). Id. at 1, 3.

For the reasons discussed below, we find that Rosewood did not raise a genuine issue of material fact, ⁽²⁾ and thus the ALJ did not err in granting summary judgment for CMS.

Section 483.25(h)(2) required Rosewood to ensure that Resident 8 received "adequate supervision and assistance devices to prevent accidents." What was "adequate" supervision for Resident 8 depended, of course, on her functional capacity, behavioral patterns or tendencies, and other relevant factors. Resident 8's comprehensive assessment, whose findings Rosewood did not dispute, indicates that she required the assistance of one or more persons to ambulate, accomplish transfers, and perform many other activities of daily living, including going to the bathroom. CMS Ex. 11. The assessment also indicates that she was unsteady while sitting ⁽³⁾ and could not balance herself standing without physical help. See CMS Ex. 11, at 3 and Ex. 12, at 4. The plan of care describes Resident 8 as being confused, seldom responsive to verbal stimuli, capable of responding at times with a yes or no answer to simple requests, and keeping her eyes shut most of the time. CMS Ex. 10, at 3.

It is undisputed that Resident 8 also had a history of falls. Facility records show that within 10 weeks prior to December 29, 2001, she had fallen twice from a seated position, once after attempting to get up unassisted. CMS Ex. 13, at 1, 3 and Ex. 14, at 1, 3. These records also indicate certain measures would be implemented to avoid further falls, including keeping Resident 8 in an "observable area," having her wear a body alarm, and keeping her where the staff could monitor her while she was in her wheelchair. CMS Ex. 13, at 4 and Ex. 14, at 4. Resident 8's "potential" for falls was noted in her plan of care, and nursing notes indicate that she wore the body alarm to alert staff in case she attempted to transfer herself without assistance. CMS Ex. 9, at 4 and 16, at 1.

In her declaration, Rosewood's nursing director, Sherry Oettle, described the procedures that were followed (or supposed to be followed) in toileting Resident 8. Nurse Oettle stated that these procedures were consistent with the facility's obligation under section 483.25(h)(2) to supervise Resident 8. In view of this admission, it is reasonable to conclude that Rosewood was not in substantial compliance with section 483.25(h)(2) if it failed in some material way to follow the procedures outlined by Nurse Oettle or, if the procedures were not followed, failed to furnish a comparable level of supervision.

CMS's evidence showed, and Rosewood did not dispute, that the specified procedures were not followed on December 29. They called for two CNAs to assist Resident 8 on to the toilet and then to wait in the bathing suite's common area until she was finished. However, according to CNA Michl's undisputed account of the incident (as reported in the SOD), no CNA was waiting in the common area when she fell on December 29. Instead, CNAs Michl and Guess were assisting another resident with a transfer in a different side room of the bathing suite. See CMS Ex. 8, at 5. Michl admitted to the surveyors that she left Resident 8 unsupervised for about one minute while she was helping the other resident and thus could not see what Resident 8 might be doing. CMS Ex. 1, at 2 and Ex. 8, at 5. Rosewood offered no evidence to raise any genuine dispute of fact about whether these statements had been made and were in fact correct.

Nurse Oettle asserted that Resident 8 was "supervised" at all times in the bathing suite on December 29 because the CNAs were always within 10 feet of her and could have heard her if she had verbally indicated that she was finished. Rosewood Ex. 5, � 11. However, this assertion, even if true, does not establish that Rosewood provided Resident 8 with an adequate level of supervision in light of the circumstances. Given Resident 8's undisputed cognitive impairments, balance deficits, history of falls, and total or near total dependence on staff for assistance in performing activities of daily living, Rosewood knew or should have known that she was at some risk for falling from the toilet, or for falling while attempting to get up from the toilet without assistance. Rosewood does not deny the existence of that risk or deny that it was reasonably foreseeable. There is, moreover, no evidence that Resident 8's risk for falling from the toilet was lower than her risk for falling in other parts of the facility.

The evidence submitted by CMS shows that the CNAs were not in a position to help Resident 8 avoid a fall because they were helping another resident in a different side room of the bathing suite. Rosewood offered no evidence that the CNAs could have furnished timely assistance to Resident 8 if she had started to fall from a sitting position or raise herself from the toilet (even assuming that they were only 10 feet away and she had given them some verbal warning). In addition, neither of Rosewood's declarants asserted that it was safe for one or both CNAs to leave the common area, even for a short period, to help another resident while Resident 8 was still on the toilet. In short, because Rosewood offered no evidence to contradict CMS's evidence that the CNAs were not in a position to provide adequate supervision to prevent falls, Nurse Oettle's assertion that the CNAs were only 10 feet away and could have heard her indicate that she was finished is insufficient to raise a genuine dispute of material fact. Her statement that Resident 8 had been safely toileted 1000 times in accordance with the procedures she described also does not raise a genuine issue of material fact because it is undisputed that Resident 8 was not toileted in accordance with those procedures on December 29.

Rosewood contended that the ALJ failed to give proper consideration or weight to Resident 8's right to privacy in determining whether she received adequate supervision. RR at 2-3. Rosewood also asserted that it appropriately balanced Resident 8's needs for privacy and supervision by requiring the CNAs to keep her out of their line of sight while she was on the toilet. RR at 2-3. Id. However, as the ALJ found, Rosewood's noncompliance with section 483.25(h) stemmed from an action -- CNA Michl leaving the common area to help another resident -- that was taken for a purpose other than safeguarding Resident 8's privacy. Consequently, it is unnecessary to determine whether Resident 8 needed constant visual monitoring in the bathing suite and, if so, whether that need outweighed her right to privacy.

Finally, Rosewood contended that the ALJ's finding that there should have been four (instead of two) CNAs in the bathing suite on December 29 was not supported by substantial evidence. RR at 4. We do not address this contention because even if the ALJ's finding is unsupported, summary judgment in CMS's favor is warranted based on undisputed facts showing that Resident 8 received inadequate supervision in the bathing suite on December 29, 2001.

Conclusion

For all the reasons above, we affirm the ALJ's determinations that summary judgment in favor of CMS was appropriate. Accordingly, we sustain the CMP imposed by CMS.

Cecilia Sparks Ford

Judith A. Ballard

Donald F. Garrett
Presiding Board Member

1. Appendix PP of the State Operations Manual states, under F tag 164, that a resident "must be granted privacy when going to the bathroom and in other activities of personal hygiene," and that "[i]f an individual requires assistance, authorized staff should respect the individual's need for privacy." These guidelines relate to 42 C.F.R. � 483.10(e), which provides that a resident "has the right to personal privacy and confidentiality of his or her personal and clinical records."

2. As indicated, the ALJ listed, in six numbered paragraphs, several facts that he found to be undisputed. Rosewood has not disputed any of these facts. The only fact identified by Rosewood as being in dispute is Resident 8's ability to verbally indicate that she was finished going to the bathroom. See RR at 3. Nurse Roseman and Nurse Oettle stated in their declarations that Resident 8 had this ability. The ALJ discounted these statements for various reasons. ALJ Decision at 9, n.9. As discussed in the text below, whether or not Resident 8 could indicate that she was finished toileting is immaterial for purposes of determining whether she received adequate supervision on December 29, 2001.

3. During an October 2001 resident assessment, Resident 8 could not maintain sitting balance without assistance. CMS Ex. 11, at 3. A January 2002 resident assessment found that she was unsteady while sitting but could rebalance herself without physical help. CMS Ex. 12, at 4. Although these findings regarding Resident 8's ability to maintain balance while sitting are not altogether consistent, they indicate at a minimum that she was unsteady and perhaps susceptible to losing her balance from this position. Rosewood did not assert that the inconsistent findings reflect an actual improvement in functioning between October 2001 and January 2002 (as opposed to a random fluctuation in her ability to maintain balance during testing).