Ashford Hall, DAB CR5263 (2019)

DECISION

Petitioner, Ashford Hall, is a long-term-care facility, located in Irving, Texas, that participates in the Medicare program.  On a Texas spring afternoon, with outside temperatures in the mid-80’s, the facility’s van driver abandoned, in the back of the van, an especially ill and vulnerable resident who was returning from dialysis treatment.  Following an investigation, completed May 27, 2016, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and that its deficiencies posed immediate jeopardy to resident health and safety.  CMS imposed a civil money penalty (CMP) of $7,050 per day for 21 days.

Petitioner appeals, and the parties have filed cross-motions for summary judgment.

I grant CMS’s motion and deny Petitioner’s.  I find that, from May 7 through May 27, 2016, the facility was not in substantial compliance with Medicare program requirements; that its deficiencies posed immediate jeopardy to resident health and safety; and that the penalty imposed is reasonable.

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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).

Here, responding to a complaint, a surveyor from the Texas Department of Aging and Disability Services (state agency) visited the facility.  CMS Ex. 1; CMS Ex. 16 at 1 (Finchum Decl.).  On May 27, 2016, she completed her investigation.  CMS Ex. 1.  Based on her findings, CMS determined that the facility was not in substantial compliance with five program requirements:

• 42 C.F.R. § 483.13(c) (Tag F224) (staff treatment of residents:  policies and procedures to prohibit mistreatment, neglect, and abuse) at scope and severity level L (widespread substantial noncompliance that poses immediate jeopardy to resident health and safety);
• 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) at scope and severity level L;
• 42 C.F.R. § 483.13(c) (Tag F226) (policies to prohibit abuse and neglect) at scope and severity level L; 
• 42 C.F.R. § 483.25(h) (Tag F323) (quality of care:  accident prevention) at scope and severity level L; and
• 42 C.F.R. § 483.75 (Tag F490) (administration) at scope and severity level L.

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CMS Ex. 4.1

Thereafter, CMS determined that the facility returned to substantial compliance on May 28, 2016.  CMS Ex. 5.

CMS imposed against the facility a CMP of $7,050 per day for 21 days of immediate jeopardy (May 7 – 27, 2016), for a total penalty of $148,050.  CMS Ex. 5.

Petitioner timely requested review.

At the outset of this case, Petitioner moved for summary judgment, arguing, based on an administrative law judge’s decision, that the survey here was unlawful because the survey team did not include a registered nurse.  The Departmental Appeals Board subsequently reversed the decision upon which Petitioner relies.  The Board rejected the notion that the absence of a registered nurse renders invalid CMS’s noncompliance determination and imposition of a remedy.  Avon Nursing Home, DAB No. 2830 (2017).  I therefore deny Petitioner’s first motion for summary judgment.

The parties have filed pre-hearing briefs (CMS Br.; P. Br.), cross-motions for summary judgment (CMS MSJ; P. MSJ), and responses to summary judgment (CMS Response; P. Response).2   CMS has submitted 17 exhibits (CMS Exs. 1-17), and Petitioner has submitted six exhibits (P. Exs. 1-6).

Issues

As a threshold matter, I consider whether summary judgment is appropriate.

On the merits, the issues are:

1. From May 7 through 27, 2016, was the facility in substantial compliance with Medicare program requirements;
2. If the facility was not then in substantial compliance, did its deficiencies pose immediate jeopardy to resident health and safety; and

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3. If the facility was not in substantial compliance, is the penalty imposed – $7,050 per day – reasonable.

Petitioner also seeks review of CMS’s determination that the scope of its noncompliance was widespread.  I am not authorized to consider that issue.  The regulations limit review of scope-and-severity determinations.  I may review scope and severity if:  (1) a successful challenge would affect the range of the CMP; or (2) CMS has made a finding of substandard quality of care that results in the loss of approval of the facility’s nurse aide training program.  42 C.F.R. § 498.3(b)(14) and (d)(10).  Here, I may review CMS’s finding of immediate jeopardy because that determination affects the range of the CMP:  the per-day penalty range for findings of immediate jeopardy is higher than the range for findings of substantial noncompliance that does not pose immediate jeopardy.  42 C.F.R. §§ 488.408(d)(1)(iii) and (e)(1)(iii), 488.438(a).  The scope of the deficiency (isolated, pattern, widespread), however, does not affect the range of the CMP; nor is it a finding of substandard quality of care that would affect approval of the facility’s nurse aide training program (if it has one).  CMS’s determination that the facility’s deficiencies were widespread is therefore not reviewable.

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., 477 U.S. at 323-24).  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. Indus., 475 U.S. at 587.

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In examining the evidence for purposes of determining whether summary judgment is appropriate, 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, DAB No. 2652 at 6-7, 14-15; 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.”).

Here, the parties have filed cross-motions for summary judgment.  They dispute very few facts, and, as the following discussion explains, those disputes are not material.

1. CMS is entitled to summary judgment because the undisputed evidence establishes that the facility’s van driver abandoned, in the back of his van, an especially ill and vulnerable resident who was returning from dialysis treatment; the facility’s investigation and reporting of the incident were incomplete and untimely.  These failings put the facility out of substantial compliance with 42 C.F.R. §§ 483.13(c), 483.25(h), and 483.75.3

Program requirements:  42 C.F.R. § 483.13(c) (Tags F224, F225, and F226).  “Neglect” means failing to provide a resident with the goods and services needed to avoid her suffering physical harm, mental anguish, or mental illness.  42 C.F.R. § 488.301.  Facilities must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents.  42 C.F.R. § 483.13(c).  In assessing whether section 483.13(c) is violated, I consider whether the facts surrounding an instance or instances of neglect “demonstrate an underlying breakdown in the facility’s implementation of the provisions of an anti-neglect policy.”  Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 6 (2016) (quoting Oceanside Nursing & Rehab. Ctr., DAB No. 2382 at 11 (2011)).  This means that I should review the circumstances surrounding an incident of neglect to determine whether they show “a systemic problem in implementing policies and procedures to prevent neglect.”  Southpark Meadows, DAB No. 2703 at 6 (quoting Columbus Nursing & Rehab. Ctr., DAB No. 2247 at 27 (2009)).

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The facility must also ensure that all alleged violations are reported immediately to the facility administrator and appropriate state officials; and it must have evidence that all alleged violations are thoroughly investigated.  The results of all investigations must be reported to the administrator (or designated representative) and to the appropriate state officials within five working days of the incident.  If the violation is verified, the facility must take appropriate action.  42 C.F.R. § 483.13(c)(2), (3), and (4).

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.  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, DAB No. 2115 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).

Program requirement:  42 C.F.R. § 483.75 (Tag F490).  The facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.

Facility policies.  The facility had in place written policies to prohibit abuse, neglect, and “injuries of unknown source.”  CMS Ex. 13 at 1.  The policies charge the facility administrator with “overall responsibility” for coordinating and implementing the abuse and neglect policy, but allows her to delegate that authority to others within the facility.  CMS Ex. 15 at 3.

The policy directs staff to report “promptly” to management – the facility administrator or her designee – incidents of neglect.  The administrator or designee then appoints a member of the management team to investigate and provides the investigator with relevant supporting documents.  “At a minimum,” the investigator must:

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• Review the completed documentation;
• Review the resident’s medical record to determine the events leading up to the incident;
• Interview the person(s) reporting the incident;
• Interview any witnesses;
• Interview the resident (as medically appropriate);
• Interview the resident’s attending physician, as needed, to determine the resident’s current level of cognitive function and medical condition;
• Interview staff members on all shifts who have had contact with the resident during the period of the alleged incident;
• Interview the resident’s roommate, family members, and visitors;
• Interview other residents to whom an accused employee provides care or services; and
• Review all events leading up to the alleged incident.

CMS Ex. 13 at 1.  With respect to the interviews, each must be conducted separately and in a private location; the interviewer must explain the interview’s purpose and assure confidentiality; and if the person interviewed discloses self-incriminating information, the interviewer must inform him/her of his/her right to terminate the interview until his/her rights are protected (e.g., he/she obtains counsel).  Witness reports must be in writing, signed, and dated.  Id.

The investigator must consult daily with the facility administrator regarding the progress of the investigation, and the administrator must inform the resident (or representative) of the results of the investigation and corrective action taken.  Within five working days of the incident, the administrator must provide the state agency, local police, ombudsman, and others, as required by law, with a written report of the results of the investigation.  CMS Ex. 13 at 2.

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The facility also had in place written procedures for operating the wheelchair lift for boarding and de-boarding the bus.  P. Ex. 6 at 20-21.4

Resident 1 (R1).  R1 was a 69-year-old woman, admitted to the facility on April 3, 2016, suffering from acute bacterial pneumonia, congestive heart failure, and a plethora of other impairments, including end stage renal disease, Parkinson’s disease, idiopathic neuropathies, and diabetes.  She had muscle weakness and difficulty walking.  CMS Ex. 8 at 2, 24.  She required oxygen via a nasal cannula.  CMS Ex. 8 at 20, 21.  Her vision was impaired.  CMS Ex. 8 at 9; P. Ex. 4 at 1.  She was anxious and suffered cognitive loss with impaired decision-making abilities.  CMS Ex. 8 at 4, 10.  Nevertheless, she was alert and oriented, with a BIMS (Brief Interview for Mental Status) score of 15, which indicates no cognitive impairment.  CMS Ex. 1 at 4; CMS Ex. 16 at 3 (Finchum Decl.).  Because of her renal disease, she required dialysis three times a week.  CMS Ex. 8 at 26.

The incident – May 7, 2016.  The parties agree on the basic circumstances surrounding R1’s having been abandoned in the back of the facility van.  At about 10:35 a.m. on May 7, she left the facility and was driven to her dialysis treatment center.  She was in a wheelchair with her oxygen tank attached to its back.  The wheelchair was secured to the van floor.  CMS Ex. 10 at 1; see CMS MSJ at 3; P. Response at 2.  R1 completed dialysis at about 3:15 p.m.  The facility’s van driver picked her up at about 3:45 p.m., and, according to the facility’s written report, they arrived at the facility parking lot at 4:00 p.m.  CMS Ex. 10 at 1; see CMS MSJ at 3; P. Response at 2.  The outside temperature was approximately 84 degrees.  That would have made the temperature inside the vehicle 104 degrees after ten minutes and 114 degrees after 20 minutes.  CMS Ex. 1 at 6-7; CMS Ex. 16 at 6 (Finchum Decl.).

Although the facility’s written report skips over some critical details – such as, what happened between the van’s arrival at the facility and staff’s discovering R1 – the parties agree that the van driver parked the van, got out, and left the area; he abandoned R1, who remained in the back, still strapped in her wheelchair.  See CMS MSJ at 3; P. Response at 2.

The parties disagree on the amount of time R1 was left unattended in the van.  CMS suggests that she was there “for an unknown length of time.”  CMS MSJ at 3.  Petitioner maintains that she was there for “no more than 15 minutes.”  P. Response at 2.  The evidence on this is conflicting.  Compare CMS Ex. 1 at 5-6; CMS Ex. 12 at 3 (the facility’s counselling notice indicating the resident was left unattended for 40 minutes)

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and CMS Ex. 12 at 5, 6 (witness statements suggesting they discovered R1 in the van as late as 5:00 p.m.) with CMS Ex. 10 at 1; P. Ex. 1 at 1 (Peters Decl. ¶ 3) (DON statement that a nurse called, at 4:14 p.m., to inform her of the incident); P. Ex. 2.5   For purposes of summary judgment, I accept Petitioner’s position that R1 remained alone in the van for about 15 minutes.

In any event, the parties agree that, at some point, R1 realized that she had been abandoned.  She unfastened herself, disconnected her oxygen, climbed from the back of the van into the driver’s seat, and began honking the horn.  Dietary staff discovered her there, crying and upset.  CMS MSJ at 4; P. Response at 3; see CMS Ex. 8 at 17; CMS Ex. 10 at 1.  Dietary Aide Bernice Robles alerted Licensed Vocational Nurse (LVN) Betty Williams that R1 was “on the bus, blowing the horn,” crying “the bus driver forgot about me and left me on the bus for hours.”  CMS Ex. 8 at 17.

Staff assessed R1 and found her alert and oriented.  Three of them returned her to her wheelchair, which was still in the back of the bus, and took her back to the facility.  CMS Ex. 8 at 17.  She asked for, and received, pain medication and her anti-anxiety drugs.  CMS Ex. 8 at 17.

LVN Williams called the resident’s daughter and left a message.  The daughter came to the facility, very upset, complaining that her mother had been left on the bus “for an hour” with the windows rolled up; she threatened to call the state agency and the police.  CMS Ex. 8 at 15, 17.  According to the facility’s written report (but not the nurse’s progress note), staff also left a message for R1’s physician.  CMS Ex. 10 at 1.

On May 9, R1’s daughter reported the incident to the state agency, triggering the state’s investigation.  CMS Ex. 3 at 4 (McElroy Decl.).

The facility’s investigation.  The record is silent as to when someone reported the incident to the facility administrator.  Nor does it name the person appointed to investigate.  And the investigation itself did not comport with facility policies or federal requirements.

An unidentified person from “HR” interviewed the driver by telephone on May 9.  According to the unsigned, undated report, the driver said that he picked up R1 at 3:45 p.m. and arrived at the facility at about 4:20 (35 minutes later).  He also said, inconsistently, that the drive took him 15 minutes, but the interviewer did not follow-up (as in, how did the driver account for the missing 20 minutes).  According to the report,

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the driver got out of the van and clocked out for his lunch break.  When he returned at 5:16 p.m., he learned that the resident was found in the van.  He said that he had simply forgotten that she was there.  CMS Ex. 12 at 4; see CMS Ex. 13 at 1.

In a short statement, dated May 9, and signed by Bertha Mejia, the witness reported that, at “around 5:00 p.m.” on Saturday, the 7th, “Blanca from dietary” told her that a resident was alone in the bus.  Witness Mejia went out to the bus, found the resident, maneuvered her into her wheel chair, and took her to the nurses’ station.  Witness Mejia thought that she’d seen the driver return at “around 3:30.”  She also reported that “Juan and a younger girl from dietary” were there.  CMS Ex. 12 at 5.

In an undated statement, signed by three dietary aides, they reported that at “around 3:30 p.m.,” they heard honking.  They looked around.  At about 5:00 p.m. “Juan told us” that someone was stuck inside the bus.  They went outside.  Then one employee went to look for a nurse, “Blanca” went to find someone from maintenance or housekeeping, and Juan stayed with the resident.  The three helped the nurse and “Berta” get the resident out of the bus.  They returned to work and the nurse took the resident back to the hall.  CMS Ex. 12 at 6.

A “progressive counselling form,” dated May 10, 2016, indicates that the driver’s employment was terminated.  It describes the incident:  the driver picked up the resident, returned to the facility, got out of the bus and “forgot the resident inside.”  The resident was “left in [the] bus[,] unattended[,] for approximately 40 minutes until found by other employees.”  CMS Ex. 12 at 3.

No one interviewed R1, even though the facility policy directs the investigator to do so.  CMS Ex. 13 at 1.  R1 told Surveyor Finchum that, on May 10, the facility’s then-administrator told her that she would be back to get her statement, but the administrator never returned.  CMS Ex. 1 at 6.

An unsigned, undated “investigation summary” says that R1 completed her dialysis at 3:15 and was picked up from the dialysis center at approximately 3:45.  The driver returned to the facility at around 4:00 p.m.  At 4:14 p.m., LVN Williams called the DON to report that a dietary aide found R1 in the van.  According to the summary, the resident was in the van for approximately 15 minutes after returning to the facility.  The report concludes that the driver was suspended and then terminated on May 9.  CMS Ex. 9.

The facility’s written report to the state agency is dated May 25, 2016, long after the “five-working-day deadline” called for by the regulations and the facility’s own policy.  42 C.F.R. § 483.13(c)(4); CMS Ex. 13 at 2.  It does not refer to the eye-witness statements and offers minimal information.  It describes the resident and her departure for dialysis at 10:35 a.m., secured in her wheelchair; and states that:

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• R1 completed dialysis at 3:15, was picked up at 3:45, and arrived back at the facility at about 4:00 p.m.;
• At 4:14 p.m., Betty Williams (nurse) notified DON Peters that the resident was left in the van;
• Dietary Aide Bernice Robles told Betty Williams that the resident was in the vehicle;
• Resident assessed; she was alert and oriented but upset and crying;
• Resident able to walk with a rolling walker but typically uses a wheelchair; in the facility she was “stand by assist only and chose to do things her own way”;
• Nurse Williams notified daughter and physician;
• Driver immediately suspended and terminated on the morning of May 9.

CMS Ex. 10 at 1.  The rest of the report discusses steps taken to correct the deficiency:  in-service training, to be completed by May 26; increased monitoring of staff; and assigning a staff member to accompany residents during transportation to and from appointments.  All steps were to be completed by May 26.  CMS Ex. 10 at 2-4.

Facility noncompliance:  neglect and accident prevention.  The driver simply walked away, leaving the resident alone and unsupervised, strapped in her wheelchair, in the back of the van.  That she managed to disconnect her oxygen, disengage from her wheelchair, and maneuver herself into the front seat was fortunate (and may have saved her life), but the facility can hardly take credit for her resourcefulness.  Without question, the facility did not provide R1 the goods and services she needed to avoid suffering physical harm and mental anguish.  See 42 C.F.R. § 488.301.  It did not provide her “adequate supervision” to prevent accidents, as required by section 483.25(h).  See P. Response at 13 (“Without question, Driver A did not properly supervise [R1] when he left her in the van.”).

Petitioner, however, characterizes the van driver’s action as “an unforeseeable and unpredictable lapse in common sense.”  It argues that the facility did not violate the regulations because it had in place adequate written policies and procedures and should not be held accountable for “an unforeseen, one-time human error . . . after nine years of issue-free employment . . . .”  P. Response at 8, 13-14.6   But it is well-settled that a

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facility “cannot disavow responsibility for the actions of its employees,” through which it acts.  Springhill Senior Residence, DAB No. 2513 at 14 (2013), citing Beverly Health Care Lumberton, DAB Ruling No. 2008-5 (Denial of Petition for Reopening Decision No. 2156) at 6-7 (2008); Emerald Oaks, DAB No. 1800 at 7 n.3 (2001); North Carolina State Veterans Nursing Home, Salisbury, DAB No. 2256 (2009).

Moreover, people experience “lapses in common sense” all the time, particularly when they are performing routine tasks.  That’s why institutions, such as long-term-care facilities, must develop procedures to protect against such lapses and to keep the residents safe.  Here, the facility seems to have lacked those procedures.  R1 had been away from the facility for almost six hours; her dialysis was completed by 3:15 p.m.  Yet, almost an hour later, she had not returned, no one seems to have been monitoring her whereabouts, and no serious effort was underway to locate her.

The facility has not come forward with evidence that it had in place any systematic procedure for monitoring residents who were taken to outside appointments.  Surveyor Ashley Finchum, LBSW, reviewed the facility’s “Dialysis Communication Record” for May 7, but it did not indicate the time R1 left the dialysis center to return home.  CMS Ex. 1 at 4.  In the note discussing her actions after R1 returned to the facility, LVN Williams wrote that she called the dialysis center to find out when R1 left there; staff told her that the resident finished dialysis at 3:15, but they did not know when she left the center.  CMS Ex. 1 at 5; CMS Ex. 8 at 17.

Citing a (double or triple) hearsay statement from the Statement of Deficiencies, Petitioner claims that LVN Williams “took steps to locate [R1] after she failed to return during her usual 4:10 to 4:15 schedule.”  P. Response at 15.  In fact, according to the Statement of Deficiencies, LVN Williams told the surveyor that “she was just about to call” the dialysis center when the dietary aide informed her that “someone was in the facility vehicle.”  CMS Ex. 1 at 7.  For purposes of summary judgment, I accept that LVN Williams made this statement, and I accept as true the underlying claim – that she was thinking about calling the center.7   But this does not establish that LVN Williams had

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taken any actual steps toward locating the resident; she didn’t say that she had picked up the phone; she simply planned to call the dialysis center – whose staff, in any event, could not have told her when R1 left or where she was.  I do not consider this a sufficient means of monitoring the resident’s whereabouts and ensuring her safety.  See CMS Ex. 3 at 3 (McElroy Decl.).

Petitioner argues that nothing compels a facility to “utilize more than one employee to ensure the safe transport of a resident to and from [her] medical appointments.”  P. Response at 14-15.  I agree.  The facility might have implemented any number of systems for ensuring a resident’s safe return to the facility, such as directing the dialysis center to alert facility staff when a resident departs or requiring the driver to check in when he and the resident leave an appointment and when they arrive at the facility – easily done in this age of cell phones.  The facility is free to choose its own methods, but those methods must constitute an “adequate” level of supervision.  Briarwood, DAB No. 2115 at 5.  Here, Petitioner has produced no evidence that it had any particular system in place to track residents transported to outside appointments.

Finally, even if the facility were not responsible for the negligence of its employees (which it is), it would be out of substantial compliance based on its inadequate investigation and untimely reporting of the incident.  At a minimum, to comply with section 483.25(c), a facility must follow its own policies and protocols.  W. Tex. LTC Partners, DAB No. 2652 at 14, aff’d., W. Tex. LTC Partners, 843 F.3d 1043; Columbus Nursing & Rehab., DAB No. 2273 at 7; see Beverly Health Care Lumberton v. Leavitt, 338 F. App’x. 307, 314 (4th Cir. 2009) (holding that a facility’s failure to follow its own policies for reporting and investigating abuse and neglect shows a “wider systemic problem in the facility” jeopardizing the safety of its residents.).

Here, no evidence indicates when staff reported the incident to the administrator, although, based on those interviews that are dated, the investigation did not begin until May 9, the same day R1’s daughter reported the incident to the state agency.  The facility itself did not “immediately” report the incident, as required by section 483.13(c)(2).  In fact, the facility did not mention the incident to the state agency until May 25 – the day

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Surveyor Finchum began her investigation – when it submitted its written report.  CMS MSJ at 7; CMS Ex. 1 at 26; CMS Ex. 3 at 5 (McElroy Decl.); CMS Ex. 10.

Petitioner argues that it was not required to report the incident because its reporting policy “is triggered” only “in the event of a suspected violation or [substantiated] incident of abuse that is required to be reported by law.”  P. Response at 10, citing CMS Ex. 15 at 1.  The federal regulation requires the facility to report “all alleged violations involving mistreatment, neglect or abuse . . . immediately . . . to other officials in accordance with state law.”  And the results of the facility’s investigation must be reported “to officials in accordance with state law . . . within 5 working days of the incident. . . .”  42 C.F.R. § 483.13.  Similarly, under state rules, the facility must report to the state agency incidents of alleged neglect and all situations in which it has “cause to believe that the physical or mental health or welfare of a resident has been or may be adversely affected by abuse, neglect, or exploitation caused by another person . . . .”  40 Tex. Admin. Code § 19.602(a).

The Departmental Appeals Board has repeatedly and soundly rejected any suggestion that the facility gets to determine when and whether to report a suspected violation.  The reporting requirement is triggered by any allegation of mistreatment, neglect, or abuse, whether or not it is recognized as such by the facility.  Rockcastle Health & Rehab. Ctr., DAB No 2891 at 11 (2018) and cases cited therein.

Nor did the facility “thoroughly investigate” as required by section 483.13(c) and the facility’s policies.

• No one interviewed R1, even though required to do so by the facility’s policies.  CMS Ex. 13 at 1.  Petitioner suggests that the administrator interviewed the resident and argues that “nothing” in the facility’s policies or CMS’s regulations require “a formal statement being taken from [R1] over multiple interviews.”  P. Response at 9.  There are two major problems with Petitioner’s position:  first, no evidence in this record establishes that anyone interviewed R1; rather, the only evidence of any interaction between R1 and an investigator suggests that the administrator promised to interview her but did not (CMS Ex. 1 at 6); second, facility policies do, in fact, require a “formal statement,” in that the witness report must be in writing, signed, and dated.  CMS Ex. 13 at 1.
• The facility administration delayed investigating and then all but disregarded completely the eye-witness accounts of the incident.  Petitioner justifies this disregard by claiming that the accounts “were not taken contemporaneously with the events and were not supported by anything other than the witnesses’ best guesses.”  P. Response at 4.  We do not know when the dietary workers were

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interviewed because the report of their interview is not dated.8   CMS Ex. 12 at 6.  But I accept Petitioner’s representation that the interviews were delayed, and I agree that contemporaneous statements are often the most reliable accounts of an event, which makes the facility’s delay in obtaining those accounts all the more indefensible.  See Cedar Lake Nursing Home, DAB No. 2390 at 9 (2011).

• Contrary to the facility’s policy, the interview with the van driver was not signed; the statement from the dietary aides was not dated.  CMS Ex. 12 at 4, 6.  The “investigation summary” was neither signed nor dated.  CMS Ex. 9.

Thus, the undisputed evidence establishes that:  the facility lacked procedures for ensuring the safe return of residents taken to outside appointments; a facility employee abandoned R1 in the back of a van; the facility’s administration did not timely and thoroughly investigate the incident; and the facility’s administration did not timely report the incident to the state agency as required by state and federal regulations.  The facility was therefore not in substantial compliance with sections 483.13(c) and 483.25(h).

Facility noncompliance:  administration.  A finding of substantial noncompliance in the facility’s administration may derive from findings of substantial noncompliance in other areas:

[W]here a facility has been shown to be so out of compliance with program requirements that its residents have been  placed in immediate jeopardy, the facility was not administered in a manner that used its resources effectively to attain the highest practicable physical, mental, and psychosocial well-being of each resident.

Asbury Ctr. at Johnson City, DAB No. 1815 at 11 (2002); Odd Fellow & Rebekah Health Care Facility, DAB No. 1839 at 7 (2002); Stone County Nursing & Rehab. Ctr., DAB No. 2276 at 15-16 (2009).  As discussed below, I find that the facility’s deficiencies posed immediate jeopardy to resident health and safety, which, by itself, justifies the finding that the facility was not in substantial compliance with 42 C.F.R. § 483.75.

Moreover, as the above discussion establishes, the facility’s administration was directly responsible for inadequately investigating and failing to report the incident to the state agency, as required by federal and state regulations.  The facility was therefore not administered in a manner that used its resources effectively to attain or maintain the

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highest practicable physical, mental, and psychosocial well-being of its residents and was not in substantial compliance with 42 C.F.R. § 483.75.

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

Petitioner agrees that R1 was harmed by the incident, but argues that the harm was not “serious.”  P. Response at 17.  I consider the harm to R1 serious; not only was she crying and upset, she required pain medication and anti-anxiety drugs.  CMS Ex. 8 at 17.  Moreover, by its very nature, leaving a medically-compromised resident alone and unattended in a closed van on a warm-to-hot afternoon is likely to cause serious injury or harm.  That R1 was able to maneuver her way to the front of the van and signal for help was fortuitous and, in light of her considerable inabilities, surprising.  Many nursing home residents in her position could not have done it.  In any event, the facility does not avoid culpability because the resident was able to save herself.

Beyond that, management’s inadequate investigation and its failure to report the incident create a dangerous situation for all of the facility residents.  Beverly Health Care Lumberton, 338 F. App’x at 314.

CMS’s determination that the deficiencies posed immediate jeopardy to resident health and safety is therefore not clearly erroneous.

3. The penalties imposed are 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

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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 $7,050 per day for each day of immediate jeopardy, which is in the mid to high range for a per-day CMP ($3,050-$10,000).  42 C.F.R. §§ 488.408(e)(1)(iii), 488.438(a)(1)(i).9   Considering the relevant factors, the penalty is reasonable.

The facility has a history of substantial noncompliance.  Notably, just a few months before this incident, it was cited for E-level (pattern of substantial noncompliance that causes no actual harm with the potential for more than minimal harm) deficiencies under section 483.75.  CMS Ex. 3 at 6.

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

Applying the remaining factors, I have discussed in some detail the facility’s multiple failures here.  The facility had no procedures in place for monitoring residents who left the facility for outside appointments and ensuring their safe return.  For reasons never satisfactorily explained, its van driver simply abandoned a frail resident in the back of his van, causing her significant distress and endangering her health and safety.  Management failed to report timely the incident to the state agency, and the facility conducted a belated and inadequate investigation, disregarding the policies it had in place to protect residents.

The facility is culpable for all of these very serious failings.

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

4. CMS’s determinations as to the duration of the facility’s substantial noncompliance and immediate jeopardy are consistent with statutory and regulatory requirements.

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Finally, Petitioner suggests that the duration of the penalty is unfair, arguing that all potential harm to residents was eliminated on May 9, when the facility terminated the van driver’s employment, or, at the latest, on May 12, when the facility trained its remaining drivers.  P. Response at 19.

Once a facility has been found to be out of substantial compliance (as Petitioner was here), it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.  Ridgecrest Healthcare Ctr., DAB No. 2493 at 2-3 (2013); Taos Living Ctr., DAB No. 2293 at 20 (2009); Premier Living & Rehab Ctr., DAB No. 2146 at 3 (2008); Lake City Extended Care, DAB No. 1658 at 12-15 (1998).  The burden is on the facility to prove that it is back in compliance, not on CMS to prove that deficiencies continued to exist.  Asbury Care Ctr., DAB No. 1815 at 19-20.

The facility must show that the incidents of noncompliance have ceased and that it has implemented appropriate measures to ensure that similar incidents will not recur.  Libertywood Nursing Ctr., DAB No. 2433 at 15, citing Life Care Ctr. of Elizabethton, DAB No. 2356 at 16 (2011); accord, 42 C.F.R. § 488.456(a) and (e); Hermina Traeye Memorial Nursing Home, DAB No. 1810 at 12 (2002) (holding that, to be found in substantial compliance earlier than the date of the resurvey, the facility must supply documentation “acceptable to CMS” showing that it was in substantial compliance and was capable of remaining in substantial compliance on the earlier date); Cross Creek Care Ctr., DAB No. 1665 (1998).  A facility’s return to substantial compliance usually must be established through a resurvey.  42 C.F.R. § 488.454(a); Ridgecrest, DAB No. 2493 at 2-3.

Similarly, CMS’s determination that a facility’s ongoing noncompliance remains at the level of immediate jeopardy during a given period “is subject to the clearly erroneous standard of review under [42 C.F.R. §] 498.60(c)(2).”  Life Care of Elizabethton, DAB No. 2367 at 16, quoting Brian Ctr., DAB No. 2336 at 7-8 (2010).  Further, if CMS accepts a deficient facility’s plan of correction, the facility must then timely implement all of the steps that it identified in the plan as necessary to correct the cited problems.  Cal Turner Extended Care Pavilion, DAB No. 2030 at 19 (2006); see also Meridian Nursing Ctr., DAB No. 2265 (2009); Lake Mary Health Care, DAB No. 2081 at 29 (2007).

The facility itself set May 28, 2016, as the completion date for correcting its deficiencies.  CMS Ex. 17 at 2.

Moreover, Petitioner’s problems were not limited to one bad employee.  And telling staff not to abandon residents was not sufficient to ensure that residents would be safe.  CMS is correct that where, as here, the facility’s policies have proven inadequate to prevent serious neglect, the facility needed to review its policies and procedures and amend them to ensure that no other resident would be lost or forgotten.  Staff then had to be trained to

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follow those procedures, and management had to ensure that they were followed and that they were effective in keeping residents safe.

The facility has thus not met its burden of establishing that it alleviated the immediate jeopardy nor that it returned to substantial compliance any earlier than May 28, 2016.

Conclusion

From May 7 through 27, 2016, the facility was not in substantial compliance with Medicare program requirements, and its deficiencies posed immediate jeopardy to resident health and safety.  The penalty imposed – $7,050 per day – is reasonable.

1. Since the time of the investigation, CMS has amended its regulations governing nursing facility participation in the Medicare program. 81 Fed. Reg. 68,688 (Oct. 4, 2016). I apply the prior regulations because they were in effect at the time of the investigation.
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2. I refer here to Petitioner’s second motion for summary judgment.
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3. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
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4. Petitioner points to this policy as evidence that its drivers were trained to escort residents safely back to the facility. But nothing in the policy prevented R1’s abandonment nor assured that staff knew of her whereabouts. I therefore don’t see it as particularly relevant here.
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5. In her first progress note, entered at the time of the incident, the nurse did not mention reporting the incident to the DON. However, she subsequently edited the note, stating “more data available.” CMS Ex. 8 at 17. In the edited note, she adds “DON notified.” CMS Ex. 8 at 16.
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6. In fact, the record shows at least one other serious breach by this van driver. Months before this incident, he violated the facility’s policies because he took a facility vehicle “for his personal use” and hit a telephone pole, “causing damage.” Because of the need to repair that damage, the facility could not transport some residents to their appointments. CMS Ex. 12 at 7.
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7. I am not, however, required to accept the truth of LVN Williams’s underlying facts statement in order to grant summary judgment. To avoid summary judgment, the non-moving party must submit admissible evidence of a dispute concerning a material fact, and I question whether the statement is admissible to establish its underlying truth. Ill. Knights Templar, DAB No. 2274 at 4. The regulations give me broad authority to determine the admissibility of evidence, and I may decline to admit evidence that is inherently unreliable. 42 C.F.R. § 498.61. Although the federal rules of evidence do not strictly apply in these proceedings, they provide guidance for determining whether evidence is reliable. Under an exception to the hearsay rule (Fed. R. Evid. 802), the Statement of Deficiencies would be admissible (Fed. R. Evid. 803(8)), and some of its contents would not even be considered hearsay. See Fed. R. Evid. 801(d). Had LVN Williams been listed as a witness, subject to cross-examination, her statements to the surveyor would be admissible to prove the truth of the matter she asserted. Fed. R. Evid. 801(d)(1). But she is not a witness, and, under the rules, I could determine that her hearsay statement is inherently unreliable and decline to admit it for the purpose of establishing its underlying truth.
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8. It seems that the facility spoke to all three at the same time, which also violates the policy requiring that each witness be interviewed separately and in a private location. CMS Ex. 13 at 1.
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9. Effective August 1, 2016, the CMP amounts increased. See 45 C.F.R. § 102.3. I apply the amounts that were in effect at the time CMS imposed the penalty.
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