Stonegates, DAB CR5726 (2020)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a per-instance civil money penalty of $17,005 against Petitioner, Stonegates, a skilled nursing facility.

I.  Background

I received this case recently as a transfer from the docket of another administrative law judge.  The record is complete.  An in-person hearing is unnecessary because neither party requested witness cross-examination.  I decide the case based on the parties’ written exchanges consisting of briefs and exhibits.1

CMS filed 17 exhibits that it identified as CMS Ex. 1-CMS Ex. 17.  Petitioner filed 14 exhibits, identified as P. Ex. 1-P. Ex. 14.  I receive these exhibits into the record.

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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, if so, whether CMS’s remedy determination is reasonable.

B. Findings of Fact and Conclusions of Law

CMS asserts that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(d)(1) and (2).  This regulation mandates that a skilled nursing facility ensure that its resident environment remain free from accident hazards and that the facility provide its residents with the supervision and assistance devices necessary to prevent them from sustaining accidents.

The regulation has been applied in innumerable cases.  Although not imposing a standard of strict liability for resident accidents against a facility, it orders the facility to take all reasonable measures to protect its residents from sustaining foreseeable accidents.  Glenoaks Nursing Ctr., DAB No. 2522 at 8 (2013).  The regulation requires a facility both to assess its premises for the possibility of accident hazards and to assess each resident in order to determine that resident’s particular vulnerabilities and needs.  The facility must do more than just determine what risks are present; it must take affirmative measures to ensure, to the extent reasonable, that those risks are addressed and minimized.

This case involves the care that Petitioner provided to two of its residents, identified as Residents 5 and 15.  Both of these residents were elderly, infirm individuals who suffered from dementia, among other things.  Petitioner’s staff assessed both residents as being at risk for falls.  Both residents fell (Resident 5 fell many times) and sustained serious injuries.  I find that Petitioner failed to take all reasonable measures to protect these residents from sustaining accidents.  In other words, the two residents sustained avoidable falls and Petitioner is culpable for those falls.

Resident 5 began living at Petitioner’s facility on October 27, 2017.  CMS Ex. 1 at 31.  She was 95 years old.  CMS Ex. 10 at 1.  She transferred into the facility from a related independent facility operated by Petitioner.  She had become too infirm to live independently.  Her diagnoses on admission included unspecified dementia, an abnormal gait and mobility problems, and a history of falls.  CMS Ex. 1 at 31-32.  A plan of care for Resident 5 notes that the resident had impaired cognitive functioning, dementia, and impaired thought processes.  CMS Ex. 10 at 6-7.  It notes further that the resident suffered from confusion.  Id.

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Petitioner’s staff knew that the resident was in great danger of falling.  It would have been impossible for the staff not to be aware of that risk because the resident sustained 13 falls between the date of her admission and April 11, 2018.  She fell in a variety of circumstances.  She fell from a chair in her room.  CMS Ex. 8 at 22-25.  She fell from her bed.  Id. at 26-30.  The resident fell while in Petitioner’s activity room.  Id. at 40-44.  She sustained a fall in her room that may have been caused by her colliding or becoming entangled with a coffee table.  Id. at 5.  She sustained another fall in her room for unexplained reasons.  Id. at 1-4.  The resident fell from her wheelchair.  Id. at 31-35.

About half of the falls sustained by Resident 5 were from a couch in her room.  Petitioner’s staff had moved the couch there from the resident’s previous independent living residence in an effort to make the resident feel comfortable.  She preferred to sleep on the couch. 

The resident sustained at least six falls from her couch.  She fell from the couch on December 2 and 3, 2017, and on January 1, March 28, April 5, and April 11, 2018.  CMS Ex. 8 at 9-22, 36-39, 49, 54-59.  Resident 5 sustained a fractured femur from the April 11 fall that necessitated surgical repair.  CMS Ex. 9 at 22-23.

Petitioner’s staff was not indifferent to Resident 5’s predicament.  The staff implemented several interventions in response to some of the resident’s many falls.  After the November 19, 2017 fall, staff ordered a physical therapy evaluation for the resident and changed the times of day when she received medication.  CMS Ex. 8 at 1-4.  Petitioner’s staff removed the coffee table from the resident’s room after she fell on November 27, 2017.  Id. at 5, 8.  Subsequent to her December 3 fall, the staff apparently checked on the resident more frequently and encouraged her to use a “rollator” (rolling walker) when she ambulated.  Id. at 17.  Staff put pressure alarms on Resident 5’s bed and couch after the resident fell from the couch on January 1, 2018.  Id. at 18, 21.  After the resident sustained a fall from her wheelchair on March 13, staff equipped her with a clip alarm.  Id. at 31-35.  In response to the resident’s March 28, 2018 fall from her couch, staff determined to bring her more frequently to Petitioner’s nurse’s station so that the staff could observe her directly.  Id. at 39.

What the staff did not do at any time subsequent to Resident 5’s admission to Petitioner’s facility was make a thorough assessment of the environmental conditions that were contributing to the resident’s frequent falls.  The fact that the resident fell repeatedly from her couch should have been a red alert to the staff.  Over and over again, the resident fell from that couch, and yet, nothing in the record suggests that the staff considered it as a major and potentially insurmountable accident hazard.  It is true that the staff equipped the couch with an alarm in January 2018.  However, the resident continued to fall from the couch, and it should have been evident that the alarm was not enough.  The obvious hazard, one that the staff clearly never addressed, was that the resident was at risk so long

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as she slept unattended on her couch.  The staff should have considered either removing the couch or providing the resident with continuous supervision while she was on it.

The circumstances surrounding the fall that Resident 5 sustained on April 11, 2018, clearly illustrate the inadequacy of Petitioner’s interventions.  On that date, a nursing assistant positioned the resident on her couch with a fall alarm under the resident’s body.  CMS Ex. 8 at 58.  The nursing assistant monitored the resident from the doorway of the resident’s room, for a period of about 10 minutes, until the resident was asleep, then left the resident unattended.  The resident fell from her couch, sustaining a fractured femur, about 15 minutes after the nursing assistant stopped watching her.  Id.

This fall should have come as no surprise to Petitioner’s staff.  The staff equipped the couch with a pressure alarm after the resident fell on January 1, 2018.  The resident fell from her couch on two occasions between the January 1 and April 11 falls.  These falls should have made it absolutely clear to the staff that a pressure alarm was inadequate to protect the resident. 

Petitioner argues that the interventions that it provided (and did not provide) for Resident 5 are the product of its staff’s balancing the accident risks that the resident confronted with her right to make choices about the care she received and her living conditions.  Petitioner claims that it is obligated to respect all of its residents’ rights and choices – if a resident chooses not to accept proffered care, that is the resident’s right, even if that choice puts the resident at risk.  According to Petitioner, its staff did not remove the resident’s couch because the resident chose to have it in her room and because she preferred to sleep on it.  Petitioner argues that it was obligated to allow Resident 5 continued access to her couch despite the fact that the couch was an obvious hazard.

Residents have a right to refuse care, but that right is not absolute.  A facility must protect a resident against sustaining foreseeable accidents, even against a resident’s expressed wishes and especially when the resident is no longer cognitively intact.  Cf. Good Shepherd Home for the Aged, Inc., DAB No. 2858 at 20 (2018).

I might be persuaded by Petitioner’s argument that Resident 5 had the right to refuse care if the evidence established that the resident was given an assessment of the risks posed by her continued use of her couch and made an informed judgment to keep on sleeping on it despite those risks.  However, the record shows nothing of the kind.  It does not show that the staff ever discussed with the resident the option of removing the couch.  It certainly does not show that the resident made an informed judgment to retain her couch despite being aware of the risks that would be posed by that decision.

Even if the resident had adamantly demanded that she retain her couch after having discussed it with staff – something that the record does not evidence – that would not end Petitioner’s obligation to the resident.  Petitioner’s assessment of the resident

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demonstrates that she could not make an informed judgment.  She was demented, cognitively impaired, and confused.  The assessment found explicitly that Resident 5 “overestimates or forgets limits.”  CMS Ex. 10 at 13.

Skilled nursing facilities aren’t merely apartments or group residences.  Individuals reside there because they are incapable of caring for their own needs.  The very essence of skilled nursing care is to provide to individuals what they can no longer provide for themselves.  In addressing the needs of a frail, demented, 95-year-old individual such as Resident 5, Petitioner had to balance the preferences expressed by the resident against the risks that she encountered, factoring in her condition and her ability to make informed judgments.  Petitioner failed to do that.  Its staff either assumed that the resident could keep her couch because she wanted to, in the face of very obvious risks, or the staff simply failed to do the necessary assessment and analysis.  Either way, Petitioner failed to provide the resident with the protection mandated by regulations.

Resident 15 resided at Petitioner’s facility beginning in May 2015.  Her diagnoses included, among other things, dementia and major depression.  CMS Ex. 5 at 13. 

I conclude, based on an assessment made by Petitioner’s staff, that this resident was not only at risk for sustaining falls but that she was particularly vulnerable to falling when she attempted to rise to her feet from a seated position.  Resident 15’s vulnerability included a substantial risk of falling when she attempted to use the toilet. 

Resident 15 was at a very high risk for sustaining falls, a risk that Petitioner’s staff was well aware of.  CMS Ex. 7at 21-22.  A staff assessment of the resident’s risk for falling found that the resident required extensive assistance and “one person physical assist” when using the toilet.  Id. at 12.  That assessment found explicitly that, in moving from a seated to a standing position, Resident 15 was “not steady, only able to stabilize with staff assistance.”  Id. at 13. 

The resident sustained a fall from her toilet on February 14, 2018, fracturing her pelvis as a consequence.  CMS Ex. 5 at 2-7.  On that occasion a nursing assistant left Resident 15 alone, sitting on the toilet, in order to perform other duties at Petitioner’s facility.  Id.  After she had left the resident alone, the nursing assistant saw that the resident’s call light was on.  She returned to Resident 15’s room and found the resident lying on the floor and complaining of extreme pain.  Id.

The evidence establishes a clear failure by Petitioner’s staff to protect Resident 15.  The staff knew that the resident was at a high risk for sustaining falls.  Staff knew that the resident was especially vulnerable to falling when attempting to rise from a seated position.  Despite that, staff left the resident alone while she was seated on the toilet.  The resident fell because she was unattended and because staff failed to provide her with the assistance that the staff knew that she needed.

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Petitioner makes two arguments in its defense.  I find these to be without merit.

First, Petitioner asserts that Resident 15 had a right to privacy and that staff complied with the resident’s wishes by allowing the resident to sit unattended on the toilet.  I reject this argument as I reject the identical argument made by Petitioner concerning the care that its staff gave to Resident 5.

Staff should not have left Resident 15 alone while seated on the toilet even if the resident explicitly demanded privacy without assessing the reasonableness of such a demand in light of the resident’s cognitive abilities.  Petitioner’s records establish that Resident 15 was a demented and severely depressed individual.  Had she expressed a desire for privacy, Petitioner would have been obligated to assess the resident’s cognitive functioning and to have factored that into its staff’s response.  There is absolutely nothing in the record that shows that Petitioner’s staff made such an assessment. 

Petitioner depicts the choices that its staff faced as an either-or proposition.  Either a nursing assistant could stand in the resident’s bathroom, next to the resident, while she used the toilet, or the nursing assistant could leave Resident 15 unattended while she was seated on the toilet.  That is a patently false dichotomy. 

There were options available to the staff that would have, if the staff utilized them, respected the resident’s privacy while protecting her.  For example, a nursing assistant could have left the bathroom door slightly ajar, but sufficiently open to observe the resident, and could have stood immediately outside the bathroom while the resident sat on the toilet.  At a minimum, the nursing assistant could have remained in close proximity to the bathroom and in verbal contact with the resident while she used the toilet.  The bottom line is that there was absolutely no reason why Petitioner’s staff should have left the resident unprotected and vulnerable, given the resident’s risk of falling.

Petitioner’s second argument is equally meritless.  Petitioner asserts that its staff did not assess Resident 15 as needing physical assistance when she attempted to rise from a seated position on the toilet.  It contends that its staff’s finding that the resident needed “extensive assistance” meant only that the staff would provide the resident with peri-care after she finished using the toilet.  According to Petitioner:  “There was no indication that [Resident 15] was unsafe or unable to use the toilet privately after she was safely positioned on the toilet.”  Petitioner’s brief at 12. 

Petitioner’s records belie that argument.  Petitioner’s staff explicitly assessed the resident as being in peril when she attempted to move from a seated position to a standing position.  The staff found that when Resident 15 attempted to rise, she was not steady and

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was only able to stabilize herself with staff assistance.  CMS Ex. 7 at 13.2   That finding mandated that someone on Petitioner’s staff be in close proximity to Resident 15 when she attempted to rise from a seated position.  Staff knew that the resident needed physical assistance when she attempted to stand or be at grave risk for falling.  Leaving the resident unattended while seated on the toilet plainly was ruled out by the staff’s finding.

I find a per-instance civil money penalty of $17,005 to be authorized by law and reasonable.  The penalty amount is less than the maximum permitted by the regulations in effect as of the date that CMS determined to impose it.  42 C.F.R. § 488.438(a)(2), as adjusted annually pursuant to 45 C.F.R. Part 102.

The seriousness of Petitioner’s noncompliance provides ample support for the penalty amount.  42 C.F.R. §§ 488.438(f)(1)-(4); 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  Petitioner was derelict in providing care both to Resident 5 and Resident 15.  The failure to provide necessary care to each of these residents had extremely serious consequences.  In each case the resident fell and was gravely and very painfully injured. 

The care that Petitioner’s staff provided to Resident 5 obviously was inadequate. Petitioner’s staff failed to identify that inadequacy or to address it.  The staff allowed the resident to make unattended use of a couch despite the fact that she fell six times while lying on the couch and 13 times overall. 

Petitioner’s staff plainly failed to provide Resident 15 with care that the staff had identified as being necessary.  The staff abandoned the resident while she sat on her toilet, leaving her to her own devices and, as a consequence, she fell.

Petitioner argues that it has a good history of compliance with Medicare participation requirements and that this history should count in its favor.  However, even acknowledging Petitioner’s compliance history, the seriousness of Petitioner's noncompliance amply justifies the penalty amount.

1. CMS styled its pre-hearing brief as a “Pre-Hearing Brief and Motion for Summary Judgment.”  It subsequently clarified its intent by stating that it was not moving for summary judgment.
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2. In one document, Petitioner’s staff commented that Resident 15 was not steady but that she was able to move on and off the toilet without staff assistance.  See CMS Ex. 7 at 14.  I find this notation to be anomalous and not persuasive in light of the several findings of unsteadiness and fall risks made by Petitioner’s staff.
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