Pine Brook Care Center, DAB CR5962 (2021)

DECISION

In this case, a difficult and volatile nursing home resident repeatedly threatened self-harm.  She surreptitiously acquired kitchen utensils, not particularly sharp ones, threatening to harm herself with them, and, occasionally, succeeding.  She also acquired razor blades, which were sharp, but had not used them.  Her self-inflicted injuries were, for the most part, superficial, and facility staff generally dismissed her actions as attention-seeking behavior.  But she was persistent and inflicted some real injuries.  I consider here whether the facility met its obligation to ensure that:  1) her environment remained as free of accident hazards as possible and 2) she received adequate supervision and assistive devices to prevent accidents.

Petitioner, Pine Brook Care Center, is a long-term care facility located in Englishtown, New Jersey, that participates in the Medicare program.  While investigating an unrelated complaint, a surveyor from the New Jersey State Department of Health, Office of Long Term Care (state agency) discovered that a facility resident had repeatedly obtained knives and other utensils, threatening to harm herself with them.  Occasionally, she managed to injure herself.  Based on the surveyor findings, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance

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with the “quality-of-care” regulation, 42 C.F.R. § 483.25(d), and imposed a per-instance civil money penalty (CMP) of $19,910.  Petitioner has appealed, and CMS moves for summary judgment.

For the reasons set forth below, I grant CMS’s motion.  The undisputed evidence establishes that the facility was not in substantial compliance with Medicare program requirements and that the penalty imposed is reasonable.1

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 conduct periodic surveys to determine whether skilled nursing facilities 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.  Facilities 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).

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In this case, a surveyor from the New Jersey State Department of Health, Office of Long Term Care (state agency) went to the facility on March 13-14, 2019, to investigate a complaint.  CMS Ex. 2 at 2, 3 (Slisz Decl. ¶¶ 3, 14).  Although she concluded that the original complaint was unsubstantiated, she found another problem at the facility.  Based on her findings, CMS determined that the facility was not in substantial compliance with one Medicare participation requirement:  42 C.F.R. § 483.25(d) (Tag F689 – quality of care:  accident prevention), cited at scope and severity level J (isolated instance of substantial noncompliance that poses immediate jeopardy to resident health and safety).  CMS Ex. 1 at 2; CMS Ex. 31.

Thereafter, CMS determined that the facility returned to substantial compliance on March 14, 2019.  CMS has imposed against the facility a per-instance penalty of $19,910.  CMS Ex. 31.

CMS has filed a pre-hearing brief and motion for summary judgment (CMS Br.), along with 33 exhibits (CMS Exs. 1-33).  Petitioner has submitted its own pre-hearing brief and opposition to summary judgment (P. Br.) with seven exhibits (P. Exs. 1-7).

Issues

I consider first whether summary judgment is appropriate.

On the merits the issues are:

• Was the facility in substantial compliance with 42 C.F.R. § 483.25(d); and
• If the facility was not in substantial compliance, is the penalty imposed – $19,910 per-instance – reasonable.

Immediate jeopardy.  I have no authority to review the immediate jeopardy determination.  I may review CMS’s scope and severity findings (which include immediate jeopardy) 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 a facility’s nurse aide training program.  42 C.F.R. §§ 498.3(b)(14), (d)(10); Madison Cty. Nursing Home, DAB No. 2895 at 16 (2018); NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7 (2014); Cedar Lake Nursing Home, DAB No. 2344 at 9 (2010); Heritage Park Rehab. and Nursing Ctr., DAB No. 2231 at 15-16 (2009); Evergreen Commons, DAB No. 2175 (2008); Aase Haugen Homes, Inc., DAB No. 2013 (2006).  Certain types of deficiencies, including quality-of-care, can lead to a finding of “substandard quality of care.”  The deficiency must be cited at one of the following scope-and-severity levels:  immediate jeopardy; a pattern of or widespread actual harm that is not immediate jeopardy; or widespread deficiencies with the potential for more than minimal harm.  42 C.F.R. § 488.301.

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For a per-instance penalty (as here), the regulations provide only one range (at the time this penalty was imposed, the range was from $2,140 to $21,393), so the level of noncompliance here does not affect the range of the CMP.  42 C.F.R. §§ 488.408(d), 488.438(a)(2); 45 C.F.R. § 102.3; 84 Fed. Reg. 59549 (Nov. 5, 2019).2

The facility apparently does not have a nurse aide training program.  See CMS Br. at 12 n.2.  Even if it did, an immediate jeopardy determination would not affect it.  Under the statute and regulations, the state agency cannot approve the program if CMS imposes a penalty of $10,697 or more.  The facility thus loses its approval without regard to the immediate jeopardy finding.  Act § 1819(f)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv); 84 Fed. Reg. at 59,559.

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, 477 U.S. at 322).  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 sub nom. W. Tex. LTC Partners, Inc. v. U.S. Dep’t of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 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.  Heritage House of Marshall Health & Rehab., DAB No. 3035 at 8 (2021); 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); see also 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 ; cf. Guardian, 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.”); see Green Valley Health Care & Rehab. Ctr., DAB No. 2947 at 8 (2019), quoting Johnson v. Perez, 823 F. 3d. 701, 705 (D.C. Cir. 2016) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”).

Summary judgment applied to administrative review in Medicare cases.  It is well-established that an administrative law judge is empowered to decide a case on summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).  Nevertheless, there seems to be some confusion about applying such well-founded principles of civil litigation to these proceedings, with some suggesting that doing so denies a party a fundamental right.  In one succinct observation, Judge Posner of the Seventh Circuit Court of Appeals effectively refuted that position:  “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (emphasis added).

In Fal-Meridian, the Seventh Circuit considered specifically the appropriateness of granting CMS summary judgment in a nursing home case involving (then) section 483.25(h) (now section 483.25(d)).3   The court sustained the administrative law judge’s granting summary judgment in CMS’s favor because the petitioner/nursing home did not

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tender “evidence that, if believed, would show that it had done everything possible (within the meaning of the regulation) to minimize the risks of an accident.”  Fal-Meridian, 604 F.3d at 451.

Finally, deciding a case on summary judgment does not mean that it is decided without a hearing.  In reviewing administrative appeals decided on summary judgment, courts describe the case as having been decided without an “oral hearing” or without an “evidentiary hearing.”  They recognize that, by considering the evidence and applying the law, the ALJ has granted the petitioner a hearing.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”).  Thus, granting summary judgment (or deciding a case on the written record) satisfies the hearing requirements of sections 205(b) and 1866(h) of the Act.

1. CMS is entitled to summary judgment because the facility did not tender evidence showing that it did everything possible (within the meaning of 42 C.F.R. § 483.25(d)) to minimize the risk that a vulnerable, albeit difficult, resident would experience accidents.4

Program requirement:  42 C.F.R. § 483.25(d) (Tag F689).  The statute mandates that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the 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)(2).  To this end, the “quality of care” regulation mandates, among other requirements, that the facility “ensure” that each resident’s environment remain as free of accident hazards as possible and that each resident receive adequate supervision and assistive devices to prevent accidents.  42 C.F.R. § 483.25(d).  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 sub nom. 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 that 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.  42 C.F.R. § 483.25(d); Briarwood, DAB No. 2115 at 5; Windsor Health

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Care Ctr., DAB No. 1902 at 5 (2003), aff’d sub nom. Windsor Health Care Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005).

The Board long ago resolved that “accidents” are events that can cause injury to residents and can be prevented by supervision.  Accidents thus include a resident’s self-harm.  The regulation’s emphasis is on ensuring that supervision is adequate to meet the specified goal – preventing accidents and keeping residents safe.  Woodstock Care Ctr., DAB No. 1726 at 21, 36 (2000).

Facility policy:  increased supervision.  The facility had in place a policy regarding increased supervision.  Its stated goal is “to provide appropriate staffing in all areas,” including nursing and dietary.  Staff hours and numbers are based on resident census, “acquities” (plural of acuity), and resident needs.  Among other instructions, the policy calls for a “more intense staffing ratio” if a resident’s needs require it.  If the facility is able, it implements 1:1 supervision until an interdisciplinary team deems it necessary to transfer the resident out for an evaluation or to transfer the resident to a more suitable facility.  CMS Ex. 15.

Facility policy:  reporting and investigating suicidal ideation.  The facility had a policy requiring that nursing staff and a psychiatrist assess a resident who exhibits “signs or verbiage about suicidal ideations.”  According to the policy, the causes “will be explored” and triggers for the behavior “will be monitored.”  If a resident shows signs or alleges suicidal ideation, the resident will be transferred “out to crisis” and “a determination will be made in the resident’s best interest.”  If a psychiatrist determines that the resident’s behavior is an attention-seeking modality, the resident “will be treated,” and “all interventions will be tried to keep the resident engaged.”  If the facility feels that it is unable to care for the resident, it may “deem it necessary” to transfer the resident.  If a resident “exhibits signs or verbiage” of suicidal ideation, the facility maintains the right to perform thorough room checks and to remove any device that might injure the resident.  Visitation might be limited if the facility determines that it jeopardizes the resident’s well-being or if the visitor “is escalating [the resident’s] negative behavior.”  CMS Ex. 16 (emphasis added).

Resident 4 (R4).  R4 was a 46-year-old woman, initially admitted to the facility on March 5, 2018, suffering from a variety of disorders, including an anxiety disorder, altered mental status, a nontraumatic chronic subdural hemorrhage, hemiplegia and hemiparesis following a cerebral vascular accident (stroke), schizoaffective disorder, bipolar type, and a conversion disorder with seizures or convulsions.  CMS Ex. 7; CMS Ex. 8 at 5; CMS Ex. 11 at 4.  She had suffered the stroke following removal of a brain tumor, resulting in paralysis, weakness, and contractures on the left side of her body, particularly her arm and hand.  CMS Ex. 2 at 4 (Slisz Decl. ¶ 16); CMS Ex. 8 at 1; CMS Ex. 19 at 1; CMS Ex. 22 at 15, 16, 19.

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Her medical records reflect a history of psychiatric hospitalizations and suicide attempts.  CMS Ex. 19 at 1.

According to her October 16, 2018 care plan, the resident “fabricat[ed] stories.”   CMS Ex. 8 at 5.  Her record also shows that she presented many other troublesome behaviors; the most serious involved her threats and efforts to harm herself.

R4’s self-inflicted injuries and threats to injure herself.  Although Petitioner objects to CMS’s characterization of the incidents as “cutting,” R4’s medical record repeatedly refers to her threatening to cut herself and – in the words of facility staff and the mental health professionals who assessed her behaviors – actually cutting herself, primarily using pilfered kitchen utensils:

February 9, 2019.  Progress notes report R4 trying to use a breakfast knife, stating that “she’s going to cut herself.”  Staff notified her physician, Dr. Alexander Goldberg, and her sister.  They sent a “dietary communication slip” instructing kitchen staff not to give her utensils.  CMS Ex. 10 at 1; see CMS Ex. 8 at 5 (“Observed attempting to cut her wrist . . . with a breakfast knife.”).  According to her care plan, she “was educated regarding [the] danger of using [a] knife and attempt of cutting herself.”  CMS Ex. 8 at 6, 8.  Two days later, R4 told the social worker that she was “just frustrated” and that she had no intention of harming herself.  CMS Ex. 10 at 1-2.

February 11, 2019.  But on the same day that she assured the social worker, a nurse aide reported seeing R4 with a knife three times.  The knife was taken away twice.  The third time, the nurse aide observed the resident “attempting to cut self (left hand).”  When a licensed practical nurse (LPN) entered R4’s room, the resident told her, “I just want to cut the freak off, it doesn’t do anything for me.”  The LPN saw no bruise, abrasion, or scratch marks.  Staff notified Neiza L. Prado, M.D., R4’s psychiatrist, who ordered that R4 be transferred to a hospital for psychiatric observation and evaluation.  CMS Ex. 10 at 2; P. Ex. 1 at 3 (Prado Decl. ¶¶ 11, 12).  R4 was subsequently admitted to CentraState Medical Center.  CMS Ex. 10 at 3; CMS Ex. 18; P. Ex. 1 at 3 (Prado Decl. ¶ 12).

Hospital staff initially assessed R4 as at risk “of suicide/danger to self” and put her on 15-minute checks.  CMS Ex. 19 at 4.  R4 told the attending physician there that she had attempted to cut her hand off because “she was frustrated with not being able to use [it].”  CMS Ex. 19 at 1.5   Based on the physician’s February 12 assessment, R4 was not then a suicide risk.  CMS Ex. 19 at 2.

R4 remained at the hospital from February 11 through 15 and was discharged with a diagnosis of anxiety.  CMS Ex. 14.

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February 18, 2019.  At 9:35 in the evening on February 18, a nurse aide entered the resident’s room and “noticed” her “attempting to cut herself with a butter knife.”  The nurse aide called the LPN, who took the knife away.  A few minutes later, R4 tried to cut herself, using a black plastic comb.  Again, her physician ordered her transferred to the emergency room.  CMS Ex. 10 at 3; CMS Ex. 11 at 6. 

A nurse’s note describes an abrasion on the resident’s left hand “that looks like a knife mark.”  CMS Ex. 12 at 2; see CMS Ex. 12 at 4 (“abrasion noted to left wrist”).  

Dr. Prado examined R4 on February 18.  She diagnosed schizoaffective disorder, major depressive disorder, and borderline personality disorder.  Although R4’s speech was dysfluent, her language skills were intact.  She displayed no apparent signs of hallucinations, delusions, bizarre behaviors, or other indicators of psychotic process.  Her associations were intact, thinking was logical; and thought content appeared appropriate.  Her memory was intact.  She asked for Benzodiazepines (tranquilizers), which the psychiatrist discouraged.  The psychiatrist continued her on Zyprexa (an antipsychotic) and Xanax (a tranquilizer) and added Prozac (an antidepressant) to her drug regimen.  CMS Ex. 11 at 5.

The following day, R4 was readmitted to the facility.  She told staff that she tried to cut herself because she wanted immediate assistance and assured them that she would not be harming herself again.  The facility resumed its hourly checks on her.  CMS Ex. 10 at 4; CMS Ex. 12 at 4.

CMS cites a couple of problems with the facility’s “hourly checks.”  First, the facility was unable to produce any protocols describing the requirements and procedures for hourly checks.  CMS Ex. 2 at 5 (Slisz Decl. ¶ 22).  Where a facility failed to show that it had developed and implemented a protocol to assure that an at-risk resident was properly supervised, the Departmental Appeals Board determined that it was not in substantial compliance with section 483.25 and that the deficiency posed immediate jeopardy to resident health and safety.  Golden Age Skilled Nursing & Rehab. Ctr., DAB No. 2026 (2006).

Second, the check sheet form shows that no one checked on R4 at 11:00 p.m. on February 19; the comment square is left blank.  CMS Ex. 13 at 1.

February 20, 2019.  On February 20, a physical therapist reported R4 “with a butter knife, attempting to cut self.”  CMS Ex. 12 at 6; see P. Ex. 3 at 9 (Krug Decl. ¶ 49) (indicating that the butter knife was metal).  No further injuries were noted to her left arm.  The resident said that she didn’t need the arm.  Staff took the knife away and notified Dr. Goldberg, who ordered her transferred to CentraState Medical Center for evaluation.  CMS Ex. 8 at 8; CMS Ex. 12 at 6.  She returned that evening.  No recommendations were made.  Staff were instructed to resume hourly checks and another

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dietary slip was sent to the kitchen for “no utensils to be used/sent with meals.”  CMS Ex. 10 at 4.

February 22, 2019.  At 8:45 a.m. on February 22, R4 was again found with a butter knife, “attempting to cut herself.”  Staff took the knife away.  CMS Ex. 10 at 5.  No record indicates that staff notified a physician or the facility’s medical director of the incident.  CMS Ex. 2 at 5 (Slisz Decl. ¶ 24).

February 23, 2019.  At around 7:15 p.m. on February 23, R4 reported that she had a table knife on her dresser.  She said that she had taken it from another resident’s tray.  Staff removed the knife.  The nurse called Nannette Asuncion, NP, a nurse practitioner associated with R4’s care, leaving a message.6   Nurse Practitioner Asuncion did not then return the call.  Staff called again and spoke to “Tanya,” who said she would let the nurse know.  CMS Ex. 10 at 6.

February 24, 2019.  According to R4’s progress notes, at 11:45 a.m., a staff member from physical therapy witnessed the resident twice asking another resident for the butter/table knife from her lunch tray.  CMS Ex. 10 at 6; CMS Ex. 12 at 6.  Staff redirected R4 back to her room and made sure she had nothing with which to harm herself.  R4 subsequently tried to remove a knife from the “food truck” in the hallway.  Staff sent her back to her room and called the nurse practitioner, leaving a message.  When the nurse practitioner called back, she suggested one-on-one supervision for the resident’s safety.  When the LPN replied that they were providing hourly supervision, the nurse practitioner asked to speak to a supervisor.  CMS Ex. 10 at 7.  Notwithstanding the nurse practitioner’s recommendation, the hourly monitoring continued.  CMS Ex. 10 at 8; see CMS Ex. 2 at 9 (Slisz Decl. ¶ 52); CMS Ex. 5 at 23.

At about this time, Dr. Prado determined that suicide precautions were called for.  Based on “further incidents that occurred between February 18th and 24th,” she recommended further psychiatric hospitalizations or crisis evaluations to rule out suicidal ideations.  P. Ex. 1 at 3 (Prado Decl. ¶ 15).  Facility records confirm that, at 11:45 a.m. on February 25, the facility social worker and Nurse Practitioner Asuncion approved the resident’s transfer to Buttonwood Behavioral Health Hospital.  CMS Ex. 10 at 8; CMS Exs. 21, 23.

Buttonwood records show that, when admitted, R4 had a scab on her left arm.  CMS Ex. 22 at 34.  She told staff that she wanted to cut herself.  CMS Ex. 23 at 1.  Buttonwood records also describe a long-standing history of mood instability, impulsivity, and self-

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injurious behavior.  CMS Ex. 22 at 2.  The hospital put her on 15-minute checks and described her as having “high risk patient issues requiring treatment/intervention.”  CMS Ex. 22 at 3-6, 27.

At discharge, R4’s condition was described as “improved” and her prognosis “fair.”  CMS Ex. 22 at 2, 33; CMS Exs. 24, 25.

R4 returned to the facility on March 1, 2019.  CMS Ex. 7; CMS Ex. 10 at 9.  According to the social worker’s note, R4 said that she had made a “motion to cut” herself in order to gain attention.  CMS Ex. 10 at 9. 

March 9, 2019.  On March 9, a nurse aide reported seeing R4 trying to cut herself using a spoon.  The nurse noted no bruise or open area.  Staff notified the nurse practitioner.  CMS Ex. 10 at 10.  R4’s care plan was amended to add “NO UTENSILS at all for all meals.”  CMS Ex. 8 at 6 (emphasis in original).

March 13, 2019.  On the morning of March 13, R4 managed to injure herself.  The resident stated that she had stolen a fork from a tray and hid it in her pillow.  She used it to hurt herself.  She said that she liked to hurt herself and “to control pain.”  The nurse described “redness” and “scratches” on her left forearm.  The resident was again sent for crisis evaluation.  CMS Ex. 8 at 6; CMS Ex. 10 at 12.

Surveyor Theresa Slisz arrived at the facility that day.  She noted that R4 had a cut on her arm that was approximately 20 mm long (just under an inch).  CMS Ex. 2 at 8 (Slisz Decl. ¶ 45); CMS Ex. 5 at 16.

While in R4’s room, Surveyor Slisz observed R4’s roommate eating with plastic cutlery.  R4 confirmed that she was able to obtain utensils from her roommate.  CMS Ex. 2 at 8 (Slisz Decl. ¶ 44); see CMS Ex. 5 at 15-16.  R4 told Surveyor Slisz that she had disposable razors hidden in her bedside drawer and that she intended to cut herself with the razors.  CMS Ex. 2 at 9 (Slisz Decl. ¶ 46).  Surveyor Slisz called a nurse aide into the room, who found the razors in R4’s drawer.  CMS Ex. 2 at 9 (Slisz Decl. ¶ 46).  Petitioner does not dispute that R4 had the razors. 

Section 483.25(d) requires the facility to remove hazardous objects from R4’s environment and, to the extent that staff could not do so, to provide her with adequate supervision to prevent her from injuring herself.  Everyone agrees that it was critically important that R4 not obtain utensils or other sharp objects.  P. Ex. 1 at 3 (Prado Decl. ¶ 13).  The problem was that the facility wasn’t doing a very good job of preventing R4 from obtaining utensils and even sharper objects, like razor blades.  The undisputed evidence establishes that she obtained them repeatedly.

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Because it failed to keep hazardous objects out of R4’s environment and failed to supervise her adequately to prevent her from obtaining them, the facility was not in substantial compliance with section 483.25. 

Petitioner’s arguments.  Petitioner relies heavily on the testimony of R4’s psychiatrist and its own nurse consultant.  Nurse Consultant Krug opines that R4’s situation “did not rise to the level of immediate jeopardy.”  P. Ex. 3 at 11 (Krug Decl. ¶ 57).7   Dr. Prado goes further and opines that the facility “did not fail to substantially comply with 42 C.F.R. § 483.25(d).”  P. Ex. 1 at 7 (Prado Decl. ¶ 37).  Notably, although the witnesses go into considerable detail describing R4’s possession of cutlery, neither witness comments on her having obtained razor blades and the increased risk those objects posed to her health and safety.  In fact, that R4 managed to obtain razor blades is a frightening development, particularly since no one seems to have known how she got them.  No one has claimed that she could safely possess them.

As noted above, I am not required to accept the conclusions proffered by Petitioner’s witnesses.  Nor must I accept their conclusions that the facility “took all reasonable steps necessary” to protect R4 from harm.  P. Ex. 3 at 4 (Krug Decl. ¶ 17); W. Tex. LTC Partners, DAB No. 2652 at 6-7 ; cf. Guardian, 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.”); see Green Valley Healthcare & Rehab. Ctr., DAB No. 2947 at 8 (2019) (quoting Johnson v. Perez, 823 F. 3d. 701, 705 (D.C. Cir. 2016) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”)).

The undisputed evidence does not support the witnesses’ conclusions.

Petitioner dismisses R4’s behaviors as “attention-seeking,” rather than suicidal and attempts to diminish the seriousness of her injuries and the dangers she posed to herself.  According to Petitioner’s witness, Nurse Consultant Toni Krug, R.N., “cut” is a clinical term.  Petitioner argues that R4 didn’t really cut herself, in the clinical sense:  breaking the skin, losing blood, and requiring medical attention.  P. Ex. 3 at 9 (Krug Decl. ¶ 46).  Although Petitioner concedes that R4 inflicted some actual harm on herself, it maintains that the harm was not “significan[t].”  P. Ex. 3 at 9 (Krug Decl ¶ 47); P. Br. at 3 (conceding that R4 “occasionally” scratched her arm).

That behaviors are “attention-seeking” does not make them safe.  No doubt, R4’s injuries could have been much worse, but the undisputed evidence establishes that, using some

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fairly innocuous utensils, she managed, on more than one occasion, to damage her skin.  On February 18, using a butter knife, she inflicted a “knife mark” and/or “abrasion” to her left hand and/or wrist.  CMS Ex. 12 at 2, 4.  When admitted to Buttonwood on February 24, she had a scab on her left arm.  CMS Ex. 22 at 34.  On March 13, using a fork, she inflicted “redness and scratches” on her left forearm.  CMS Ex. 8 at 5; CMS Ex. 10 at 12.  When Surveyor Slisz observed her on March 13, R4 had a 20 mm long cut on her arm.  CMS Ex. 2 at 8 (Slisz Decl. ¶ 45).  Although Petitioner’s witnesses opine that these were not serious injuries (see, e.g., P. Ex. 1 at 6 (Prado Decl. ¶ 32) and P. Ex. 3 at 9 (Krug Decl. ¶¶ 46, 47), they cannot dispute that these injuries occurred.

We can quibble about the technical definition of “cut.”  However, the parties agree that R4 was volatile and unreliable.  No reasonable person would conclude that she could safely possess kitchen utensils, much less razor blades.  Indeed, the undisputed evidence establishes that she could not.  According to Dr. Prado, following her February 18 examination of R4, she found no reasonable basis for instituting suicide precautions beyond those already instituted by the facility “to minimize the opportunities for [R4] to obtain utensils or other sharp objects.”  P. Ex. 1 at 3 (Prado Decl. ¶ 13) (emphasis added).  Thus, Dr. Prado recognized the critical importance of keeping sharp objects away from R4.  To the extent that she thought the facility was doing so, when it was not, I am not required to accept that unsupported conclusion.  Green Valley, DAB No. 2947 at 8; W. Tex. LTC Partners, DAB No. 2652 at 15 (holding that “unsupported speculation” does not even create a “metaphysical doubt,” much less raise a genuine dispute of material fact, as required to preclude summary judgment); Brightview, DAB No. 2132 at 10.

The facility has not tendered evidence showing that it did everything possible to minimize R4’s opportunities to obtain utensils or other sharp objects and thus to minimize the risks of an accident, as the regulation requires.  Fal-Meridian, 604 F.3d at 451.  Specifically,

• Although the facility claims to have supervised R4, its level of supervision was plainly inadequate. It imposed hourly checks, but no evidence establishes that it developed or implemented a protocol describing the requirements and procedures for implementing those checks.  CMS Ex. 2 at 5 (Slisz Decl. ¶ 22); see Golden Age Skilled Nursing & Rehab. Ctr., DAB No. 2026.
• It was immediately apparent that “hourly checks” were inadequate, since, notwithstanding the checks, R4 repeatedly obtained the contraband cutlery.  Yet, the facility did not change its plan, even to add some obvious interventions.  The facility did not, for example, increase its level of supervision at mealtimes, when R4 was most likely to pilfer the cutlery; nor did it count the utensils to ensure that the same number leaving the kitchen before meals were returned to the kitchen after meals.  And, knowing that she obtained utensils from her roommate, staff left

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• them alone in the room at mealtime and then did not make sure that all of the roommate’s utensils were accounted for.
• Staff did not search R4’s room for dangerous objects, even though they should have suspected that she had them, and facility policy authorized them to do so. CMS Ex. 16.
• On February 24, Nurse Practitioner Asuncion recommended that staff implement 1:1 supervision to assure the resident’s safety. Facility staff disregarded her instructions and continued the hourly checks.  CMS Ex. 10 at 7, 8.
• Staff did not consistently report incidents to R4’s physician. When R4 attempted to cut herself with a butter knife on February 22, staff did not immediately notify her physician.  CMS Ex. 2 at 5. 
• Staff prepared no incident reports and conducted no investigations. CMS Ex. 2 at 6, 7 (Slisz Decl. ¶¶ 26, 37, 38); CMS Ex. 5 at 12.  Nor did they report the incidents to the state agency.  CMS Ex. 2 at 7 (Slisz Decl. ¶ 38).  If a facility fails to investigate problematic episodes, it loses the opportunity to analyze and correct its problems.  See Century Care of Crystal Coast, DAB No. 2076 at 21-22 (2007).

CMS is thus entitled to summary judgment.  Petitioner has not tendered evidence showing that the facility did everything possible – within the meaning of the regulation – to minimize the risks of an accident.  

2. The undisputed evidence establishes that the penalty imposed is reasonable.

To determine whether a civil money penalty is 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 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 section 488.438(f) 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

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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).

The burden is on the facility to demonstrate that a reduction is necessary to make the CMP amount reasonable.  Heritage Plaza, DAB No. 2829 at 22 (2017).

Here, CMS imposes a per-instance penalty of $19,910, which is at the higher end of the range for per-instance penalties ($2,140 to $21,393).  42 C.F.R. §§ 488.408(d)(1)(iv), 488.438(a)(2); 45 C.F.R. § 102.3 (2017); 83 Fed. Reg. at 51,380.  But, considering what CMS might have imposed – a comparable per-day penalty for multiple days of substantial noncompliance – this penalty is extremely modest.  See Plum City Care Ctr., DAB No. 2272 at 18-19 (2009) (observing that even the maximum per-instance CMP can be “a modest penalty when compared to what CMS might have imposed.”).8

Applying the relevant factors here, the $19,910 per-instance penalty is reasonable.

CMS offers no evidence of the facility’s history.

Petitioner does not claim that its financial condition affects its ability to pay this relatively modest amount.

With respect to the remaining factors, Petitioner argues that R4 was not really harmed and was not likely to be harmed.  Indeed, according to Petitioner, the cited deficiency did not pose any risk to resident health and safety greater than the potential for causing minimal harm.  Therefore, the facility was in substantial compliance and should not be subject to any penalty.

As the above discussion establishes, the facility was not in substantial compliance with program requirements.  It did not take even reasonable steps – much less do everything possible – to minimize the risks of accidents.  That R4 did not injure herself more seriously was fortuitous.  However, the risk that she could do herself serious harm (particularly with the razor blades) was real.  Staff were aware of it.  Yet, they repeatedly left her unsupervised and made minimal efforts to prevent her from obtaining potentially dangerous implements.  For this, the facility is culpable.  The penalty imposed is modest, considering the seriousness of the deficiency.

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Conclusion

For all of these reasons, I grant CMS’s motion for summary judgment.  Petitioner did not tender evidence showing that it did everything possible (within the meaning of 42 C.F.R. § 483.25(d)) to minimize the risks of accidents.  The undisputed evidence establishes that it was not ensuring that R4’s environment remained as free of accident hazards as possible or that she received adequate supervision to prevent accidents.  The facility was therefore not in substantial compliance with 42 C.F.R. § 483.25(d).  The penalty imposed – $19,910 per-instance – is reasonable.

1. My initial order in this case directed the parties to exchange, as a proposed exhibit and in the form of an affidavit or written declaration, “the complete, written direct testimony of any proposed witness.”  Standing Order at 5 ¶ 8 (July 17, 2019).  If Petitioner wanted to cross-examine any of CMS’s witnesses, the order required it to file, “as part of its prehearing exchange, a separate document identifying the witness(es)” it wished to cross-examine.  Standing Order at 5 ¶ 9 (emphasis in original).  Petitioner did not do so and thus waived cross-examination of CMS’s sole witness.  CMS, on the other hand, has asked to cross-examine both of Petitioner’s witnesses, in the event I deny summary judgment.  Because I find that the standards are met, I decide this case on summary judgment, even though it seems that cross-examining Petitioner’s witnesses (and thus conducting an in-person hearing) would likely serve no purpose, and the case might also be decided on the written record, without considering whether the standards for summary judgment are met.  Certainly, had CMS waived cross-examination, I’d have decided the case based on the written record.
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2. Penalties are inflation-adjusted and change annually (more or less).  The amount is determined as of the date the penalty is assessed, in this case, on May 14, 2019.  CMS Ex. 31; see 83 Fed. Reg. 51,369 (Oct. 11, 2018).
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3. The regulations governing long-term care facilities have been revised since the Seventh Circuit issued its decision in Fal-Meridian.  The requirement that facilities minimize the risk of accidents is now found at section 483.25(d).  81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (July 13, 2017).  However, the substance of the “quality of care” requirements – which are also statutory – has not changed, so decisions that pre-date the regulatory changes remain valid.
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4. 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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5. Petitioner is correct that she would not have been capable of cutting off her hand with the kitchen knife.  But that doesn’t mean that she couldn’t have injured herself.
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6. Nurse Practitioner Asuncion worked for Optum, a third-party insurer that provides supportive nursing services for its beneficiaries, such as R4.  Nurse Practitioner Asuncion monitored and reviewed R4’s status and the quality of her care.  She recommended types of care and, with the facility’s acquiescence, wrote goals and orders.  CMS Ex. 2 at 9 (Slisz Decl. ¶ 51).
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7. She does not, however, claim that the facility complied with section 483.25(d).
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8. A per-day penalty could be as high as $21,393 per day, starting as early as February 9, 2019, and continuing through March 13.  83 Fed. Reg. at 51,380.  Even the minimum per-day penalty ($6,525) for this period would have exceeded the per instance penalty in just a few days.
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