Hazel Hawkins Memorial Hospital DP SNF, DAB CR6025 (2022)

DECISION

Hazel Hawkins Memorial Hospital DP SNF (Petitioner or facility), a skilled nursing facility (SNF), failed to plan and implement effective fall prevention interventions for a resident (i.e., Resident 62) who had an elevated risk for and significant history of falls. Resident 62 fell at least 18 times at Petitioner’s facility in 2018, including one fall on November 26, 2018, in which she fractured her left hip, requiring inpatient hospitalization and surgery.

Based on the findings of a recertification survey by the California Department of Public Health (CDPH), the Centers for Medicare & Medicaid Services (CMS) concluded that Petitioner was not in substantial compliance with the Medicare participation requirements for SNFs at 42 C.F.R. § 483.25(d)(1), (2) (accident prevention) and imposed a $15,315 per-instance civil money penalty (CMP) on Petitioner.

Petitioner disputes that it was not in substantial compliance and argues that Resident 62’s falls were unavoidable. Petitioner asserts that it provided Resident 62 with adequate supervision and interventions to prevent accidents. Petitioner further argues that the CMP imposed was not reasonable.

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As explained below, I sustain CMS’s determination that Petitioner was not in substantial compliance with Medicare participation requirements because it failed to plan and implement effective fall prevention precautions for Resident 62, and did not add new or different precautions following each of her falls.  As a result, Petitioner did not ensure for Resident 62 an environment that remains as free from accidental hazards as is possible.  Further, I conclude that the CMP imposed in this matter is appropriate under relevant statutory and regulatory factors.

I. Legal Framework

The Medicare program “provides basic protection against the costs of . . . related post-hospital . . . care” for individuals over the age of 65 who are eligible for Social Security retirement benefits and for individuals under 65 who meet other criteria.  42 U.S.C. § 1395c.  Post-hospital care includes extended care services provided at an SNF. 42 U.S.C. §§ 1395f(a)(2)(B), 1395x(h)-(i).

For Medicare program purposes, an SNF is an institution that is primarily engaged in providing skilled nursing care and/or rehabilitation services for its residents but is not primarily engaged in the care and treatment of mental diseases. 42 U.S.C. §§ 1395x(j), 1395i-3(a)(1).  Because an SNF is a “provider of services” in the Medicare program, each SNF that participates in the program must file a provider agreement with the Secretary of Health and Human Services (Secretary).  42 U.S.C. §§ 1395cc(a), 1395x(u). 

In addition to complying with the terms of the provider agreement, a participating SNF must meet a variety of ongoing statutory requirements related to how it provides services, maintains the rights of its residents, and administers its facility.  42 U.S.C. § 1395i-3(a)(3), (b)-(d). Further, SNFs must comply with “such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.” 1 42 U.S.C. § 1395i-3(d)(4)(B); see 42 U.S.C. § 1395i-3(c)(1)(xi), (f).  The Secretary promulgated regulations to establish those additional requirements. See 42 C.F.R. pt. 483, subpt. B.2

When an SNF fails to meet a statutory or regulatory participation requirement, then the SNF has a “deficiency.” 42 C.F.R. § 488.301; see 42 U.S.C. § 1395i-3(h)(1).

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“Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301.  To maintain “substantial compliance,” an SNF’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.

Broadly, noncompliance that subjects an SNF to enforcement remedies is divided into two levels. One level is comprised of deficiencies that immediately jeopardize the health or safety of residents and the other level is composed of deficiencies that do not.  42 U.S.C. § 1395i-3(h)(1).  “Immediate jeopardy” exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.

The Secretary has the duty to enforce the statutory and regulatory participation requirements for SNFs. 42 U.S.C. § 1395i-3(f)(1).  To do so, the Secretary contracts with state agencies to conduct surveys to determine whether SNFs are in substantial compliance. 42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10.  Standard surveys are unannounced and occur at least once every 15 months. 42 U.S.C. § 1395i-3(g)(2)(A)(i), (iii)(I). State agencies also conduct investigations into complaints against SNFs. 42 U.S.C. § 1395i-3(g)(1)(C), (4).  When the results of a survey show that an SNF is not in substantial compliance with program participation requirements, the Secretary may impose enforcement remedies on the SNF.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406. When CMS selects an enforcement remedy to impose on an SNF, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.3 See 42 C.F.R. § 488.404(a)-(b).

One such remedy is a CMP.  42 U.S.C. § 1395i-3(h)(2)(B)(ii). CMS may impose a per instance CMP for each instance of the SNF’s noncompliance or a per day CMP for the number of days an SNF is not in substantial compliance.  42 U.S.C.  § 1395i 3(h)(2)(A), (h)(2)(B)(ii)(I); 42 C.F.R. § 488.430(a).  For CMPs assessed on or after October 11, 2018, and for deficiencies that occurred after November 2, 2015, the

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CMP amounts may range as follows:  $2,140 to $21,393 for per-instance CMPs; $107 to $6,418 per day for less serious noncompliance; or $6,524 to $21,393 per day for noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3; 83 Fed. Reg. 51,369, 51,380 (Oct. 11, 2018); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments).  

If CMS imposes a CMP based on a finding of noncompliance, then the SNF may request a hearing before an administrative law judge (ALJ) to challenge CMS’s initial determination of noncompliance that led to the imposition of an enforcement remedy and/or the level of noncompliance (if a successful challenge to the level would affect the range of CMP amounts imposed on the SNF). 42 U.S.C. §§ 1320a-7a(c)(2), 1395i 3(h)(2)(B)(ii); 42 C.F.R. §§ 488.330(e)(3)(ii), 488.408(g)(1), 488.434(a)(2)(viii), 498.3(b)(13)-(14), (d)(10); see also 5 U.S.C. §§ 554, 556.  However, CMS’s choice of remedies is not reviewable. 42 C.F.R. §§ 488.438(e)(2), 488.408(g)(2), 498.3(b)(13).  

If an SNF challenges the existence of a deficiency, CMS must make a prima facie case that the SNF failed to substantially comply with federal participation requirements and, if such a showing is made, the SNF must then prove substantial compliance by a preponderance of the evidence. Hillman Rehabilitation Ctr., DAB No. 1611 at 8 (1997); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001). If an SNF challenges CMS’s determination as to the level of noncompliance, CMS’s determination must be upheld unless it is clearly erroneous. 42 C.F.R. § 498.60(c)(2).

If an ALJ concludes that there was a basis for imposing a CMP on an SNF, then the SNF may dispute the amount of the CMP.  The ALJ’s review of the CMP amount is limited to considering the statutory and regulatory factors for setting a CMP amount.  42 C.F.R. § 488.438(e)(3); see 42 U.S.C. §§ 1320a-7a(d), 1395i-3(h)(2)(B)(ii)(I); 42 C.F.R. § 488.438(f).  The ALJ may not reduce a CMP to zero.  42 C.F.R. § 488.438(e)(1).  

Either the SNF or CMS may request Departmental Appeals Board (DAB) review of an ALJ’s decision. 42 C.F.R. § 498.80.

II. Background and Procedural History

On April 18, 2019, CDPH completed a survey of Petitioner’s facility.  CDPH issued a Statement of Deficiencies in which it found that Petitioner was not in substantial compliance with several Medicare program requirements for SNFs.  CMS Ex. 1.  

In a May 6, 2019 initial determination, CMS informed Petitioner that it agreed with the survey results and that CMS was imposing a $15,315 per-instance CMP on Petitioner based on substantial noncompliance with 42 C.F.R. § 483.25(d)(1), (2) (Tag F689), at a

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scope and severity level “G,” signifying that the deficiency was isolated and involved actual harm, but not at a level that rose to immediate jeopardy.  CMS Ex. 8 at 2; CMS Ex. 1 at 16-21. CMS also notified the facility that it would impose a denial of payment for new admissions (DPNA) and, potentially, termination of the facility’s Medicare provider agreement.  CMS Ex. 8 at 2. However, CMS subsequently notified Petitioner that it would not implement the DPNA or termination.  CMS Ex. 9.  

Petitioner requested a hearing to dispute all of the deficiencies found during the April 18, 2019 survey. The Civil Remedies Division acknowledged receipt of the hearing request and issued my Standing Prehearing Order (SPO).  In compliance with the SPO, CMS submitted a prehearing exchange that included a prehearing brief as well as 11 proposed exhibits (CMS Exs. 1-11). CMS Exhibit 11 is the written direct testimony of its witness, CDPH surveyor Charina Camille Tuparan, R.N.  

Petitioner timely filed a prehearing exchange that included a prehearing brief as well as 8 proposed exhibits (P. Exs. 1-8).  Petitioner Exhibit 5 includes the written direct testimony of a witness (Petitioner’s Director of Nursing Sherry Hua, R.N.) as well as attachments to her written declaration. Petitioner also filed written statements from other individuals.  P. Exs. 1, 4, 6, 8. Petitioner also requested to cross-examine CMS’s witness.  

CMS filed a reply brief (CMS Reply), which included a motion for summary judgment, and objections to Petitioner’s written statements (P. Exs. 1, 4, 6, 8) on the grounds that the statements did not conform to the requirements for written direct testimony in the SPO.  CMS also requested to cross-examine Petitioner’s witness.

On July 8, 2021, I issued a Notice of Hearing (Notice) in which I denied CMS’s motion for summary judgment and scheduled a video teleconference hearing for September 28, 2021. In the Notice, I explained that I did not have jurisdiction to review any deficiency that did not serve as a basis for the CMP in this case and, therefore, the only deficiency I would review was the one cited under Tag F689, for Petitioner’s alleged noncompliance with 42 C.F.R. § 483.25(d)(1), (2). Notice at 2-3.  I also admitted CMS Exhibits 1 through 11 and Petitioner’s Exhibits 2-3, 5, and 7 into the record. Further, I noted that the admission of the written direct testimony from the parties’ witnesses (CMS Exhibit 11 and Petitioner Exhibit 5) was provisional until each witness was cross-examined or the request to cross-examine each witness was withdrawn. Finally, as explained in the Notice, I sustained CMS’s objections to Petitioner’s Exhibits 1, 4, 6, and 8, and excluded those exhibits from the record. Notice at 3-4.

On August 5, 2021, the parties jointly moved to withdraw their requests to cross-examine each other’s witnesses and requested that I render a decision on the written record.  I granted the motion on August 10, 2021.  CMS Exhibit 11 and Petitioner Exhibit 5 are fully admitted into the record, and I issue this decision based on the written record. 42 C.F.R. § 498.66.

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III. Issues

1) Whether Petitioner was in substantial compliance with the Medicare participation requirements at 42 C.F.R. § 483.25(d)(1), (2) (Tag F-689).

2) If Petitioner was not in substantial compliance, whether the $15,315 per-instance CMP imposed on Petitioner is appropriate under the factors in 42 U.S.C. § 1320a-7a(d) and 42 C.F.R. § 488.438(f).

IV. Findings of Fact and Conclusions of Law

My findings of fact and conclusions of law are in bold and italics.

1. Resident 62 was a resident at Petitioner’s facility starting in 2015.  Resident 62 entered the facility with diagnoses that included dementia and a history of falls.  By October 2018, the facility assessed Resident 62 as having severe cognitive impairment.  Further, by October 2018, Resident 62 required extensive assistance (i.e., the assistance of another person) to transfer between surfaces and to toilet.  Resident 62 was not steady without support, and another individual was needed to provide her with weight-bearing support. Resident 62 also had urinary and bowel incontinence and was assessed as a high risk for falls.

Resident 62 was originally admitted to the facility on May 5, 2015, and had diagnoses including dementia, a history of repeated falls, osteoarthritis, osteoporosis, and cataracts. CMS Ex. 5 at 53, 55, 121.  Resident 62’s Minimum Data Set (“MDS”), dated October 31, 2018, identified diagnoses including non-Alzheimer’s dementia, arthritis, diabetes mellitus, pneumonia, hypertension, and cataracts.  CMS Ex. 5 at 26-27.  The MDS stated Resident 62 scored a 6 out of 15 in her Brief Interview for Mental Status (BIMS), which indicates that she suffered severe cognitive impairment.  CMS Ex. 5 at 7.  At the time of the October 31, 2018 MDS, Resident 62 was 80 years old.  See CMS Ex. 5 at 53.

Resident 62’s MDS functional status assessment indicated that she needed extensive assistance from at least one staff member to perform each of the enumerated activities of daily living (ADL), including transfers to and from her bed, chair, wheelchair, or a standing position, as well as locomotion, dressing, toileting, and personal hygiene.  CMS Ex. 5 at 15 (column 1 identifying Resident 62’s self-performance of each ADL performed during the MDS observation period as being at level “3,” signifying the ADL required “Extensive assistance” with “staff provid[ing] weight-bearing support,” and column 2 identifying the support provided by staff for each ADL performed during the MDS observation period at level “2,” signifying one person physical assistance).

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Resident 62 was totally dependent on staff for bathing, and was assessed as “[n]ot steady only able to stabilize with staff assistance” during surface to surface transfers, moving on and off toilet, and moving from seated to standing position.  CMS Ex. 5 at 16 (emphasis in original).  The MDS also showed an assessment that Resident 62 needed “Substantial/maximal assistance” for toileting (i.e., helper provides more than half of the effort to lift or hold resident’s trunk and limbs).  The MDS indicated that Resident 62 used a wheelchair and was not observed to walk.  CMS Ex. 5 at 15-16.  Resident 62’s October 31, 2018 MDS also identified that she had frequent urinary and bowel incontinence, though she was not on a urinary or bowel toileting program. CMS Ex. 5 at 24.  

From at least as early as 2016, Resident 62 was assessed to be at high risk for falls. CMS Ex. 5 at 61, 172-173, 119-120.  

2. From March 21, 2018 through November 26, 2018, Resident 62 fell at least 18 times while residing at Petitioner’s facility.  Prior to that, Resident 62 had a history of falls, including two falls in January 2018.

Petitioner’s “fall log” identifies that Resident 62 suffered at least 18 falls from March 21, 2018, to November 26, 2018.  CMS Ex. 5 at 101-06.  The fall log describes multiple injuries and, as a “new intervention,” the following measures, each taken after one of Resident 62’s falls (date of fall in parenthesis):  

• (March 21, 2018) Spouse will be educated in using call light when in [the facility and] resident needs assistance; Resident will be encourage[d] to use restroom prior to lying down;
• (March 22, 2018) Offered room change closer to nurses station but RP [Responsible Party, presumably Resident 62’s family member] declined; visual checks Q1HR [every one hour] while [Resident is] in room; 
• (March 29, 2018) Re-educate resident on safety awareness, BIMS = 10; PT referral aimed at improving balance, gait and strength;
• (March 31, 2018) Toileting after breakfast;
• (April 11, 2018) Resident to be toileted before and after all meals;

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• (April 15, 2018) Antibiotic treatment for UTI (the note also identifies an “injury” of “Redness right side of the head);
• (May 23, 2018) Encourage family [to make] more visits since resident’s husband [has] been hospitalized; Depakote [an anti-convulsant] was started on 5/29/2018 [as a] mood stabilizer per [her physician’s] Order
• (June 6, 2018) Medication reviewed and [her physician] discontinued Tramadol [prescription pain medication] due to possible side effects for increasing confusion and change of mood/mental [status] from medication;
• (June 24, 2018) Maintenance request completed [that same day]; Check autolock in wheelchair for functioning [every] shift on 06/25/18;
• (July 20, 2018) Staff to remind resident to call for assistance for transfers;
• (July 28, 2018) Staff to collect all meal tray[s] as soon as possible after meal (injury noted: “Hematoma occipital”); 
• (August 2, 2018) Family to visit during evening hours after dinner meal; 
• (August 26, 2018) Incident initially suspected to be a fall determined by Petitioner’s interdisciplinary team to not have been a fall based on Resident 62’s inability to have gotten up from the floor if she had suffered a fall; 
• (September 15, 2018) Add parallel bars to existing [restorative nurse assistant] program for strength; 
• (September 26, 2018) Offer to attend activit[ies] as much as possible; Educate resident not to get up unassisted;
• (October 10, 2018) Staff to offer to transfer resident when resident seated in the couch by the lobby;
• (October 16, 2018) Incident initially suspected to be a fall determined by Petitioner’s interdisciplinary team to not have

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been a fall based on Resident 62’s inability to have gotten up from the floor, as well as her husband’s inability to pick her up from the floor, if she had suffered a fall;

• (October 20, 2018) Educate daughter to call staff for assistance as needed; Injury noted as “bruise to left upper shoulder”;
• (November 16, 2018) Invite resident to group activity.  If resident prefers to sit alone in couch [in hallway] provide coloring book or resident choice of activity;
• (November 26, 2018) Sent to ER; changed room closer to nurse station and [responsible party] agreed at this time; Injury noted as “Left Hip Fracture diagnosed in ER.”

CMS Ex. 5 at 101-106, 174-187; P. Ex. 2.

Care plan notes also identify that Resident 62 fell on January 14 and 15, 2018. CMS Ex. 5 at 188-189.  

3. Petitioner’s staff recognized that Resident 62 was at a high risk of falls and designed her care plan to include some interventions aimed at reducing that risk.  However, despite Resident 62’s continued falls, Petitioner’s interventions were limited. 

Resident 62’s care plan identified, as a care focus area initiated on October 10, 2016, that she was at a “[h]igh risk for falls” due to gait and balance problems, psychoactive drug use, a history of falls, cognitive deficits, being “very forgetful due to [her diagnosis of] dementia,” “risky/non-compliance behavior and impaired mobility,” and her refusal or preference “not to use auto lock on [her wheelchair],” and noted that she would “over estimate[] her ability to self-transfer or ambulate without assistance.”  CMS Ex. 5 at 61.  On February 26, 2018, staff initiated, as a care plan goal, “[a]s much as possible to minimize fall incidents . . . while resident[’s] rights are respected and promoting resident striving for independence.”  CMS Ex. 5 at 61.  To reduce the hazard of falls, Resident 62’s care plan included the following interventions (with the date initiated in parenthesis):4

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• (October 10, 2016) Maintain room and pathways free of clutter, provide adequate lighting; remind resident to ask staff for assistance when needing something to be picked up from floor.  Educate the resident/family/caregivers about safety reminders and what to do if a fall occurs.  Instruct resident to use assistive device (wheelchair, walker) and keep within reach.  Keep resident’s call light and most frequently used items within reach. Encourage the resident to use the call light for assistance as needed.  The resident needs prompt responses to all requests for assistance (CMS Ex. 5 at 64, 86, 88)
• (November 10, 2016) Educate resident on safety awareness and to ask staff for assistance.  Educate the resident/family/caregiver about safety reminders and what to do if a fall occurs.  Adequate lighting and night light (CMS Ex. 5 at 63, 86);
• (December 14, 2016) Ensure resident wearing non ski[d] socks and non skid shoes.  Frequent visual checks. Instruct resident to call for assistance and report to staff for any fall incidence in timely manner. Offered autolock [presumably, for Resident 62’s wheelchair] but refused by family and resident, benefits and risks explained (CMS Ex. 5 at 63); 
• (January 3, 2017, also noted for May 8, 2017, and February 9, March 22, April 16, and September 17, 2018) Offered room change closer to nurse station for closer supervision but refused by resident and her family, with benefits and risks explained (CMS Ex. 5 at 91-92); 
• (April 7, 2017) Non-skid grips on the floor to prevent slipping (CMS Ex. 5 at 63);
• (July 6, 2017) Provide grabber to resident (CMS Ex. 5 at 92);
• (November 9, 2017) Educate resident on calling for assistance when needed (CMS Ex. 5 at 62-63, 88); 
• (February 9, 2018) Re-educate resident on safety awareness (CMS Ex. 5 at 64);

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• (March 12, 2018) Staff will closely supervise resident while in activity room.  Dycem placed on wheelchair, and encourage/instruct resident to call for assistance from staff when needed (CMS Ex. 5 at 62-63, 86);
• (March 21, 2018) Resident will be encouraged to use restroom prior to laying down (CMS Ex. 5 at 65);
• (March 29, 2018) Physical therapy referral aimed at improving balance, gait, and strength (CMS Ex. 5 at 85);
• (July 31, 2018) Staff to collect meal tray as soon as possible after meals  (CMS Ex. 5 at 93);
• (September 15, 2018, after a fall with no injury on that date) Continue frequent visual checks on patient and devices (CMS Ex. 5 at 96);
• (September 17, 2018) Continue to remind resident to use call light and call for help assistance as needed (CMS Ex. 5 at 96);
• (September 27, 2018) Educate resident not to get up on her own without assistance (CMS Ex. 5 at 61);
• (October 22, 2018) Educate resident’s daughter to inform staff of any fall incident which happened when assisting resident. Educate daughter to call staff for assistance as needed (CMS Ex. 5 at 61, 84-85); and
• (November 16, 2018) Continue to remind, re-educate resident not to transfer unassisted; continue to educate/instruct resident to ask staff for assistance as needed (CMS Ex. 5 at 61, 84).

A facility Interdisciplinary Post-Fall Review report, dated November 16, 2018, describes the root causes of the fall on that date as Resident 62’s “poor safety awareness,” noncompliance with safety measures, and “not asking for staff assistance when needed.”  CMS Ex. 5 at 171.  The note does not identify any new interventions to address these root causes; rather, staff would continue “frequent visual check[s]” and continue “to educate/instruct resident [62] to ask staff for assistance.” CMS Ex. 5 at 171.

The facility also completed a Morse Fall Scale assessment for Resident 62 on November 16, 2018, which indicates Resident 62 was at a high risk for falling.  CMS Ex. 5 at 172-173.  The assessment describes a “score” in the range of 24-44 as posing a “moderate

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risk” for falls, with a score of 45 or above signifying a “high risk for falling.”  CMS Ex. 5 at 173. Resident 62 was assessed at a score of 75. CMS Ex. 5 at 172-173.  Further, the assessment notes Resident 62 cannot walk unassisted, had a weak gait, and “[o]verstates or forgets’ her ambulation limitations. CMS Ex. 5 at 172-173.  

4. On November 26, 2018, Resident 62 fell in her room while attempting to use the toilet without assistance.  Facility staff found Resident 62 on the floor and had her transported to the hospital. Resident 62 was diagnosed with a displaced intertrochanteric fracture of her left hip requiring inpatient hospitalization and surgical repair.  

The facility conducted a Morse Fall Scale assessment of Resident 62, dated November 26, 2018, which identifies Resident 62 as having a score of “65” (i.e., the “high risk for falling” category). CMS Ex. 5 at 119-120. Also, on November 26, 2018, Resident 62 suffered her most serious fall and, as a result, broke her left hip.  A facility progress note describes that a facility Licensed Practical Nurse (LPN):

Heard someone shouting for help, immediately responded to resident [62’s] room. Found resident lying on the floor near the bathroom, with left leg lying over the right lower extremity. [Resident 62 complained] of severe pain to left leg, no redness, no swelling, no bruising to the area. Resident [was found] with her black shoes on and with non-skid socks . . . Resident’s [wheelchair] observed park[ed] near her bed. Instructed staff not to move resident until paramedics arrive.  [Resident 62 complained] of headache.  No bruising, no redness, no bump nor swelling to [her] head area.  No [complaints] of [nausea or vomiting] . . . Resident alert and responsive but unable to tell what happened when asked secondary to [her diagnosis] of dementia.  

CMS Ex. 5 at 83.  

A facility Fall Scene Investigation report adds that a Certified Nursing Assistant (CNA) who had been assisting another resident with showering and combing her hair heard a noise and yelling from Resident 62’s room and immediately responded.  CMS Ex. 5 at 109.  The report states, as an intervention to prevent future falls, that “staff [would] provide frequent visual checks.”  CMS Ex. 5 at 110.  

Resident 62 was transported to the emergency department of a local hospital and diagnosed with a displaced intertrochanteric fracture of her left hip.  CMS Ex. 5 at 66-67, 97.  Emergency room documentation describes Resident 62’s medical history of dementia, diabetes, hypertension, and frequent falls.  CMS Ex. 5 at 69.  On November 27,

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Resident 62 underwent surgery to stabilize her hip fracture.  CMS Ex. 5 at 75-77, 142-144.  On November 30, she was discharged from the hospital and returned to Petitioner’s facility.  CMS Ex. 5 at 54, 78-82, 147.

The facility’s Interdisciplinary Post-Fall Review documentation, dated November 26, 2018, the same day as the fall, describes the fall as unwitnessed and “[u]navoidable” due to Resident 62’s “poor safety awareness,” noncompliance with safety measures, “not asking for staff assistance when needed,” and “impulsivity.” CMS Ex. 5 at 97, 99, 112, 114.  The note further describes that Resident 62:

[H]as had frequent falls because she continues to try to transfer herself from her [wheelchair] to toilet and armchair in the hallway without asking for assistance.  She has balance deficits and problems motor planning due to dementia.  She needs min assistance to transfer safely.  Attempts by [physical therapy] in the past have failed to improve the safety of her transfers as she was reluctant to participate and uncooperative . . . .

All staff has been doing frequent rounding and visual checks [and] been working closely with family visits for comforting.  Family fully aware of resident’s high risk for fall and potential injuries.

CMS Ex. 5 at 99.

5. Resident 62 returned to the facility from the hospital on November 30, 2018.  From November 30, 2018, through the end of March 2019, Petitioner instituted several new interventions to ensure that Resident 62 did not fall.

When she returned to the facility on November 30, 2018, staff moved Resident 62 to a different room, closer to the nursing station, for “close observation.”  CMS Ex. 5 at 111, 115.  The facility also put in new fall prevention or mitigation interventions (date initiated in parenthesis) following Resident 62’s November 26, 2018 fall, including:

• (November 30, 2018) Resident moved to [a room] near to nursing station for close observation (CMS Ex. 5 at 93);
• (December 12, 2018) Place another bed mattress with egg crate foam on top to the right side of the bed when [Resident 62 is] in bed (CMS Ex. 5 at 92);
• (December 26, 2018) 1:1 [1 on 1] staff [supervision] from 1 p.m. – 9 p.m. when staffing permit[s] (CMS Ex. 5 at 62);

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• (January 14, 2019) Change a wedge cushion on tilt chair to prevent slid[ing] from [wheelchair] when she moves; Dycem [non-slip material] placed on the chair and wedge cushion; Encourage family to visit from 4 a.m. – 8 a.m. as much as possible and family agreed (CMS Ex. 5 at 61);
• (February 8, 2019) Educate 1:1 care staff to rearrange the break time before resident’s dinner time (CMS Ex. 5 at 62);
• (February 28, 2019) Anticipate and meet needs, resid[en]t is unable to use call light due to mentation, total care for ADL[s] (CMS Ex. 5 at 62);
• (March 15, 2019) Educated son to not leave resident unattended at any time, instructed to use the call light to call staff as needed if he wants to step out of the room (CMS Ex. 5 at 63);
• (March 19, 2019) Continue frequent rounds [every] 15-30 minutes; Encourage family to stay with resident during night time (CMS Ex. 5 at 62);
• (March 25, 2019) Mattress[es] on both side[s] of the bed when resident is in bed, if family here to do 1:1 then mattress only on 1 side of the bed (CMS Ex. 5 at 61);
• (March 29, 2019) Encourage[d] and arranged with family to come and help with 1:1 supervision (CMS Ex. 5 at 85).

The facility’s Order Summary Report indicates that on March 6, 2019, Resident 62’s physician directed staff to have upper half side rails up on Resident 62’s bed to help her with bed mobility.CMS Ex. 5 at 57.

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6. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2) (Tag F689) because it did not take all reasonable steps to provide the supervision and assistance necessary to prevent foreseeable accidents.  Despite Resident 62’s cognitive limitations and heightened fall risk, the interventions included in Resident 62’s care plan were relatively rudimentary, and some did not have a high probability of being effective, while the implementation of other precautions (e.g., regular checks on Resident 62) was not documented.  Moreover, despite numerous falls at the facility, Petitioner’s staff failed to plan and implement additional fall prevention interventions despite a clear need for Resident 62 to receive additional supervision and assistance.

The Social Security Act requires SNFs to “provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care.”  42 U.S.C. § 1395i-3(b)(2).  In furtherance of this mandate, the Secretary promulgated the general quality of care regulation at 42 C.F.R. § 483.25, which states that the SNF “must ensure that residents receive treatment and care in accordance with professional standards of practice,” based on a comprehensive resident assessment, a comprehensive care plan, and resident choice.  Subsection 483.25(d) imposes specific obligations on a facility related to accident hazards and accidents, as follows:5

The facility must ensure that ˗

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

Therefore, subsection 483.25(d)(1) requires that a facility address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or, where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  Maine Veterans’ Home - Scarborough, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care in section 483.25(h)(1)).  The provisions of section 483.25(d) “come into play when there are conditions in a

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facility that pose a known or foreseeable risk of accidental harm.”  Meridian Nursing Ctr., DAB No. 2265 at 10 (2009), aff’d sub. nom. Fal Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445 (7th Cir. 2010). Further, subsection 483.25(d)(2) requires that a facility 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.”  Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003) (facility must take “all reasonable precautions against residents’ accidents”), aff’g Woodstock Care Ctr., DAB No. 1726 (2000)). Facilities are given “the flexibility to choose the methods” they use to provide supervision or assistive devices to prevent accidents, so long as the chosen methods “constitute an ‘adequate’ level of supervision” for a particular resident’s needs. Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff’d sub. nom. Windsor Health Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005).

CMS contends that Petitioner was not in substantial compliance with the accident prevention requirements at 42 C.F.R. § 483.25(d)(1), (2) because the facility failed to create and implement a care plan to prevent Resident 62’s falls, despite knowing that she was a fall risk. CMS Br. at 6. More specifically, CMS contends that the facility did not document or monitor hourly checks of Resident 62, despite her care plan calling for such monitoring, and that Petitioner inappropriately relied on other interventions such as reminders to Resident 62 to call for assistance, which was not an effective intervention given her severe cognitive impairment and dementia diagnosis. CMS Br. at 8.

In support of these contentions, CMS relies, in part, on the written testimony of CDPH surveyor Charina Camille Tuparan, R.N.  CMS Ex. 11.  Ms. Tuparan testified about the lack of documentation showing that Petitioner’s staff frequently checked on Resident 62:

Facility interventions to Resident 62’s fall incidents included reeducating the resident to not transfer herself unassisted, educating her family to report falls, encouraging the family to supervise her, and continuing frequent rounds to monitor the resident.  However, during the survey, the facility did not provide my office with any documentation to demonstrate that one-hour checks were being conducted for Resident 62, as specified by her fall-intervention plans because the facility lacked an[y] such documentation.

CMS Ex. 11 ¶ 10.  Ms. Tuparan further testified that, due to the lack of documentation concerning staff frequently checking Resident 62, there is no evidence that such an intervention was effectuated:  

Given the absence of any facility records regarding the monitoring, it appears that the facility was not conducting

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frequent monitoring of Resident 62.  To ensure that staff members implemented a monitoring plan, the facility should have kept a written log that documented each round of monitoring.  This would keep the staff updated of Resident 62’s condition, document any of her patterns, and help ensure oversight that staff were following the care plan. Moreover, the facility’s staff should have monitored Resident 62 more closely to prevent Resident 62’s November 26, 2018 fall, and other similar falls.  One method how the facility could have achieved this would be move Resident 62 to a room closer to the nursing station and nursing staff, which I understand that the facility eventually implemented after the November 26, 2018 fall, where Resident 62 broke her hip. Another method would be to implement a plan of more frequent monitoring, such as half hour or 15-minute checks, logged in a written record.  Lastly, the facility could have implemented one-on-one monitoring of Resident 62, at least until the facility could develop another type of intervention to prevent against Resident 62’s falls.

CMS Ex. 11 ¶ 20.

Further, Ms. Tuparan testified that Petitioner’s reliance on reminders and reeducation for Resident 62 was misplaced and did not constitute new interventions to deal with Resident 62’s continued falls.

[Petitioner’s MDS coordinator] confirmed that there were no new interventions put in place for Resident 62’s falls on March 29, 2018; July 29, 2018; and September 26, 2018. Moreover, I reviewed the interventions proposed for these dates, which include reminders and reeducation of Resident 62 to use her call light.  [The facility’s] intervention plans continued to state that its staff would reeducate Resident 62 and remind her to use call lights for assistance. However, this plan of action was ineffective and poorly designed for preventing Resident 62’s falls, given her dementia and severe cognitive impairment. These plans were not new interventions, and constituted ineffective interventions that were inadequate for Resident 62’s particular healthcare needs as an elderly resident with severe memory impairment.

CMS Ex. 11 ¶ 12.

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Consistent with the testimony quoted above, CMS also asserts that facility staff failed to implement new interventions following Resident 62’s falls on March 29, July 20, and September 26, 2018.  CMS Br. at 12-13.  As an intervention, CMS posits that increased toileting assistance should have been provided. As testified to by Ms. Tuparan:  

The standard of care for a long-term care resident, such as Resident 62, who experiences difficulty going to the bathroom without assistance, due to cognitive and physical impairment, is to implement a scheduled toileting plan for such a resident, as a strategy to meet their individual toileting needs.  This involves determining a resident’s typical toileting habits according to specific times of day, such as the early morning, and scheduling facility staff to routinely assist and transfer residents according to their individualized habits.  This strategy could have reduced Resident 62’s attempts to toilet herself, despite her limitations, in reaction to her discomfort of having to go the bathroom.  This would reduce incidents, such as Resident 62’s fall on November 26, 2018, where she attempted to toilet herself without staff assistance.

CMS Ex. 11 ¶ 18.

CMS further points out that Petitioner did not follow its own policies when failing to provide increased toileting assistance. CMS asserts that Petitioner’s Bladder Training Policy (P. Ex. 5 at 8) for incontinent residents, such as Resident 62, states to “offer bedpan/urinal, or put on commode, or take to bathroom every two hours,” and “[i]f night incontinence is a problem, wake the resident every two hours during night as well.” CMS Reply at 6.  But, CMS contends, “there is no evidence that Petitioner followed this policy to offer toileting support to Resident 62 every two hour[s] including at night.  This is because the facility failed to follow its own policy and never implemented this intervention.” CMS Reply at 6-7 (citing Desert Lane Care Center, DAB No. 2287 at 10 (2009) for the proposition that “A facility’s failure to fully employ those measures as intended in its policies may thus be evidence that the facility failed to provide residents with the services required by specific subsections of section 483.25.”).  

Finally, CMS argues that Petitioner should have utilized a bed alarm.  CMS Br. at 12-13.  Ms. Tuparan testified that, although bed alarms “are not always the first choice for fall-related interventions,” the standard of care is to consider that option on a case-by-case basis, based on a particular resident’s specific needs, “such as a fall-risk resident with severe mental impairment and unpredictable behavior.” CMS Ex. 11 ¶ 19.

In response to CMS, Petitioner acknowledges that “Resident 62 did experience a number of falls during the time periods considered by the surveyors, including one that took place

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in the early morning of November 26, 2018, as a result of which she fractured her hip.”  P. Br. at 4. However, Petitioner asserts that it was in substantial compliance with Medicare program requirements associated with Tag F689 and that its “staff worked diligently as a team to anticipate and meet Resident 62’s needs, and to provide her with the level of supervision appropriate for her condition.”  P. Br. at 3-4.  

Petitioner submitted the written declaration of its witness, Sherry Hua, a registered nurse and the facility’s Director of Nursing.  P. Ex. 5.  Ms. Hua defended Petitioner’s efforts to continually reeducate and remind Resident 62 as to safety matters related to falls.  She testified that Resident 62’s:

BIMS score declined from 14 in late 2016, to 12 in late 2017, then 10 in early 2018, and began a more rapid decline starting midway through 2018. (A BIMS score of 0-7 indicates that a patient is severely cognitively impaired, while a score of 8-12 indicates moderate impairment.)  However, throughout 2018, even though her BIMS scores were low, Resident 62 maintained her ability to engage in conversations with staff and interdisciplinary team at the facility.  During those times prior to the November 26, 2018 incident, she was able to follow simple instructions, and made her needs known to staff such as washing, cleaning, shower, drinking water, hunger, pain, bathroom use.  She was also able to make simple decisions such as which clothes to wear on daily basis, selecting activities of her choice, choosing her meals, and arranging her personal items and bedding in her room.  When given reminders and reeducations regarding using the call light, she was able to understand and to respond by demonstrating use of her call light. Based on this experience and observation, I believe frequent and simple reminders and reeducation were appropriate interventions to reduce Resident 62’s fall risk from late March through late September 2018.

P. Ex. 5 ¶ 14.  

Petitioner also contends that “CMS offers inappropriate ideas about interventions that [the facility] might have implemented to suggest that its care was inadequate.”  P. Br. at 6-8.  For example, with respect to CMS’s contention that the facility should have used alarms to alert staff when Resident 62 would move or stand from her bed and wheelchair, Petitioner describes that Resident 62 was able to remove or evade those alarms when they had previously been installed and emphasizes that it stopped using alarms facility-wide in 2017 based on its assessment of industry trends and best practices.  P. Br. at 7; P. Ex. 5 ¶ 13.  Ms. Hua described that, although the facility had previously equipped alarms for

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Resident 62’s wheelchair and bed, these were subsequently removed “when [Petitioner] became a restraint and alarm-free facility; we generally have not used bed alarms since March 2017.  This policy change was based on evidence that bed alarms contribute to depression and isolation and inhibit sleeping, and generally have counterproductive effects for residents.”  P. Ex. 5 ¶ 13.  

With respect to CMS’s assertions that the facility should have, under its own policies, provided Resident 62 with additional toileting assistance, Petitioner contends Resident 62 was frequently incontinent without any improvement and, under the facility’s policies, she was not considered a candidate for the bladder training program.  P. Br. at 7.  Ms. Hua testified as follows concerning the facility’s bladder training policy:

At some point we attempted to retrain Resident 62 on bowel and bladder for her dignity and with the hopes that we could continue to help her develop consistent patterns to better care for her and maintain her functioning in a restraint-free environment. Resident 62 went through our bladder training program on three separate occasions, in January, May and July 2017.  The program did not result in any improvement, and Resident 62 remained frequently incontinent throughout 2018.  After three failed attempts at bladder training and continued frequent incontinency, a resident would not be considered an appropriate candidate for bladder training . . . This is why Resident 62 did not receive additional bladder training after July 2017.

P. Ex. 5 ¶ 11.

Ms. Hua also provided testimony as to Petitioner’s efforts, and sometimes inability, to provide new interventions. She stated that facility staff “carefully monitored Resident 62 and attempted to familiarize [themselves] with her preferences, tendencies and patterns as a means of further refining her care plan and to incorporate, as appropriate, new interventions to keep her safe, but to also assure her independence and functioning.”  P. Ex. 5 ¶ 9. Ms. Hua also testified as follows:

A key component of our efforts to implement appropriate new interventions while promoting residents’ independence is involving residents and their families in decision-making.  On occasion, this means we cannot introduce new interventions if they are rejected by a resident or their family.  For example, on several occasions, we proposed moving Resident 62 to a room that was closer to the nurse’s station, where we could engage in even more frequent visual monitoring.

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We counseled the family on the risks and the benefits associated with making this change or refusing it, and the family ultimately refused to make the change, so Resident 62 was not moved.

P. Ex. 5 ¶ 10.

As stated earlier in this decision, CMS need only provide a prima facie case that Petitioner failed to comply with 42 C.F.R. § 483.25(d)(1), (2), and then Petitioner is obligated to show that it was in substantial compliance.  In this case, CMS has more than met its burden. Resident 62 had a history of falls before entering the facility and then continued to fall at Petitioner’s facility. In 2018, when Resident 62 entered a period of significant cognitive decline, she regularly fell, culminating in a fall that resulted in a significant injury that required surgery.  There is no doubt that Resident 62’s falls were foreseeable, and Petitioner was obliged to take effective action to minimize the risk of falls to the extent possible. CMS has shown that Petitioner’s efforts to try new interventions, until after the November 26, 2018 fall, were limited and included a reliance on reeducation and reminders, both of which were proven ineffective by Resident 62’s continued falls.  Further, Petitioner provides no proof that it performed frequent checks on Resident 62 so that staff could assist Resident 62 with toileting rather than leaving Resident 62 to go to the bathroom on her own.

While Petitioner disputes some aspects of CMS’s case, including the interventions that Ms. Tuparan thought necessary, Petitioner did not explain why, even if offering toileting assistance every two hours was not clinically indicated, it did not offer increased toileting assistance to Resident 62 beyond assistance before and after meals, which likely would have amounted to only a few times per day.  See CMS Ex. 5 at 102 (new intervention to offer toileting assistance “before and after all meals” following an April 11, 2018 fall.).  And Petitioner did not specify what interventions it introduced to replace the alarms it removed in March 2017.  

Further, a fundamental problem in Petitioner’s case is that, even if I were to fully credit its rebuttals of the additional interventions CMS proposed, Petitioner would establish, at most, that CMS has offered poor suggestions, but would not demonstrate that the facility was in substantial compliance with program requirements.  Ultimately, to demonstrate that it was in substantial compliance with the requirements in 42 C.F.R. § 483.25(d)(1), (2), it is not sufficient for Petitioner to merely identify reasons (even valid ones) for why it did not implement certain additional interventions.  Rather, it is incumbent on Petitioner to show what affirmative steps it did take to provide the supervision and assistance necessary to prevent, to the extent possible, foreseeable accidents.  That is particularly important in a case, such as this one, where the resident in question had a significantly elevated risk of falls and had clinical conditions, including osteoporosis and poor motor function, that made any fall more perilous for her.  In this case, Petitioner has

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not shown that it planned for and implemented effective fall prevention measures and, moreover, has not shown that it monitored and enhanced the effectiveness of those measures it put in place even as Resident 62 continued to suffer fall after fall, month after month.  Indeed, Petitioner admits that it did not care plan to stop Resident 62 from having any falls, but care planned simply to reduce the number of falls Resident 62 would have.  P. Br. at 5-6.

Petitioner contends that “CMS fails to identify a single deficient practice.”  P. Br. at 4.  However, Ms. Tuparan testified that Petitioner provided no evidence during the survey of its efforts to monitor or conduct frequent visual checks of Resident 62.  CMS Ex. 11 ¶ 10; CMS Ex. 1 at 19.  Petitioner has not disputed the surveyor’s testimony on this point, and the record does not show that the facility documented its performance of that intervention, despite it being an integral part of Resident 62’s care plan.  See, e.g., CMS Ex. 5, P. Exs. 2 and 3; P. Br. at 9 (Petitioner conceding that frequent monitoring was not recorded in clinical records of a rounding log).

In its defense, Petitioner points to care plan interventions involving frequent reminders and reeducation and describes that its staff made the clinical determination that those interventions “were appropriate fall prevention interventions for Resident 62 in the context of her particular cognitive abilities and given the best practices for introducing fall prevention measures with dementia patients.”  P. Br. at 6-7 (emphasis in original).  While frequent reminders and reeducation would certainly not be inappropriate, it should have been clear that those interventions’ effectiveness would decrease with Resident 62’s cognitive ability.  See, e.g., Fal-Meridian, Inc., 604 F.3d at 451 (describing that “‘verbal cues’ addressed to a [cognitively impaired resident] . . . were ineffective and known by staff to be so.”). 

As quoted earlier, Ms. Hua’s testimony confirmed Resident 62’s declining cognitive abilities in 2018.  P. Ex. 5 ¶ 14.  However, in her testimony, Ms. Hua failed to specify that, by October 31, 2018, Resident 62’s BIMS score was 6 out of 15, which signifies that she suffered severe cognitive impairment.  CMS Ex. 5 at 7.  Consistent with this, the facility Interdisciplinary Post-Fall Review report, dated November 16, 2018, found that the root cause for the fall on that date was “[u]navoidable” because Resident 62 had “poor safety awareness and [was] non[-]compliant with safety, not asking for staff assistance when needed.”  CMS Ex. 5 at 171.  Despite Resident 62’s clear decline, the report identified no new interventions to address the root causes of the fall and, instead, only stated that staff would continue “frequent visual check[s]” and continue “to educate/instruct resident [62] to ask staff for assistance.” CMS Ex. 5 at 171; see also CMS Ex. 5 at 61-65, 84-96; P. Ex. 3.  Regardless as to whether the facility might reasonably have relied on verbal reminders and reeducation in crafting Resident 62’s initial care plan interventions in 2016, when her BIMS score was 14, it was patently unreasonable to continue that reliance after her cognition declined precipitously by 2018 and throughout that year.

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Further, Petitioner recognizes that “Resident 62’s condition declined over time” (P. Br. at 6-7) but does not explain with any specificity why it waited until after Petitioner returned to the facility on November 30, 2018, to add significant additional fall prevention measures to her care plan, or why it appears that it took until February 28, 2019, for Resident 62’s care plan to state that staff would “anticipate and meet [her] needs” since she was “una[b]le to use call light due to mentation, total care for ADL[s.]”  CMS Ex. 5 at 62. The additional measures included requiring staff to continue more frequent rounding with respect to Resident 62, engaging with her family to visit her more often, placing additional mattresses around her bed, or adding additional non-slip material to her chairs.  CMS Ex. 5 at 61-65, 84-96; P. Ex. 3. The facility offers no explanation as to why these interventions could not or should not have been implemented much earlier.

Further, Petitioner asserts, in a conclusory manner, that its “culture of visual monitoring and engagement with patients at high risk for falls provided such frequent checks that a one-on-one would have been superfluous.”  P. Br. at 8.  But Petitioner does not explain why it later instituted that intervention (i.e., one-on-one) after Resident 62’s November 26, 2018 fall if it were unnecessary. Further, as indicated above, Petitioner simply has no proof that its staff visually monitored Resident 62 frequently, and Resident 62’s continual falls seem to make it unlikely that such monitoring occurred.

Finally, with respect to the November 26, 2018 fall, Petitioner contends the fall was simply unforeseeable, unavoidable, and not the result of a deficient practice, because it took place at a time when Resident 62 was typically sleeping “and thus fell outside the behavioral patterns that would suggest to the Facility’s staff that Resident 62 was at risk of falling.”  P. Br. at 10.  In opposition to this, CMS bases its position on Petitioner’s failure to create and implement a care plan to prevent Resident 62 from falling and that this resulted in 25 falls “including on November 26, 2018, when she fell while attempting to toilet herself, unassisted, and broke her left hip.” CMS Br. at 6.

I agree with CMS that Petitioner’s noncompliance stems from its repeated failures to effectively plan and implement precautions to reduce the hazard of falls as much as possible. See Buena Vista Care Ctr., DAB No. 2498 at 15-16 (2013) (upholding a finding of non-compliance under 42 C.F.R. § 483.25(h) (i.e., the predecessor to § 483.25(d)) where a resident’s care plan did not reflect her supervision needs as noted in an MDS or other comprehensive assessment.).  While increased supervision and monitoring of Resident 62 may have been a useful intervention, Petitioner has no documentation to support that regular checks were made on Resident 62. Therefore, I cannot credit Petitioner with having taken that action.  Petitioner’s continued reliance on educating a resident with severe cognitive problems became increasingly unlikely to be effective.  As a result, Resident 62’s pattern of falls made it nearly inevitable and clearly foreseeable that she would one day have an accidental fall like the one she experienced

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on November 26, 2018.  Therefore, Petitioner was not in substantial compliance with the accident prevention requirements at 42 C.F.R. § 483.25(d).

7. The $15,315 per-instance CMP that CMS imposed is fully supported by the facts and law in this case.

In this case, CMS imposed a single per-instance CMP of $15,315 on Petitioner. CMS Ex. 8 at 2.  When determining whether a CMP amount is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f): 1) facility history of noncompliance; 2) facility financial condition; 3) factors specified in 42 C.F.R. § 488.404; and 4) facility culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i-3(h)(2)(B)(ii)(I). The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f)(4). The factors listed in 42 C.F.R. § 488.404 include: 1) scope and severity of the deficiency; 2) relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) facility prior history of noncompliance in general and specifically with reference to the cited deficiencies. See 42 U.S.C. §§ 1320a 7a(d)(1)-(3), 1395i-3(h)(2)(B)(ii)(I). 

The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2); 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2)-(3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008).  However, unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ will sustain it. Coquina Ctr., DAB No. 1860 (2002).

Apart from its arguments that CMS should not have imposed any CMP because Petitioner had been in substantial compliance with program requirements, Petitioner challenges the CMP amount as “disproportionate and unreasonable” and argues that “the CMP should be reduced.”  P. Br. at 12.  With regard to the regulatory factors listed in 42 C.F.R. § 488.438(f), Petitioner argues only that its “staff was actually in tune with Resident 62’s needs and did everything it could to prevent falls while respecting her dignity and promoting her quality of life.  This level of attention and care does not suggest culpability on [Petitioner’s] part, and the CMP should be reduced.” P. Br. at 12.

CMS, by contrast, argues that its penalty amount is reasonable based on Petitioner’s culpability, the seriousness of the deficiencies cited, Petitioner’s history of deficiencies, and the lack of evidence concerning Petitioner’s financial condition.  CMS Br. at 13-14.  Specifically, CMS asserts that Petitioner’s “failure to prevent Resident 62’s falls, including her fall on November 26, 2018, where she broke her left hip, demonstrates negligence on the part of the facility specifically regarding the facility’s failure to adequate supervise a resident and protect her against hazards.” CMS. Br. at 13.

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CMS contends “the repeated falls, without meaningful or effective interventions designed to meet Resident 62’s personalized care needs, demonstrate indifference and a disregard for the resident’s care and safety.”  CMS Br. at 13-14.  

Facility’s History of Non-Compliance:  Petitioner has a history of noncompliance from 2015 through 2018, but exclusively at scope and severity levels “D” and “E,” and not involving the accident prevention deficiency (currently Tag F689 and formerly Tag 323) at issue here. CMS Ex. 10 at 2-5. This history provides only minimal support for CMS’s CMP amount in this case.

Scope and Severity of Deficiencies and Relationship Between Deficiencies:  This case involves a deficiency in which Petitioner’s staff did not take adequate steps to minimize the risk of falls for a resident for whom that risk was particularly acute. Resident 62 was assessed as a very high fall risk, had dementia, poor motor skills, and osteoporosis, which made her not only more at risk of falls, but more at risk from falls. Despite Petitioner being aware of those risks, Resident 62 fell at least 18 times in a seven-month span at the facility and, as a result of one of the falls, fractured her left hip, requiring inpatient hospitalization and surgical repair.  This factor supports a substantial CMP amount.  

Culpability:  Petitioner has a high degree of culpability in this case. Petitioner consistently assessed Resident 62 as a high fall risk who required extensive staff assistance.  Resident 62 had significant cognitive impairment and an extensive history of falls, but Petitioner relied heavily upon verbal instructions to Resident 62 to request assistance from staff before ambulating. Petitioner was on notice that Resident 62 was unable to remember and follow these verbal instructions, and it was not reasonable for staff to rely on verbal reminders to Resident 62.

Petitioner also failed to document the implementation of hourly visual checks by staff on Resident 62. The failure to document such a critically important intervention means that I cannot consider those alleged checks to have been completed. Other measures Petitioner undertook, such as reviewing Resident 62’s medication with her physician, collecting her meal tray, toileting after meals, and adding physical therapy exercises, though appropriate, were fairly minor in light of Resident’s condition and very high propensity to fall. Moreover, Petitioner failed, until after the November 26, 2018 fall, to implement additional measures that were likely to significantly reduce the hazard of Resident 62’s falls. These failures indicate a lack of due care on the part of the facility’s staff to address and prevent Resident 62’s falls.  Petitioner’s culpability is thus sufficient to justify an even greater CMP amount than the amount CMS imposed in this case.  

Financial Condition of the Facility: Petitioner presents no evidence of its financial condition. Therefore, this is not a factor requiring further consideration.

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CMP Amount:  The range of per-instance CMPs available to CMS for this survey was $2,140 to $21,393.  45 C.F.R. § 102.3 (2019).  A per-instance CMP of $15,315 is significantly below the maximum amount that could have been imposed as a per instance CMP and is supported based on the factors considered above.  

V. Conclusion

For the reasons set forth above, I sustain CMS’s initial determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2) and that a $15,315 per instance CMP is fully supported by the relevant statutory and regulatory factors in this case.  
 

1. “It is the duty and responsibility of the Secretary to assure that requirements which govern the provision of care in skilled nursing facilities . . . are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public monies.” 42 U.S.C. § 1395i-3(f)(1).
• back to note 1
2. All citations to the Code of Federal Regulations are to the version in effect at the time of the survey unless otherwise indicated.
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3. CMS or the state agency designates the scope and severity level using a letter from A through L based on a scope and severity matrix published in the State Operations Manual, Ch. 7, § 7400.3.1 (Rev. 185, Eff. Nov. 16, 2018). Levels A, B, and C indicate a deficiency that presents no actual harm but has the potential for minimal harm, which means the facility technically remains in substantial compliance. 42 C.F.R. § 488.301. Levels D, E, and F indicate a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy. Levels G, H, and I indicate a deficiency that involves actual harm that does not amount to immediate jeopardy. Finally, levels J, K, and L indicate a deficiency that constitutes immediate jeopardy to resident health or safety.
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4. Staff furnished Resident 62 with a wander/elopement alarm, but not any other type of alarm (e.g., bed, chair, floor mat, or motion sensor). CMS Ex. 5 at 42. The facility had previously installed bed and chair alarms for Resident 62, but staff removed alarms in March 2017, based on their assessment of industry best practices. P. Ex. 3 at 5; P. Ex. 5 ¶¶ 12-13; P. Ex. 5 at 29-33.
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5. CMS revised part 483 regulations concerning SNF conditions of participation in 2016, including the quality of care regulation found at 42 C.F.R. § 483.25. 81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (Jul. 13, 2017) (technical corrections). The accident prevention regulation currently promulgated in 42 C.F.R. § 483.25(d) was formerly found in 42 C.F.R. § 483.25(h). In assessing compliance under section 483.25(d) in this case, I consider case decisions analyzing the former section 483.25(h).
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