Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Coquina Center, |
DATE: May 10, 2002 |
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Centers for Medicare & Medicaid
Services
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Docket No.C-99-613
Decision No. CR899 |
DECISION | |
DECISION I sustain the
determination of the Centers for Medicare and Medicaid Services (CMS)
(1) to impose a Civil Money Penalty (CMP) against Petitioner,
Coquina Center, for failure to comply substantially with federal requirements
governing participation of long term care facilities in Medicare and State
Medicaid programs. The CMP of $10,000.00 per day, from April 13, 1999
through April 21,1999, is based on a finding of immediate jeopardy. I.
Background This case came
before me pursuant to a request for hearing filed by Petitioner, Coquina
Center, on June 18, 1999, in accordance with section 1128A(c)(2) of the
Social Security Act (Act) and 42 C.F.R. �� 488.408(g), 498.40.
On April 20,
1999, CMS informed Petitioner that, based on a survey, conducted on April
14,1999, it was imposing selected remedies due to Petitioner's failure
to be in substantial compliance with the applicable federal participation
requirements for long term care facilities. CMS concurred with the State recommendation and imposed the following remedies:
CMS Ex.1. At the hearing,
CMS offered 55 exhibits identified as CMS Exs. 1 - 55. Petitioner offered
64 exhibits identified as P. Exs. 1 - 64. The parties' exhibits were admitted
into evidence without any objection. Subsequent
to the hearing, the parties submitted simultaneous post hearing briefs
(CMS Br. and P. Br.), as well as response briefs (CMS Response and P.
Response). Based on the
testimony offered at the hearing, the documentary evidence, the arguments
of the parties, and the applicable law and regulations, I find that from
April 14, 1999 through April 21,1999, Petitioner was not in substantial
compliance at the immediate jeopardy level. I further find that CMS was
authorized to impose a CMP against Petitioner at the rate of $10,000.00
per day from April 14, 1999 through April 21, 1999. II.
Applicable Law and Regulations Petitioner
is considered a long term care facility under the Act and regulations
promulgated by the Secretary of the Department of Health and Human Services
(Secretary). The statutory requirements for participation by a long term
care facility are found at sections 1819 and 1919 of the Act, and at 42
C.F.R. Part 483. Sections 1819
and 1919 of the Act invest the Secretary with authority to impose certain
remedies, including CMPs and denial of payment for new admissions, against
a long term care facility for failure to comply substantially with participation
requirements. Pursuant to
the Act, the Secretary has delegated to CMS and the States the authority
to impose remedies against a long term care facility that is not complying
substantially with federal participation requirements. 42 C.F.R. Part
483 provides that facilities which participate in Medicare may be surveyed
on behalf of CMS by State survey agencies in order to ascertain whether
the facilities are complying with participation requirements. 42 C.F.R
�� 488.10 - 488.28. The regulations contain special survey conditions
for long-term care facilities. 42 C.F.R. �� 488.300 - 488.335. Under Part
488, a State or CMS may impose a CMP against a long term care facility
where a State survey agency ascertains that the facility is not complying
substantially with participation requirements. 42 C.F.R. �� 488.406, 488.408,
488.430. The penalty may start accruing as early as the date that the
facility was first out of compliance until the date substantial compliance
is achieved or the provider agreement is terminated. The regulations
specify that a CMP that is imposed against a facility will fall into one
of two broad ranges of penalties. 42 C.F.R. �� 488.408, 488.438. The upper
range of civil money penalties, of from $3,050 per day to $10,000 per
day, is reserved for deficiencies that constitute immediate jeopardy to
a facility's residents, and in some circumstances, for repeated deficiencies.
42 C.F.R. � 488.438(a)(1) and (d)(2). The lower range of civil money penalties,
of from $50 per day to $3,000 per day, is reserved for deficiencies that
do not constitute immediate jeopardy, but either cause actual harm to
residents or cause no actual harm, but have the potential for causing
more than minimal harm. 42 C.F.R. � 488.438(a)(2). The regulations define the term "substantial compliance" to mean:
42 C.F.R. �
488.301. "Immediate jeopardy" is defined to mean:
Id. In determining the amount of the CMP, the following factors specified at 42 C.F.R. � 488.438(f) must be considered:
In a CMP case,
CMS must make a prima facie case that the facility has failed to comply
substantially with participation requirements. To prevail, a long term
care facility must overcome CMS's showing by a preponderance of the evidence.
Hillman Rehabilitation Center, DAB No. 1611 (1997). The Act and
regulations make a hearing before an Administrative Law Judge available
to a long term facility against whom CMS has determined to impose a CMP.
Act, section 1128A(c)(2); 42 C.F.R. �� 488.408(g), 498.3(b)(12), (13).
The hearing before an Administrative Law Judge is a de novo proceeding.
Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd 941 F.2d 678
(8th Cir. 1991). III.
Issues A. Whether
the facility was complying substantially with federal participation requirements
on the dates CMS determined to impose a CMP. B. Whether
CMS' determination of immediate jeopardy is clearly erroneous. C. Whether
the amount of the penalty imposed by CMS is reasonable, if noncompliance
is established. IV.
Findings and Discussion The findings
of fact and conclusions of law noted below in italics are followed by
a discussion of each finding.
The applicable regulation at 42 C.F.R � 483.25(h)(2), entitled "Quality of care," provides:
Surveyors findings
for 42 C.F.R. � 483.25(h)(2) Quality of Care, as reflected at Tag F324
of the Statement of Deficiencies. With regard
to Tag F324, the surveyors set forth their findings in a Statement of
Deficiencies. CMS Ex. 2. I repeat those findings immediately below. A review of
facility's clinical records revealed that on April 13, 1999, at approximately
4:20 p.m., Resident 1 was found in room 228 with his buttocks off the
seat of his chair with the body alarm in place and pulling at the neck
of the gown. The paramedics were called and he was determined to have
expired. An interview with the charge nurse revealed that the alarm device
was held to the resident's chair by pinning it to a blanket that was tied
around the back of the chair. The cord from the alarm was tied to the
upper part of the resident's gown. The alarm cord created a resistance
that prevented the resident from sliding to the floor. The alarm never
sounded as it was expected to do.
The initial care plan for the resident included the following approaches in response to his having fallen twice since admission:
The surveyors
concluded that the facility was using an inappropriate alarm device in
an attempt to prevent falls. They found the alarm to be an inexpensive
security alarm for use by the general public to be manually activated
in time of danger. The surveyors
also found that the facility had no instructions, policy or procedures
for the application, use, or maintenance of the alarm device. It was further
noted that Resident 1 had been found on the floor of his room on April
12, 1999, and the body alarm had not sounded. Discussion A facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents. A facility's duty of care pursuant to 42 C.F.R. � 483.25(h)(2) is not absolute. The measures undertaken by a facility for the protection of its residents, however, must be adequate. Regulatory agencies entrusted by law with the task of ensuring that long term care facilities comply with federal participation requirements do not impose specific measures for the protection of residents. For example, as Petitioner correctly points out, there is no regulation or standard of practice requiring the use of alarms to protect residents from accidents. P. Br. at 25, 26. The method of protection is a choice the facility must make. However, once a facility decides to deploy a certain device to protect and supervise residents, it is under an obligation to establish procedures for its proper maintenance and use. This, of course, encompasses the facility's duty to ascertain that any deployed device is in place and operational, that established policies and procedures are appropriately communicated to staff, and that personnel are effectively trained in the application of selected protective measures and devices. Consistent with this reasoning, I find no merit in Petitioner's argument that its facility was not on notice that the device it used to supervise its residents posed a risk. CMS does not have to inform a facility a priori whether a given intervention is appropriate. The facility must consider the benefits and risks associated with any intervention it decides to implement for the protection of its residents. See P. Br. at 3. In the case
at hand, the facility decided to employ a body alarm to assist in the
supervision of Resident 1. The interdisciplinary care plan team had determined
that the best way to care for this resident was to make a call light available
and within reach at all times while Resident 1 was in bed, provide assistance
with transfers from bed to wheelchair, maintain his room free of debris,
provide him with a low bed, and keep him within view when out bed with
the body alarm on. Tr. at 35; CMS Ex. 48 at 62. Pertinent to this is a
risk assessment of April 6, 1999, wherein it was noted that Resident 1
would frequently slide down in bed or chair. CMS Ex. 47 at 2. In order to
protect Resident 1 from accidents, Petitioner made use of an alarm device
that was described at the hearing as a "Pull Tab" personal alarm sold
under the trade name of Quorum. The alarm was held to the chair the resident
was sitting in by being pinned to a blanket tied around the back of the
chair. The cord from the alarm device was then attached to the front part
of the resident's gown. Tr. at 30. It was intended that if the resident
rose from his chair, he would pull on the cord connected to the alarm
box until its plug pulled out of the alarm jack, thus triggering a loud
noise that would alert staff. See P. Ex. 39 at 5. Ms. Nancy Jo
Smith, a State surveyor, testified that the alarm that was provided to
Resident 1 was a Radio Shack (4) product
designed for personal protection by individuals such as joggers in case
they were attacked. The device would be clipped to the jogger's belt while
running outdoors. If the jogger felt threatened, he or she would pull
on the cord and set off the alarm. Tr. at 33. The piercing sound was designed
to startle or deter thieves or attackers. P. Ex. 39. The manufacturer
warned not to activate the device within 12 inches of an individual's
ear since inner ear damage may result. P. Ex. 39 at 3. A demonstration
during the hearing revealed that in order for the cord to disconnect from
the alarm, the pulling action had to be directly away from the top of
the box. Thus, if the box were held in the upright position, the pulling
action had to be vertical. If the pulling force was exerted on an angle
or horizontally, the difficulty in triggering the alarm would range from
difficult to impossible. Tr. at 258, 259.
Given the design
and purpose of this personal attack alarm, it was unlikely that the resident
would be able to set it off by a forward sliding action. Since the device
was intended for intentional triggering by its user, it was inappropriate
to expect a facility resident to set off the alarm automatically by exiting
from his chair. The triggering mechanism would be set in motion only if
the resident were to stand at just the right angle. Moreover, it would
be even more difficult for the resident to trigger the alarm if he slid
from the chair as opposed to standing up. (5)
I find, therefore, that the Quorum personal attack alarm was inappropriately
used in a long term care facility setting. Petitioner disingenuously claims
that the Quorum alarm employed by its facility could also be used for
personal protection by joggers, when in fact it is the other way around.
The facility was employing a crime prevention alarm as a device with which
it could supervise its residents. P. Br. at 21.
An added gravamen
to Petitioner's use of an inappropriate device, is its failure to provide
staff with policies and procedures regarding the proper use of such device.
Tr. at 29. That is, no instructions were made available to staff that
would indicate the proper placement of the device in a manner that would
allow its tab to be disengaged when the resident attempted to exit from
his chair. Furthermore, the staff was not informed as to how to attach
the alarm to the resident without creating a strangulation hazard. Ms. Karen Barker Robbins, Vice President of Clinical Services of Petitioner's parent company, testified that the facility chose the personal attack alarm for the following reasons:
Tr. at 208,
209, 212.
The reasons
advanced by Ms. Robbins have no foundation. I see no ease in the application
of a crime prevention device that had to be attached to the rear of a
resident's chair and then pinned to his or her clothing at just the precise
angle so that the tab would disengage from the alarm if the resident attempted
to get up or were to fall from the chair. In this case, the difficulty
was magnified due to the absence of instructions on how to apply the device. The fact that
the alarm had no on/off switch is unconvincing, because the resident would
just as easily be able to defeat its purpose by removing the safety pin
that attached the pull strap to the chest area of the resident's clothing. Additionally,
the facility's goal of employing a fall prevention measure that would
allow freedom of movement was defeated by the personal attack alarm. This
is evident from Ms. Robbins' recognition that the pull strap was so short
that it forced the resident to remain in a rigid, upright position. During
the course of Ms. Robbins' testimony, I brought to her attention that
it appeared to me that a person would have to sit in an extremely rigid
position not to pull that pin out. To that observation, she responded
that: "...they activated them quite easily because there was just a small
room for error because we really did want to try prevent people from getting
up. Tr. at 211. In that sense, contrary to the facility's contention that
the personal attack alarm provided freedom of movement, it was, to a certain
extent, employed as a restraint. Ms. Robbins
did not mention that the alarm chosen by the facility for the protection
of its residents was an inexpensive device intended for use by the general
population for personal protection. (6)
CMS Ex. 2 at 2. Yet Petitioner submitted into evidence examples of protective
alarms suited for a nursing home setting, which seems to indicate that
they knew of the existence of appropriate alarm devices that they could
have employed. P. Exs. 40, 41. It is a sad commentary if they opted for
the crime prevention type of alarm instead of the one depicted at P. Exs.
40 and 41 solely because they were inexpensive. Moreover, if as Ms. Robbins
stated, the alarms were going off frequently, it appears that no consideration
was given to the exposure of residents to inner ear damage from the piercing
noise. P. Ex. 39 at 3. Petitioner
knew of the inadequacy of the Quorum personal attack alarm when the resident
was found on the floor of his room on April 12, 1999. On that occasion,
the alarm was found disconnected from the resident's gown, the safety
pin used to attach the cord to the gown was open, bent, and no longer
attached to the gown. Furthermore, the alarm had not activated. CMS Ex.
14 at 10; Tr. at 40. It was also known to the facility that Resident 1
had a tendency to slide down from his bed and chair. The facility had
concluded that, as a result, the resident required frequent repositioning
with maximum assistance. CMS Ex. 47 at 2. The care plan called for keeping
the resident within view when out of bed with his body alarm. Nonetheless,
the facility record does not indicate that he was observed when he fell
to the floor on April 12, 1999, or when he slid from his chair and hanged
himself on April 13. Petitioner claims that the standard for observing
residents that are at risk for falls is every two hours. P. Br. at 20;
Tr. at 231. However, the facility had concluded that observation every
two hours was inadequate when the resident was out of bed with a body
alarm, and that he required frequent repositioning. Consequently, the
facility care plan called for keeping the resident within view. Thus,
every two-hour observation was grossly inadequate for Resident 1. Petitioner
misunderstands Ms. Robbins' testimony to the effect that: "just because
a person is in isolation [because of his contagious infection] doesn't
mean that they require any more observations." See P. Br. at 19. Although
that may be true, it was not the fact of the resident's isolation that
warranted ongoing supervision, but, rather, his very compromised physical
and mental condition and the fact that he had a tendency to slide off
the bed and chair and needed frequent repositioning. These needs could
not be met with two hour observations. Petitioner fell woefully short
of providing the level of supervision it had determined that Resident
1 required, and did not satisfy that requirement by placing him close
to the nurses station in the hope that staff would stop and observe him
as they passed by. Such a hit or miss approach to nursing care is unacceptable.
P. Br. at 19. On a final note here, I must point out Petitioner's attempt
at making an issue of the fact that no one really knows the details of
exactly what happened on April 12 and April 13, 1999 is misplaced. I find
that I am able to draw inferences and conclusions based on the facts available
to me regarding those incidents, and also find that the facility's inability
to explain what happened to the resident on April 12 or 13, 1999 is further
indication of its failure to provide adequate supervision. Petitioner puts much stock in the argument that the tragic incident resulting in the demise of Resident 1 was unforeseeable. Although the fact that an accident occurred does not by itself establish absence of adequate supervision, non-compliance may be found where the accident was preventable. CMS has established a prima facie case by coming forward with evidence that reveals that the facility did not provide adequate supervision and assistance devices to prevent accidents. Additionally, it has been shown that such a deficiency caused or was likely to cause serious injury, harm, impairment or death to a resident. The applicable regulations do not require that CMS show that Petitioner foresaw the precise way in which harm would be visited upon residents as a result of its facility's failure to comply with participation requirements. CMS has met its burden by showing that the facility not only used a crime prevention alarm in a manner unintended by its maker, but also applied it in a way that was clearly hazardous and where risks of injury were clearly foreseeable. (7) Such risks were foreseeable in light of Petitioner's knowledge that the alarm system had not functioned the previous day. At that time, the resident pulled so hard on the alarm cord, without setting it off, that the safety pin attached to the gown bent and became open. CMS Ex. 14 at 10. Furthermore, Petitioner knew of the resident's tendency to slide off the bed and chair, and, even knowing that, it did not provide staff with policies and procedures for use of the attack alarm in a way that did not pose a risk to residents. In the particular case of Resident 1, he was physically and mentally so compromised that he would be unable to extricate himself from a life threatening situation. That is precisely what happened on April 13, 1999, when he was unable to free himself from the strangle-hold of his night gown.
In view of
the foregoing discussion, it is my finding that CMS has established a
prima facie case that Petitioner was not in substantial compliance with
federal requirements for long term care facilities participating in the
Medicare and Medicaid programs from April 14, 1999 through April 21, 1999.
Petitioner, on the other hand, has not overcome CMS's showing by a preponderance
of the evidence. Furthermore, I sustain CMS's finding that Petitioner's
level of noncompliance constitutes immediate jeopardy. It was reasonable
for CMS to conclude that other residents, in a situation similar to Resident
1, were also likely to suffer serious injury, harm, impairment, or death. Petitioner
contends that the use of the personal attack alarm for the supervision
of Resident 1, as well as the manner in which it was applied, was appropriate.
However, before the State surveyors came on the scene, the facility removed
all personal attack alarms and was unable to produce any of the devices
for inspection. Tr. at 28. This is not a situation where the facility
is being penalized for correcting a deficiency. If I am to accept that
the facility truly believed that it was employing appropriate devices
in an appropriate manner, I would also have to find that it proceeded
to remove those devices prior to the arrival of the surveyors without
a suspicion that they had any connection whatsoever with the death of
Resident 1.
It is also
Petitioner's position that since CMS found immediate jeopardy beginning
the day following the accident resulting in the death of Resident 1, that
somehow that detracts from a finding of non-compliance. Although it may
have been appropriate for CMS to determine that immediate jeopardy began
on April 13, 1999, nothing prevents it from starting the period of non-compliance
the next day. CMS based its conclusion of immediate jeopardy on the facility's
failure to provide adequate supervision and assistance devices to protect
its residents. This state of affairs became evident when Resident 1 died
of asphyxiation after he strangled himself with the neck of his gown due
to the employment by the facility of a personal attack alarm as a fall
prevention measure. Thereafter, Petitioner did not have in place adequate
measures to protect its residents from accidents until April 22, 1999. Ms. Nancy Jo
Smith stated that she visited the facility on April 14, 18, and 19, 1999.
The visits subsequent to the 14th of April were for the purpose of making
observations as to how the residents were being supervised. Since the
crime prevention devices had been removed, she was interested in seeing
what the facility was using for alarms, whether any in-servicing was being
conducted, and what protective measures for the residents were in place.
She found that on the 18th of April there were no alarms in use. However,
as an interim measure, the facility placed a group of residents in the
day room and assigned a CNA to be with them for protection from falls
and other hazards. The group was comprised of the residents from whom
alarms had been removed. Tr. at 54, 55. Ms. Smith added that when she
returned on the 19th, the alarms were in place, but policies and procedures
for supervision had not been established, nor had in-servicing been completed.
Tr. at, 58. Ms. Smith also noted that on the 18th of April, the CNA in
charge of the residents from whom the alarms were removed, and who had
been grouped in the day room, went away and left the residents alone.
During her absence, one of the residents fell. Ms. Smith brought the incident
to the attention of the facility to let them know that the interim measure
in lieu of alarms was not working, because the person in charge of the
residents that had been placed in the day room had left them alone. As
a result, the facility put the new alarms in use the following day, although
in-servicing had not been completed. Tr. at 59.
Surveyor Kimberly
Smoak visited Petitioner's facility on April 15th to conduct a partial
extended survey, and returned on the 22nd for a follow up visit. Her goal
was mainly to examine the facility's policies and procedures. Tr. at 97,
98. As of the 15th of April, no alarms were in use by residents, and 22
had been identified as having had alarms removed from them. Tr. at 101.
Surveyor Eleanor
McKinnon visited Coquina Center on April 16, 17, and 21, 1999. Her goal
was to determine the adequacy of staffing and observe resident supervision.
Tr. at 148. On the 16th, staffing appeared to be adequate, but the new
alarms that had been ordered were not in place yet. The alternate safety
monitoring system for the residents arrived and was unpacked at 11:30
a.m. on April 17. Ms. McKinnon noted that nurse consultants were present
in the facility in the process of drafting policies and procedures. Fourteen
residents were in the day room with a staff person. Although Ms. McKinnon
was unable to identify those residents, I infer that they were the ones
testified to by Ms. Smith as residents from whom alarms had been removed.
Tr. at 151. On her last visit to the facility, Ms. McKinnon observed 11
residents in the day room under the care of one staff person. She noted
that two chair alarms were in use. Ms. McKinnon asserted that the facility
was not in compliance with Tag 324 on April 15, 1999, because they were
still in the process of ordering alarms and in-servicing staff in order
to implement the mode of supervision they had chosen. Tr. at 107. Petitioner
argues that based on an internal State survey agency report dated April
16, 1999, from Ms. Nancy Jo Smith to supervisor Karen Swann, its facility
was appropriately supervising its residents at the time of the April 15
monitoring visit. CMS Ex. 1, at 6; P. Br. at 26, 29. At page 6 of that
report, Ms. Smoak purportedly informed Ms. Smith that:
As Petitioner
points out, Ms. Smoak testified that she did not report any of her findings
to Ms. Smith. She reported her documented observations directly to the
field office manager, Ms. Karen Swann. Tr. at 124, 125; P. Br. at 26,
27. In order to clarify the apparent inconsistency, I recalled Ms. Smith
to the stand motu proprio. On recall, Ms. Smith testified that
she added to her own report the portion purportedly containing the findings
of Ms. Smoak. (8) Those findings were supplied
by her supervisor, Ms. Nancy Marsh. Tr. at 136. Ms. Marsh presumably summarized
her understanding of Ms. Smoak's report as reflected at CMS Ex. 18, and
provided that summary to Ms. Smith. Ms. Smith added that State survey
agency supervisors have discretion to make modifications to survey reports.
Tr. at 139, 140. From the above circumstances, Petitioner argues that I should disregard the testimony that contradicts the purported summary of Ms. Smoak's report found at CMS Ex. 1, at 6. However, the overwhelming evidence in this case is that on April 15, 1999 there were no residents provided with any type of alarm to protect them from falls or other accidents. That was the unequivocal testimony of the three surveyors that testified. That fact was not contradicted by any of Petitioner's witnesses. The confusion appears to stem from the fact that on April 13, 1999, Petitioner immediately removed the inappropriate crime prevention alarms it had been using and ordered another type of alarm. Tr. at 157. However, as mentioned earlier, the new alarms were returned because the facility found them to be inadequate. Somehow the impression was incorrectly conveyed that the first delivery of alarms abated the existing deficiency. It is evident from the visits that the surveyors made to the facility after April 15, 1999, that no alarms were in place prior to April 19. Ms. McKinnon testified that the second delivery of alarms arrived on April 17, 1999. They were unpacked at 11:30 a.m. that same day. Ms. Smith noted that when she visited the facility on April 18, the residents from whom the alarms had been removed were left unattended and one of them fell. Therefore, she urged the facility to do something to protect the residents because the temporary measure in lieu of alarms was not working. As a result, deployment of the alarms began on April 19. At that time, in-servicing had not been completed. Additionally, the facility was still in the process of drafting policies and procedures for the supervision of its residents. All of these events to which the three surveyors testified, and which remain uncontradicted, occurred after April 15, 1999. Thus, based on a misunderstanding of what transpired on April 15, 1999, I cannot ignore events that took place subsequent to that date and which are not addressed at CMS Ex. 1, at 6. In view of the foregoing, I deny Petitioner's request to disregard the testimony of the surveyors regarding the existence of the deficiency subsequent to the untimely death of Resident 1 on April 13, 1999. I further find that the deficiency existed at the immediate jeopardy level through April 21, 1999. Tr. at 182. Petitioner has advanced no persuasive evidence to show that CMS's finding in this regard is clearly erroneous.
CMS imposed
a $10,000.00 per day CMP for the period beginning April 14, 1999 and ending
April 22, 1999. Petitioner claims that CMS offered no witness or documentary
evidence at the hearing in support of the $10,000.00 CMP imposed. Consequently,
argues Petitioner, CMS did not afford it an opportunity to inquire into
the basis for the CMP, or to rebut the rationale for imposing the highest
CMP allowed by law. In support of its contention, Petitioner relies mainly
on the holding in Emerald Oaks, DAB No. 1800 (2001).
(9) However, a correct reading of the decision in Emerald Oaks
does not lead to the conclusion that CMS has to present documentary or
testimonial evidence at the hearing to substantiate its claim that it
considered the factors identified at 42 C.F.R. � 488.438(f) in determining
the amount of the CMP imposed. In the case at hand, CMS informed Petitioner that it had considered the factors listed in the regulation cited above in arriving at the amount of the CMP. CMS Ex. 6, at 3. If Petitioner disagreed with that assertion it should have presented evidence to contest the reasonableness of the amount of the CMP in the de novo hearing before me. Emerald Oaks, at 12. In order for Petitioner to put before me such matters as its compliance history, financial condition, or degree of culpability, it did not need to inquire into the basis for the CMP. Nothing prevented Petitioner from presenting evidence to rebut CMS's assertion that the factors set forth in the regulations justified the CMP imposed. Had Petitioner availed itself of that opportunity at the hearing, I would have considered the evidence presented in that regard along with any evidence presented by CMS in determining the reasonableness of the CMP. Emerald Oaks, at 12, 13. Rather than challenge CMS's assertion with evidence of its own, Petitioner elected to attempt to persuade me to look into the internal decision-making process of CMS officials, contrary to the Board's express holding in CarePlex of Silver Spring, DAB No. 1683, at 11 (1999). In a more recent
decision, the Board set forth with clarity the proper application of the
regulation in determining the reasonableness of the CMP. Community Nursing
Home, DAB No. 1807 (2002). The Board stated the following:
Community Nursing
Home, at 22. Petitioner's
argument here is not different than that posed by the facility in the
above cited case. The response in both cases is identical: The CMP may
be sustained even in the absence of the presentation of any evidence by
CMS on its consideration of the regulatory factors. Community Nursing
Home, at 24. In conclusion,
inasmuch as Petitioner did not challenge any of the factors considered
by CMS in arriving at the CMP, the findings by CMS as to that issue remain
uncontested. I therefore have the authority to determine the reasonableness
of the amount of the penalty even in the absence of such evidence in CMS's
presentation of its prima facie case. In this case, the penalty arose
from Petitioner's non-compliance concerning appropriate supervision and
assistance devices to prevent accidents. The level of non-compliance constituted
immediate jeopardy to health and safety. This stemmed from the improper
use of a crime prevention device as a means of addressing resident supervision,
which resulted in the death of Resident 1. Petitioner's actions placed
other residents in similar jeopardy. In the face of such a severe deficiency,
it was reasonable to impose a $10,000.00
per day penalty for the period commencing April 14, 1999 through April
21, 1999. Such a penalty is appropriate and within a reasonable range,
given the circumstances of this case. I further find that it served the
purpose of driving the facility back into compliance. Petitioner's argument
that the CMP could not have been higher if its facility had done nothing
at all is without merit. Had the facility taken no action all, the per
day penalty would have continued for greater number of days, resulting
in a higher dollar amount. V.
Conclusion I conclude that CMS correctly determined that, beginning April 14, 1999 through April 21, 1999, Petitioner was not complying with federal participation requirements in the Medicare program at the immediate jeopardy level, and that the imposition of a CMP of $10,000.00 per day is reasonable. |
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JUDGE | |
José A. Anglada Administrative Law Judge
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FOOTNOTES | |
1. The Health Care Financing Administration has been renamed the Centers for Medicare & Medicaid Services (CMS). Reference to either name shall apply to both names. 2. Petitioner came into substantial compliance prior to the effective date of the termination of the provider agreement. Thus, the CMP based on immediate jeopardy remained as the sole issue in the case. 3. See also Beverly Health & Rehabilitation-Springhill, DAB CR553 (1998). 4. Although the personal attack alarm employed by the facility was similar to one distributed by Radio Shack, described at CMS Ex. 54, it was in fact a product of Quorum International and is described at P. Ex. 39. 5. It is worthy of note that Petitioner acknowledged in its opening statement that the way the resident slid out of his chair would be the only way that the cord could not pull out. 7. Petitioner should have also foreseen that if the alarm were to be activated, it may have caused ear damage to a resident. 8. Ms. Smith at one point even doubted whether she had typed the findings attributed to Ms. Smoak found at CMS Ex. 1, at 6; Tr. at 137. 9. Although Petitioner seems to rely on the holding of this case, it nevertheless describes the Board's language as "murky" (P. Br. at 31). | |