Saint Anne Nursing and Rehabilitation Center, DAB CR5632 (2020)

DECISION

I sustain the determination by the Centers for Medicare & Medicaid Services (CMS) that Petitioner, Saint Anne Nursing and Rehabilitation Center, a skilled nursing facility, failed to comply substantially with a Medicare participation requirement stated at 42 C.F.R. § 483.25(d)(1) and (2).  Additionally, I sustain CMS’s determination to impose civil money penalties against Petitioner of $505 for each day of a period that began on June 1, 2017 and that continued through July 9, 2017.

I. Background

This case was transferred to me very recently from another administrative law judge.  After having reviewed the case file, I decide that this case is ripe for a decision based on the parties’ written pre-hearing exchanges.  For that reason, I find it unnecessary to schedule an in-person hearing.

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The parties exchanged proposed exhibits.  CMS filed 32 proposed exhibits, identified as CMS Ex. 1-CMS Ex. 32.  Petitioner did not object to my receiving these exhibits into the record, and therefore, I receive them.  CMS offered the written direct testimony of one witness, Ms. Cathy Prentice.  CMS Ex. 32.  Petitioner did not file a request to cross-examine Ms. Prentice.

Petitioner filed two proposed exhibits, identified as P. Ex. 1-P. Ex. 2.  CMS objected to my receiving P. Ex. 2 into the record.  That exhibit consists of written direct testimony by an individual, Ms. Sharon Bare.  CMS grounds its objection on Ms. Bare’s admission that she was not employed by Petitioner on the dates when the events that form the basis for CMS’s allegations of noncompliance occurred and has no first-hand knowledge of those events.  CMS asserts additionally that Ms. Bare is unqualified to testify about those events as an expert.

I overrule CMS’s objection.  That said, I find Ms. Bare’s testimony to be of no probative value.  CMS is correct in asserting that Ms. Bare has no first-hand knowledge of the relevant events nor has she qualified as an expert to testify about them.  I receive into the record P. Ex. 1-P. Ex. 2.

CMS also objected to my hearing the proposed testimony of two of Petitioner’s proposed witnesses.  These individuals are Mr. Tony Wilson and Ms. Marita Smith.  CMS grounds its objections on the failure by Petitioner to provide written direct testimony for either of these witnesses as part of its pre-hearing exchange.  The initial pre-hearing order in this case plainly specified, at Paragraph 8, that all proposed testimony be reduced to writing and made under oath.  Petitioner failed to comply with that requirement.

In an attempt to partially cure its failure to comply, Petitioner belatedly filed an affidavit by Ms. Smith in response to CMS’s objections.  Petitioner’s justification for its late filing is that Ms. Smith was on an extended vacation when Petitioner’s pre-hearing exchange was due and therefore, inaccessible.

I sustain CMS’s objections to receiving the testimony of Mr. Wilson and Ms. Smith.  Petitioner never offered written direct testimony by Mr. Wilson.  As for Ms. Smith, Petitioner’s excuse for not filing her affidavit timely does not establish good cause for its failure to comply with the initial pre-hearing order.  Petitioner did not offer Ms. Smith’s affidavit for several months after its exchange deadline had elapsed.  It has not suggested that Ms. Smith’s extended vacation was coterminous with the period during which Petitioner delayed offering her affidavit.

CMS consented to a decision on the written record, waiving its right to cross‑examine Petitioner’s remaining witness.

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II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(d)(1) and (2) and whether CMS’s remedy determination is reasonable.

B. Findings of Fact and Conclusions of Law

A skilled nursing facility has a duty to take all measures that are reasonable protect its residents against foreseeable accidents and to provide those residents with necessary supervision, equipment, and assistance devices in order to ensure that they are protected.  42 C.F.R. § 483.25(d)(1) and (2); Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017); Century Care of Crystal Coast, DAB No. 2076 at 7 (2007).  CMS alleges that Petitioner failed to comply with its duty to comply with these requirements in its treatment of two residents, identified as Residents 1 and 2.

Petitioner failed to protect Resident 1 against the clearly foreseeable risk that he might injure himself by spilling a hot beverage.  Resident 1 suffered from multiple sclerosis and was confined to a wheelchair.  CMS Ex. 19 at 10.  Among the manifestations of his illness were impairments to all of his extremities.  He displayed limited mobility and grip strength with his arms and hands.  CMS Ex. 11 at 9; CMS Ex. 32 at 2.

The resident’s care plan stated that he would be supplied large handled utensils to enable the resident to feed himself and that he would drink beverages from a “sippy cup,” a cup that has two handles.  CMS Ex. 11 at 8.  The care plan identified numerous deficits that the resident experienced.  For example, it noted that Resident 1 was incontinent, and it also stated that the resident needed total assistance with transfers.  Id. at 9, 12.  The care plan also stated that Resident 1 was taking medication that had known side effects that included drowsiness, clumsiness, and slowed reflexes.  Id. at 11.

However, the care plan did not identify hazards against which Resident 1 needed protection.  There was no discussion, for example, in Resident 1’s care plan of any risks that the resident might incur while attempting to feed himself or while drinking hot beverages.  There were no interventions described in the plan that might protect the resident from those hazards.

These were hazards that Petitioner’s staff should have identified and addressed, but which they did not.  Resident 1 enjoyed drinking tea and he consumed three cups of hot tea each morning.  CMS Ex. 7 at 4.   The resident would place a cup of hot tea in his lap in order to cool it.  Id. at 1-2.  Petitioner’s staff was aware of this practice.  Id. Petitioner’s staff should have known that there was a potentialfor Resident 1 to spill hot

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beverages, given his several severe limitations.  Furthermore, staff should have developed and implemented approaches to protect the resident.  Something as simple as providing the resident with a cup holder for his wheelchair was an obvious protection that Petitioner’s staff neither considered nor implemented.  CMS Ex. 7 at 5; CMS Ex. 32 at 2.

On May 19, 2017, Resident 1 spilled hot tea, experiencing a burn to his right thigh.  CMS Ex. 14; CMS Ex. 20 at 1.  The accident occurred when a nursing assistant handed a cup of hot tea to the resident.  CMS Ex. 7 at 2.  The resident felt a burning sensation in his knuckles, dropped the cup, and tea spilled onto his lap.  CMS Ex. 7 at 1.

The risk that Resident 1 might burn himself by spilling a hot beverage was augmented by the failure of Petitioner’s cook to assure that beverages served to residents were not dangerously hot.  The cook only checked the temperature of beverages once a day, at about 6:00 a.m.  CMS Ex. 7 at 3.  Petitioner’s policy was that beverages should not be served to residents at temperatures higher than 175 degrees, Fahrenheit.  However, during a survey of Petitioner’s facility the surveyor noted that the water temperature in the heater used for preparing beverages for residents’ consumption was 185 degrees.  A half-hour later that temperature remained at 183 degrees.  Id. at 3, 9.

Petitioner failed to protect Resident 2 from the very obvious risk that she could fall and injure herself.  Resident 2 was identified by Petitioner’s staff as being at risk for falling.  She had a history of falls, including one sustained on March 3, 2017 and another sustained on April 27 of that year.  CMS Ex. 30.  The staff performed a fall risk assessment of Resident 2 on May 8, 2017, concluding that the resident would lose balance when standing and had decreased muscle coordination.  CMS Ex. 26.  The resident’s care plan stated that Resident 2 had poor safety awareness and was at a high risk for falling.  CMS Ex. 25 at 1-4.

The care plan stated that Resident 2 faced a heightened risk of falling on the three days per week when she underwent dialysis.  CMS Ex. 27 at 4.  On those days the resident required a wheelchair for mobility and greater assistance with transfers.  The plan said that staff would frequently monitor the resident and offer her assistance after she received dialysis.  CMS Ex. 25 at 3.

Resident 2 received dialysis on May 16, 2017 and had been supplied a wheelchair on that date.  CMS Ex. 27 at 4-5.  On that date a member of Petitioner’s staff discovered Resident 2 lying on the floor of Petitioner’s dining room.  CMS Ex. 28 at 1.  The resident reported that she had attempted to transfer herself to her wheelchair from a dining room chair.  As she attempted to stand, her chair rolled backwards, causing the resident to lose her balance and to fall.  Id.  The resident sustained a head injury and a fractured arm and hand.  CMS Ex. 29 at 1, 5-6.

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Petitioner’s staff did not observe Resident 2’s fall.  In an obvious violation of the resident’s care plan, the staff did not offer the resident assistance transferring from the dining room chair to her wheelchair despite the plan’s explicit instruction to monitor the resident and offer her assistance after she received dialysis.

Petitioner’s principal defense to this evidence of dereliction of responsibility is that “sometimes accidents happen and are unavoidable.”  Saint Anne Nursing and Rehabilitation Center Pre-hearing Brief (Petitioner’s brief) at 1.  It asserts that it should not be held responsible for events that are beyond its ability to control.

The regulations do not render a skilled nursing facility strictly liable for every accident that occurs on its premises.  Nothing in the regulations imposes a duty on a facility to ensure that its premises are accident-free.  That said, every skilled nursing facility has a duty to protect its residents against all known hazards and foreseeable accidents.  In the cases of Residents 1 and 2, the hazards were known – indeed, they had been documented by Petitioner’s staff in the residents’ care plans – and accidents of the type that occurred to these two residents were foreseeable.

With respect to Resident 1, Petitioner contends that there was no need for a care plan to address the possibility that the resident might spill a hot beverage because he had a multi-year history of drinking tea while seated in his wheelchair.  Petitioner’s brief at 3.  However, being lucky isn’t the same thing as being protected.  The fact that the resident hadn’t previously spilled tea while seated in his wheelchair is simply a matter of the resident’s good fortune.

Petitioner’s staff had identified all of the ingredients for a potentially dangerous accident: the resident had severe mobility and coordination issues affecting his upper extremities; he was taking medication that had the potential of increasing his lack of coordination and rendering him clumsy; and, nevertheless, he enjoyed drinking hot tea while seated in his wheelchair with the cup held in his lap.  These obvious hazards impelled Petitioner’s staff to assess the risks and to determine what protection the resident might need.  Something as simple as a cup holder on the resident’s wheelchair might have protected the resident.  However, Petitioner’s staff made no determination as to whether that simple device or something like it would have benefitted him.

Petitioner argues also that giving the resident a two-handled sippy cup was all the protection that the resident needed.  Petitioner’s brief at 3-4.  In fact, Petitioner’s staff had no idea whether that was true.  The resident’s treatment records are devoid of any assessment of whether a sippy cup adequately protected him.  See CMS Ex. 7.  Furthermore, the evidence suggests that giving the resident a two-handled cup was not adequate protection.  When interviewed, Resident 1 told a surveyor that, typically, he held the cup with just one hand (his left hand) because he wanted to leave his right hand free to propel his wheelchair.  CMS Ex. 32 at 2.  That would have become evident had

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the staff closely assessed Resident 1 and might have directed the staff to search for additional protection for the resident.

Petitioner did not respond to the evidence showing that Petitioner was using water for beverages that was heated to temperatures above those limited by Petitioner’s own policy, evidence that I have found to contribute to establishing Petitioner’s failure to protect Resident 1.

As concerns Resident 2, Petitioner contends that the resident had a history of effective self-transfers to and from her wheelchair to another chair.  Petitioner’s brief at 5.  From this, Petitioner seems to say that its staff had no duty to closely observe the resident.

This argument belies the staff’s assessment of Resident 2.  That assessment found that the resident was manifestly unstable when on her feet and that her instability increased on days when she had undergone dialysis.  That assessment was validated by the fact that the resident had fallen twice in days shortly prior to her accidental fall on May 16, 2017.  Petitioner’s staff determined that the resident needed observation and assistance on those days when she received dialysis.  That determination was part of the resident’s plan of care.  The staff’s failure to protect Resident 2 on May 16, 2017 contravened the staff’s plan of care for the resident.

Petitioner argues additionally that protecting the resident from falling was an impossibility.  According to Petitioner:

In order to avoid a fall from a self-transfer like the one Resident 2 experienced, she would have had to be constantly restrained or a staff would need to be at her side monitoring her every second.  Not only is it not practical or reasonable for a staff to closely monitor one particular resident 24/7, it would deny Resident 2 of her independence and dignity to be her own person.

Petitioner’s brief at 5.

That argument is a straw man.  Petitioner’s staff didn’t assess Resident 2 as needing constant supervision or restraining.  Rather, the staff concluded that the resident needed assistance on certain occasions, especially on days when she received dialysis.  Petitioner hasn’t offered any explanation why its staff couldn’t have been available to help the resident on May 16, 2017.  The evidence shows that on this date the resident – despite staff’s finding that she needed help – was left unattended.  Something as simple as seating the resident in Petitioner’s dining room within visual range or earshot of a staff member might have saved the resident on that date.

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I find that the civil money penalties that CMS determined to impose against Petitioner are reasonable, both in amount and in duration.  As of the dates of Petitioner’s noncompliance, regulations allowed for daily civil money penalties within a range of $105 to $6,289 for deficiencies – such as the one established here – that were not of an immediate jeopardy level of scope and severity.  45 C.F.R. § 102.3.  The penalty amount that CMS determined to impose, $505 per day, is less than one tenth of the maximum daily permitted amount.  That is an exceedingly modest penalty amount given the seriousness of Petitioner’s noncompliance and its culpability.

In evaluating whether a civil money penalty amount is reasonable I consider regulatory factors established at 42 C.F.R. §§ 488.438(f)(1)-(4) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors include the seriousness of a facility’s noncompliance and its culpability.  Here, the evidence shows a serious violation of regulatory requirements.  Residents 1 and 2 were each susceptible to harmful injuries as a consequence of Petitioner’s staff’s failure adequately to protect them.  That both residents sustained accidents and were injured is proof that the hazards faced by these residents were serious.  Moreover, Petitioner is culpable in the sense that, in the case of Resident 1, staff failed to assess and act on information that established the resident’s vulnerability, and, in the case of Resident 2, staff failed to implement the resident’s plan of care.

I find that CMS’s determination of the duration of Petitioner’s noncompliance, running from June 1 through July 9, 2017, is reasonable.  The accidents that occurred to Residents 1 and 2 transpired prior to June 1, the first day on which CMS imposed a penalty. Petitioner’s own plan of correction for its noncompliance averred that compliance would be achieved on July 10, 2017.

Petitioner argues that daily penalties are unreasonable because, allegedly, they contravene a policy adopted by CMS in July 2017 to impose per instance civil money penalties in circumstances where, previously, it would have imposed daily penalties for noncompliance.  Petitioner’s brief at 7.  Whatever policy determination CMS may have made, the regulations governing civil money penalties clearly allow for per diem penalties in the precise circumstances that pertain here.  If CMS chooses to adopt a general policy for determining the type of penalties it imposes but deviates from that policy in a specific case, that is a matter of discretion that I may not address, so long as the penalties imposed in that case are legally permissible.  I have no authority to decide that CMS acted inappropriately here.