Symphony at 87th Street, DAB CR5927 (2021)

DECISION

Symphony at 87th Street (Petitioner or the facility) challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with Medicare program participation requirements at 42 C.F.R. § 483.25(d)(1)‑(2), (n)(1)‑(3).1   Petitioner also challenges the imposition of a $505 per‑day civil money penalty (CMP) for seventy-five (75) days beginning January 6, 2017, and continuing through March 21, 2017, for a total of $37,875.00.  For the reasons

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discussed below, I find that Petitioner failed to comply substantially with the Medicare participation requirements found at 42 C.F.R. § 483.25(d)(1)-(2).  I also conclude that the amount of the per-day CMP imposed is reasonable.

I. Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in Chicago, Illinois, that participates in the Medicare program.  See, e.g., CMS Exhibit (Ex.) 1.  On December 30, 2016, Petitioner self-reported to the Illinois Department of Public Health (IDPH or state agency) that Resident #1A2 had experienced a “Fall with Serious Physical Injury.”  CMS Ex. 17 at 9-13.

Based on the self-report, the state agency conducted an onsite survey of Petitioner’s facility on January 6, 2017.  CMS Ex. 11.  IDPH Health Facilities Surveillance Nurse Johanna Housh, RN (Surveyor Housh) was assigned to conduct the survey.  Id.; see also CMS Ex. 25 at ¶ 2.

In a letter dated January 17, 2017, IDPH concluded, based on the January 6 survey, that Petitioner was not in substantial compliance with federal participation requirements.  See CMS Ex. 1.  IDPH informed Petitioner that CMS would impose a denial of payment for new admissions (DPNA) beginning April 6, 2017, and would terminate Petitioner’s provider agreement effective July 6, 2017, if Petitioner did not return to substantial compliance by that date.  Id. at 2.  The letter also stated that IDPH would recommend that CMS impose a $500.00 per day CMP beginning January 6, 2017 and continuing until Petitioner’s facility achieved substantial compliance.  Id. at 2.

On February 27, 2017, Petitioner self-reported to IDPH that a second resident (Resident #1B) had experienced a “Fall with Serious Physical Injury” on February 26, 2017.  CMS Ex. 37 at 5-6.  Based on this report, the state agency conducted an onsite survey of Petitioner’s facility which was completed on March 7, 2017.  CMS Ex. 30; CMS Ex. 42.  IDPH Health Facilities Surveillance Nurse Kimberly Maul, RN (Surveyor Maul) was assigned to conduct the survey.  CMS Ex. 42 at ¶ 2.  Based on the March 7

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survey, IDPH determined that Petitioner continued to be out of substantial compliance with Medicare participation requirements.  See CMS Ex. 9.

By letter dated April 24, 2017, CMS notified Petitioner that, based on the IDPH surveys, CMS concluded that Petitioner was out of compliance with Medicare participation requirements:

On January 6, 2017 and March 7, 2017, Complaint Surveys were completed at Symphony at 87th Street by [IDPH] to determine if your facility was in compliance with the Federal requirements for nursing homes participating in the Medicare and Medicaid programs.  These surveys found that your facility was not in substantial compliance, with the most serious deficiency at scope and severity (S/S) level G, cited as follows:

• F0323 -- S/S: G -- 483.25(d)(1)(2)(n)(1)-(3) -- Free of Accident Hazards/Supervision/Devices3

CMS Ex. 10 at 1.  CMS noted that IDPH conducted a revisit to Petitioner’s facility on April 10, 2017, and found that Petitioner returned to substantial compliance as of March 22, 2017.  Id.  Therefore, the DPNA and termination of Petitioner’s provider agreement did not go into effect.  Id. at 1-2.  However, because CMS determined that the facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2) (Tag F323), CMS imposed a CMP of $505.00 per day for the 75 days beginning January 6, 2017 and continuing through March 21, 2017 for a total of $37,875.00.  Id. at 2.

Petitioner timely requested a hearing to challenge the remedies imposed in the IDPH notice of January 17, 2017.  That hearing request was docketed as C‑17‑454 and assigned to me for hearing and decision.  Petitioner also timely requested a hearing to contest the CMP imposed in CMS’s letter of April 24, 2017.  Petitioner’s second hearing request was docketed as C‑17‑837, and also assigned to me.  Petitioner moved to consolidate docket numbers C‑17‑454 and C‑17‑837.  By order issued July 18, 2017, I granted Petitioner’s motion and consolidated both hearing requests under Docket No. C‑17‑837.

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In compliance with my Pre-Hearing Order, CMS and Petitioner filed prehearing exchanges, including prehearing briefs (CMS Br. and P. Br., respectively), exhibit and witness lists, and proposed exhibits.  As part of its prehearing exchange, CMS offered the written direct testimony of two witnesses, Surveyor Housh and Surveyor Maul.  CMS Exs. 25 and 42.  Petitioner offered the written direct testimony of nine witnesses:  nurses Gwendolyn M. Washington, Tina Taylor-Johnson, Eric Walker, Simone Stephens, and Kattenia Suggs; certified nursing assistants Sinead Martin and Melissa Henderson (CNA Martin and CNA Henderson); activities assistant Arvena Hardnick (AA Hardnick); and Maintenance Director Charles Peoples.  P. Exs. 8‑16.  Petitioner reserved the right to cross-examine CMS’s witnesses.  With its exchange, Petitioner also filed a motion in limine, requesting to exclude CMS Exs. 11, 15, 17, 20-25, 29, 30, 36-39, and 41.  See Docket Entry #9 in the Departmental Appeals Board (DAB) Electronic Filing System (E‑File).  CMS did not request to cross-examine Petitioner’s witnesses, but filed a motion to exclude P. Exs. 4 and 16.  See Docket Entry #29 at 3.

On September 19, 2018, I conducted a telephone prehearing conference with the parties, the substance of which is described in a Summary of Prehearing Conference and Notice of Hearing issued on September 21, 2018 (Summary).  Docket Entry #34.  In the Summary, I noted that at the prehearing conference, CMS withdrew CMS Exs. 20-22 and 38-39; those exhibits are no longer part of the record.  I reserved admission of CMS Exs. 25 and 42, the written declarations of CMS’s witnesses, overruled all other objections, and admitted all remaining proposed exhibits.

On November 29, 2018, I held a hearing by video teleconference (VTC) and a transcript (Tr.) was made of the proceeding.  I presided from the DAB offices in Washington, DC.  Counsel for each party, and CMS’s witnesses, Surveyor Housh and Surveyor Maul, appeared via VTC from the Chicago, Illinois regional office of the United States Department of Health and Human Services.  Amy E. McCracken, Esq., represented Petitioner and Joan M. Zanzola, Assistant Regional Counsel, represented CMS.  Civil Remedies Division (CRD) attorney-advisor Elizabeth Fischer Laurie also appeared and assisted me in the proceedings.  During the hearing, Petitioner cross-examined Surveyor Housh (Tr. at 20-94, 109-116) and Surveyor Maul (Tr. at 122‑133).  Following the hearing, each party submitted a post-hearing brief (CMS Posthrg. Br., P. Posthrg. Br.) and a reply brief (CMS Reply, P. Reply).

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II. Issues

The issues in this case are:

1. Whether Petitioner failed to comply substantially with Medicare participation requirements; and, if not
2. Whether the CMP amount is reasonable.

III. Jurisdiction

I have jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

IV. Burden of Proof

CMS must make a prima facie showing that Petitioner failed to comply substantially with federal participation requirements.  If this occurs, Petitioner must prove substantial compliance by a preponderance of the evidence in order to rebut CMS’s showing and to prevail.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997), aff’d sub nom Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., No. Civ. A 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d sub nom Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998).

V. Discussion

A. Statutory and Regulatory Framework

The Act sets forth requirements SNFs must meet to participate in the Medicare program.  The Act authorizes the Secretary of Health & Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3). The Secretary’s regulations are found at 42 C.F.R. part 483.

A facility must maintain substantial compliance with program requirements in order to participate in the Medicare program.  To be in substantial compliance, a facility’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.  A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act (42 U.S.C. § 1395i-3(b), (c), and (d)), or the Secretary’s regulations at 42 C.F.R. part

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483, subpart B.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20.  The Act and regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.  The Act also authorizes the Secretary to impose enforcement remedies against SNFs that are not in substantial compliance with the program participation requirements.  Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)).  Among other enforcement remedies, CMS may impose a per-day CMP for each instance of noncompliance, whether or not the deficiencies are at the immediate jeopardy level of noncompliance.  42 C.F.R. § 488.430(a).  CMS may also impose a per-day CMP for the number of days of past noncompliance.  42 C.F.R. § 488.430(b).  At the time CMS imposed the remedies at issue in this case, CMS was authorized to impose a CMP of $105 to $6,289 per day for non‑immediate jeopardy deficiencies.  42 C.F.R. § 488.438(a)(1)(ii); see also 82 Fed. Reg. 9174, 9188 (February 3, 2017).4

B. Findings of Fact, Conclusions of Law, and Analysis

1. I find the following facts by a preponderance of the evidence.

Resident #1A

At the time of the events at issue, Resident #1A was an 80-year-old woman who was admitted to Petitioner’s facility on February 25, 2013.  See, e.g., CMS Ex. 17 at 51, 52.  Resident #1A’s diagnoses included anxiety, depression, autonomic neuropathy, neurogenic bladder, urinary tract infection, diabetes mellitus type II, hypertension, and a

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stage IV pressure ulcer.5   Id. at 70-71, 77-78, 95.  Resident #1A was prescribed multiple medications, including Celexa (Citalopram), Dilaudid, Oxybutynin, Gabapentin, Lactulose, and had a Foley catheter.  Id. at 2, 69.

Resident #1A’s Admission Fall Risk screening, dated February 25, 2013, noted, “Resident [#1A] is non-ambulatory uses wheelchair for mobility unable to self propel.”  Id. at 42.  The screening indicated that Resident #1A was at high risk for falls.6   Id.  Upon admission to Petitioner’s facility, the resident “requested half side[ ]rails to aid in positioning while in bed.”  Id. at 49.  Consistent with the resident’s request, her attending physician ordered bilateral half side rails for Resident #1A’s bed to assist with bed mobility and transfers.  Id.  However, Petitioner discontinued side rails as of January 15, 2015, because Resident #1A was “no longer able to utilize [the] side[ ]rails to assist with bed mobility.”  Id. at 5.  Despite this change, Petitioner noted on January 18, 2015, that Resident #1A’s care plan for falls did not require new approaches or goals.  Id. at 24.

Resident #1A’s care plan with an initiation date of June 13, 2016, noted she had “[p]otential for falls,” was at risk for injury from falls, experienced weakness, unsteady gait, poor balance, and had poor safety awareness and impulsiveness.  Id. at 22.  Various interventions, also with initiation dates of June 13, 2016, included getting to know Resident #1A’s needs; checking on her frequently; keeping her area clutter free; and having the call light and commonly used items within reach.  Id.

Petitioner’s staff completed a quarterly MDS assessment of Resident #1A with an observation end date of December 12, 2016.  CMS Ex. 17 at 53.  The MDS assessment documented that, during the look-back period, Resident #1A relied on staff to complete most activities of daily living (ADLs).  CMS Ex. 17 at 63.  For example, Resident #1A was totally dependent on staff for transfers, locomotion on or off the unit, toileting, and

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personal hygiene and required two+ person assistance with bed mobility, transfers, dressing, and toileting.  Id.  Additionally, the MDS documented that Resident #1A was alert and oriented, scoring 12 on the Brief Interview for Mental Status (BIMS).7   Id. at 55.  The resident also stated it was “very important” to her to make choices about what to wear and how to be bathed, as well as to take care of her personal belongings and have a place to keep them safe.  Id. at 61.  She also rated as very important the ability to use the phone in private.  Id.

Regarding Resident #1A’s ADL performance during December 2016, Petitioner’s progress notes (“Skilled Look Back”) documented that staff provided varying levels of assistance.  For example, in a late entry for December 14, 2016, at 09:15, Petitioner documented that Resident #1A was “total[ly] dependent [for ADL] care with two person assist.”  CMS Ex. 17 at 112; see also id. at 116 (12/9/2016 11:57), 117-18 (12/7/2016 14:45).  By contrast, the entry for December 14, 2016, at 01:15, stated that the resident “requires 1-2 person staff assist with ADL care and transfer.”  Id. at 112-113; see also id. at 114 (12/13/2016 01:18), 113 (12/13/2016 11:15), 114 (12/12/2016 00:34; 12/11/2016 18:37), 115 (12/10/2016 22:20), 115-16 (12/10/2016 11:17), 118 (12/7/2016 01:18).  In further contrast, an entry for 12/12/2016, at 18:08, stated, “Resident is a one person assist w/ADL and incontinence care.”  Id. at 114.

The December 29, 2016 Incident

On December 29, 2016, Resident #1A fell out of bed.  See, e.g., CMS Ex. 17 at 27.  Petitioner’s Fall Occurrence Report documented:

Staff was present minutes prior to incident providing ADL care.  At that time resident . . . had a BM, staff left the room to get the nurse to change the dressing that was soiled.  When staff returned resident was on the floor.  [Resident #1A] stated, “My CNA was cleaning me up and my bandage got messed up.  She left to get the nurse and I fell out [of] the bed.”

Id. (all caps omitted); see also id. at 28 (statement of Resident #1A).

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Petitioner’s progress notes documented that, on December 29, 2016, at 19:50, a CNA reported that Resident #1A fell.  CMS Ex. 17 at 102-03.  Upon entering the room, the nurse noted that the resident was on the floor next to the left side of her bed, laying on her right side.  Id. at 103.  The nurse assessed Resident #1A’s range of motion, and, failing to see any deficits, assisted the resident back to bed.  Id.  A complete body check then revealed a small abrasion to the right side of the resident’s head.  Id. at 27, 103.  Petitioner notified the resident’s family and her physician of the fall.  Id. at 27.  Resident #1A complained of pain to her right shoulder.  Id. at 102 (12/29/2016 at 21:15). She was taken to the emergency room by ambulance.  Id.  At the hospital, Resident #1A was diagnosed with a right clavicle fracture.  Id. at 27, 31.

Petitioner’s Internal Investigation

Petitioner’s staff completed a post-fall “huddle” form, dated December 29, 2016.  CMS Ex. 17 at 30.  Instructions printed on the form suggest that it be completed within 15 to 30 minutes of the fall and that staff “develop interventions to prevent fall recurrence.”  Id.  Staff recorded on the “huddle” form that Resident #1A’s fall risk score was 10.8   Id.  The form noted the resident sustained an abrasion to her right scalp.9   The form also noted that Resident #1A’s call-light was on, but did not note that her necessities were within reach, as required by her care plan.  Id.  The form did not propose any new interventions to prevent future falls.  Id.

Petitioner self-reported Resident #1A’s fall, faxing an initial report to IDPH on December 30, 2016 and a follow-up report to IDPH on January 3, 2017.  CMS Ex. 17 at 6-13.  The initial report, signed by Director of Nursing Yolanda McKinney (DON McKinney), noted:

On 12/29/16 at approximately 7:50 pm staff observed [Resident #1A] lying on [the] floor on her right side.  Upon assessment she was noted to have an abrasion to [the] right side of [her] head.  [Resident #1A complained of] pain to right

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shoulder.  She was transferred to Trinity Hospital for evaluation and treatment.

Id. at 11.  The report further noted that the investigation was ongoing, and the following actions were taken:  1) Resident #1A was assessed; 2) Resident #1A’s family was notified; 3) Resident #1A’s physician was notified; and 4) Resident #1A was sent to the hospital.  Id.

The January 3, 2017 updated report, signed by Petitioner’s administrator, noted that Resident #1A sustained a fractured right clavicle.  CMS Ex. 17 at 8.  The report further stated:

When interviewed, [Resident #1A] stated that she fell from the bed onto the floor resulting in pain to her right shoulder.  Staff acknowledged being in the hall at the time of [Resident #1A’s] fall and hearing her body make contact with the floor.  This was [Resident #1A’s] first fall since being admitted to [Petitioner’s] facility on 2/25/13

Id.  Petitioner concluded and closed its investigation on January 5, 2017.  Id. at 27.

January 6, 2017 State Investigation

On January 6, 2017, Surveyor Housh completed a complaint investigation at Petitioner’s facility regarding the self‑reported fall of Resident #1A from her bed.  CMS Ex. 11; CMS Ex. 25 at ¶¶ 1, 2.  As part of the survey process, Surveyor Housh interviewed members of Petitioner’s staff and reviewed records.  CMS Ex. 25 at ¶ 2.  Surveyor Housh made handwritten notes of the interviews at or about the times she conducted the interviews.  Id.; see also CMS Ex. 15.  I find it more likely than not that Surveyor Housh’s notes accurately record the content of the interviews she conducted.  Surveyor Housh participated in writing the Statement of Deficiencies (SOD), which set forth the results of her survey and the deficiency assessed.  CMS Ex. 25 ¶¶ 2-3; Tr. at 22-23.

According to Surveyor Housh’s interview notes dated January 5, 2017 (3:14 PM), CNA Martin stated that, on December 29, 2016, while providing perineal care for Resident #1A, she noticed that Resident #1A’s wound dressing was soiled.  CMS Ex. 15 at 1.  Surveyor Housh’s notes quoted CNA Martin as follows:

I turned [Resident #1A] on her left side.  Turned [Resident #1A] flat on the back.  Was more so in the middle of the bed.  [Resident #1A] doesn’t have siderails.  She can’t hold herself up.  Her bed does not go all the way to the floor.  I had to leave the room to go get the nurse.  I heard a thump and I

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went back to the room. I noticed [Resident #1A] was on the floor. I was pretty sure she was in the middle of the bed but I don’t know.

Id. at 1-2.  CNA Martin signed the interview notes, indicating that she had read the statement and affirmed “the truth and accuracy of the facts contained therein.”10   Id. at 1.

According to Surveyor Housh’s interview notes dated January 6, 2017 (10:04 AM), DON McKinney stated that an MDS score of three for bed mobility “does indicate the need for two staff to assist [Resident #1A].”  CMS Ex. 11 at 3-4; see also CMS Ex. 15 at 3.  Additionally, DON McKinney indicated that she instructed the staff on ADL care, the importance of having all care-items in the residents’ rooms, and proper positioning of residents in bed.  CMS Ex. 15 at 3.

On March 2, 2017, while at the facility to investigate Resident  #1B’s fall (see below), Surveyor Maul interviewed CNA Martin concerning Resident  #1A.  CMS Ex. 36 at 4.  At that time, CNA Martin indicated that she had been performing incontinence care for Resident #1A when she stepped out of the room to get a nurse to change the resident’s soiled bandage.  Id.  CNA Martin heard a thump, and saw Resident #1A on the floor.  CNA Martin stated that when she left the room, Resident #1A’s bed was flat, and in the lowest position.  Id.

Resident #1B

At the time of the events at issue, Resident #1B was an 85-year-old man who was admitted to Petitioner’s facility on February 16, 2017.  See, e.g., CMS Ex. 37 at 7, 58.  Resident #1B was admitted to the facility from a hospital.  Id. at 58.  His diagnoses included hypertension, hypoglycemia, urinary tract infection, heart failure, dementia/Alzheimer’s disease, diabetes mellitus, and unspecified psychosis.  Id. at 7; see also id. at 20.  According to his MDS assessment, Resident #1B was severely cognitively impaired, with a BIMS score of 1.11   Id. at 61; see also id. at 7.  In addition, the resident was non-ambulatory, and required the assistance of staff to propel his wheelchair.  Id. at 7.

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Resident #1B’s care plan with an initiation date of February 16, 2017, described him as at risk for injury from falls, with a fall risk of 16.  CMS Ex. 37 at 12.  According to a Fall Risk Screen completed on admission, factors contributing to this score included a history of 1-2 falls in the last six months, inadequate vision, incontinence, daily agitated behavior, and being confined to a wheelchair and disoriented.  Id. at 52-53.  The care plan documented interventions that included applying the alarm;12 correctly positioning him in bed; monitoring for medication side effects; checking on him frequently; keeping his area clutter free; having commonly used items within reach; and encouraging him to transfer and change positions slowly.  Id. at 12-13.

Resident #1B’s care plan focusing on behavior, with an initiation date of February 20, 2017, noted:

[Resident #1B] has a behavior problem of refusing meals, medications, and is non-compliant with [his] plan of care.  This is evidenced by attempting to transfer and ambulate without assistance, his behavior is not easily redirected.

CMS Ex. 37 at 44.

Hospital notes from February 2017, prior to Resident #1B’s admission to Petitioner’s facility, documented that the resident’s blood glucose level was 63 on admission, and dropped to 60 because he was refusing to eat.  Id. at 27-28.  The hospital physician noted that Resident #1B’s weakness had resolved, but may have resulted from hypoglycemia.  Id. at 27.  According to a blood sugar summary compiled by Petitioner, from February 17‑25, 2017, Resident #1B’s blood sugar fluctuated between a low of 73 mg/dL and a high of 150 mg/dL.  Id. at 19.  A skilled look-back note dated February 18, 2017 noted no signs or symptoms of “hyper/hypoglycemia.”  Id. at 41.  A late entry nursing progress note dated February 25, 2017, documented that Resident #1B’s blood sugar was 50.  Id. at 37 (2/25/2017 16:00).  Petitioner’s staff notified the resident’s physician, who ordered

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a glucagon injection.13   Id.  A blood sugar re‑check 40 minutes later revealed a blood sugar level of 240.  Id. (2/25/2017 16:40).

According to an MDS assessment with an observation end date of February 23, 2017, Resident #1B required extensive assistance with all ADLs.  CMS Ex. 37 at 59, 66.  The MDS documented that Resident #1B required the assistance of one staff member with bed mobility, locomotion on or off the unit, eating, dressing, and personal hygiene; he required the assistance of two staff members for transfers and toileting.  Id. at 66.

The February 26, 2017 Incident

On February 26, 2017, at approximately 12:10 p.m., Resident #1B fell out of his wheelchair while in Petitioner’s dining room.  CMS Ex. 37 at 6.  A nurse’s progress note entered on the day of the fall documented that, following the fall, Resident #1B was “lethargic and confused” with a blood sugar level of 54.  Id. at 37 (2/26/2017 12:10); see also id. at 9 (2/26/2017 13:52).  AA Arvena Hardnick was in the dining area at the time of Resident #1B’s fall and indicated “she was in the dining room assisting another resident; she noticed that Resident #1B was leaning to his right side, tried to catch him[,] but he fell from [his wheelchair] and landed on the floor on his right side and bumped his head on the floor.”  Id. at 9; see also id. at 29; P. Ex. 12 at ¶ 6.At the time of his fall, Resident #1B’s chair alarm sounded.  CMS Ex. 37 at 10; see also P. Ex. 12 at ¶ 6.

Petitioner’s staff notified Resident #1B’s physician and family of the resident’s fall.  CMS Ex. 37 at 9.  The resident was transported to the hospital by ambulance.  Id.  At the hospital, Resident #1B underwent a CT scan that revealed “nondisplaced fractures of the right posterior arches of C1 and C2.”  Id. at 15.  However, X-rays were negative for acute fractures.  Id.

Petitioner’s Internal Investigation

Petitioner self-reported Resident #1B’s fall, faxing an initial report to IDPH on February 27, 2017.  CMS Ex. 37 at 5-6.  The initial report, signed by Petitioner’s administrator, stated:

On 2/26/17 at approximately 12:10 pm [Resident #1B] fell from his wheelchair while in the dining room before staff could reach him.  [Resident #1B] was transferred to Trinity Hospital

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for evaluation and treatment.  Diagnostic tests revealed non-displaced C1 and C2 fractures.  The facility was made aware of the injuries at 1:44 pm on 2/27/17.

Id. at 6.  Petitioner reported that its investigation was ongoing, and the following actions were taken:  1) Resident #1B underwent a nursing assessment; 2) Resident #1B’s family was notified; 3) Resident #1B’s physician was notified; and 4) Resident #1B was sent to the hospital.  Id.

Petitioner prepared a Fall Summary, which is undated and unsigned.  CMS Ex. 37 at 7-8.  The Fall Summary indicated that prior to Resident #1B’s fall, the following interventions were in place:  avoiding clutter; keeping call light and needed items within reach; providing incontinence care as needed; maintaining his bed in the lowest position; checking on him frequently to ensure safety interventions were in place; and using the chair/bed alarm.  Id. at 7.  The Fall Summary included the following “root cause analysis”:

After reviewing medical records and pre/post vital signs, interviews of staff and speaking with the IDT [Interdisciplinary Team,] it was determined that [the] incident may have been related to [an] episode of hypoglycemia.  [Resident #1B] had a history of persistent hypoglycemia prior to admission.  He was not receiving any oral/subcutaneous hypoglycemic agent therapy.  However, we were monitoring his blood glucose levels [before meals and at bedtime].

Id. at 8.

As part of its investigation, Petitioner collected statements from various staff members who may have witnessed the fall.  CMS Ex. 37 at 29-35.  Other than AA Hardnick, the staff members indicated they did not witness Resident #1B’s fall.  See CMS Ex. 37 at 30 (“At the time of the fall I was on my lunch break.”); Id. at 31 (“[I] was present in [the dining] room . . . on the other side passing trays[,] [w]hen I heard [the] sound of [a] patient alarm [and] falling.”); Id. at 32 (“I did not see anything.”); Id. at 33 (“I was at [the] nurses [sic] station at the time of [the] fall.”); Id. at 34 (“[I was] [p]ushing a resident into the big dayroom.”); Id. at 35 (“I was on the opposite side of the dining room. So I was not aware of [Resident #1B’s] fall.”).

March 7, 2017 State Investigation

On March 7, 2017, Surveyor Maul completed a complaint investigation at Petitioner’s facility regarding the self‑reported fall of Resident #1B from his wheelchair.  CMS Ex. 30; CMS Ex. 42 at ¶ 2.  As part of the survey process, Surveyor Maul interviewed

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members of Petitioner’s staff and reviewed records.  CMS Ex. 42 at ¶ 2; see also CMS Ex. 36; CMS Ex. 37.  Surveyor Maul made handwritten notes of the interviews at or about the times she conducted the interviews.  See CMS Ex. 36; CMS Ex. 42 at ¶ 2.  Surveyor Maul participated in preparing and writing the SOD.  CMS Ex. 42 at ¶ 3.  I find it more likely than not that Surveyor Maul’s notes accurately record the content of the interviews she conducted.

At or about 3:00 pm on March 2, 2017, Surveyor Maul interviewed AA Hardnick in person.  CMS Ex. 36 at 5-6.  According to Surveyor Maul’s notes, AA Hardnick stated that she was pulling another resident closer to the dining room table when she heard an alarm go off, looked up, and saw Resident #1B leaning toward the right.  Id. at 5.  AA Hardnick attempted to reach Resident #1B in order to reposition him, but was unable to reach him in time, and he fell out of his wheelchair to the floor.  Id.  AA Hardnick indicated that Resident #1B was seated on the “small” side of the dining room, which usually seats 22 residents.  Id.  At the time of the incident, AA Hardnick was the only staff member on the small side of the dining room.  Id.  She stated that “staffing varies from day to day in [the dining room at] lunch.”  Id.  Additionally, AA Hardnick indicated that she first met Resident #1B the day of the incident, and she “didn’t know anything about [him],” she never received a report or information related to Resident #1B, and only knew him by name.  Id.  AA Hardnick signed the statement on March 2, 2017, attesting that she affirmed “the truth and accuracy of the facts contained therein.”  Id.

At or about 3:56 pm on March 2, 2017, Surveyor Maul interviewed CNA Melissa Henderson by telephone.  CMS Ex. 36 at 2.  CNA Henderson stated that Resident #1B had been attempting to get out of his wheelchair multiple times that morning and should have been more closely monitored.  Id.  CNA Henderson further stated that Resident #1B had been leaning forward all morning “trying to pull off [a] bandage.”  Id.  CNA Henderson noted that she was passing trays on the “big side” of the dining room when she heard someone say that Resident #1B fell.  Id.  CNA Henderson indicated that she heard that Resident #1B’s blood sugar was low at the time of the incident, but Petitioner “might have known something was wrong with Resident #1B when he kept leaning forward to get [at his] bandage” and “[t]hey had to keep telling [him] not to lean forward.”  Id.  CNA Henderson stated there should have been a second staff member in addition to AA Hardnick monitoring the residents on the small side of the dining room, where Resident #1B was located.  Id.

At or about 1:34 pm on March 7, 2017, Surveyor Maul interviewed DON McKinney in person.  CMS Ex. 36 at 7.  DON McKinney stated that two CNAs and the activities assistant are assigned to the dining room, to assist with resident needs, including passing out water and repositioning.  Id.  DON McKinney further stated that at mealtimes, all staff, including licensed nurses (7-10 additional people) should be in the dining room assisting.  Id.

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At or about 1:49 pm on March 7, 2017, Surveyor Maul interviewed LPN Simone Stephens (LPN Stephens) by telephone.  CMS Ex. 36 at 12.  LPN Stephens stated that she was at lunch at the time of the incident.  Id.  LPN Stephens stated that she and another nurse completed the incident report related to Resident #1B’s fall.  Id.  LPN Stephens noted that Resident #1B was “always agitated, angry” and there was nothing unusual about the resident that day, it was his “usual baseline” behavior.  Id.  LPN Stephens further noted that she was “not surprised that [Resident #1B] fell because [Resident #1B is] always very agitated/angry.”  Id.  LPN Stephens indicated that she was surprised to learn that Resident #1B sustained a neck fracture, and “it must have been a horrible fall.”  Id.

As described in greater detail below, I conclude that the facts I have found above demonstrate that Petitioner was not in compliance with Medicare participation requirements.

2. Petitioner did not substantially comply with the Medicare participation requirements at 42 C.F.R. § 483.25(d)(1), (2) (Tag F323).

Subsection 483.25(d) is part of the quality of care regulation at 42 C.F.R. § 483.25.  The regulation provides that “[q]uality of care is a fundamental principle that applies to all treatment and care provided to facility residents.”  42 C.F.R. § 483.25.  Subsection 483.25(d) imposes specific obligations upon a facility related to accident hazards and accidents, as follows:

(d) Accidents. 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.

42 C.F.R. § 483.25(d)(1)-(2).  The present case involves allegations that Petitioner failed to comply with the obligation to provide adequate supervision.

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”)),

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aff’g Woodstock Care Ctr., DAB No. 1726 (2000).14   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).  The mere occurrence of an accident does not, by itself, prove that a facility provided inadequate supervision.  Lake Park Nursing and Rehab. Ctr., DAB No. 2035 at 8 (2006).  However, when “an accident does occur, the circumstances surrounding an accident (or apparent accident) may support an inference that the facility’s supervision of a resident was inadequate.”  Id. (citing St. Catherine’s Care Ctr. of Findlay, Inc., DAB No. 1964 (2005)).

As previously noted, CMS cited this deficiency after reviewing Resident #1A’s fall from her bed on December 29, 2016, and Resident #1B’s fall from his wheelchair on February 26, 2017.  CMS summarized the basis for the deficiency as follows:

Despite having assessed [Resident #1A and Resident #1B] as requiring extensive assistance, Symphony failed to adequately supervise two different residents involved in two separate accidents, both of whom fell and sustained seriously broken bones.

CMS Posthrg. Br. at 1.

Petitioner does not dispute that both residents experienced accidents.  Indeed, Petitioner has supplied multiple corroborating statements related to both residents’ falls.  Instead, Petitioner contends that its care of Resident #1A and Resident #1B complied with the regulatory requirements imposed by 42 C.F.R. § 483.25(d)(1), (2).  See P. Posthrg. Br.

As I explain in greater detail below, the record developed before me demonstrates that Petitioner did not take “all reasonable measures” to protect Resident #1A and Resident #1B from experiencing accidents.  See Briarwood Nursing Ctr., DAB No. 2115 at 11.  As such, Petitioner failed to “provide supervision and assistance devices that

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reduce known or foreseeable accident risks to the highest practicable degree, consistent with accepted standards of nursing practice.”  Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017) (internal quotation marks omitted) (citing Century Care of Crystal Coast, DAB No. 2076, at 6-7 (2007), aff’d sub nom Century Care of Crystal Coast v. Leavitt, 281 F. App’x 180 (4th Cir. 2008)).

Resident #1A

Petitioner argues that Resident #1A’s fall was unforeseeable, and Petitioner was “not required to do the impossible or be a guarantor against an unforeseeable occurrence.”  P. Posthrg. Br. at 4.  Petitioner maintains that there was “nothing that [Petitioner] could do to prevent [Resident #1A] from moving in her bed[;]” it could not restrain her, and it had already determined that side rails were no longer appropriate.  Id. at 5.  Petitioner further contends that, at the time of the fall, Resident #1A was lying in the middle of her bed, with the bed placed in the lowest position.  Id. at 6.  According to Petitioner, it was not inappropriate for staff to leave the room to summon a nurse because Resident #1A did not require supervision while in bed.  Id. at 8.  Petitioner also argues that CMS’s reliance on Resident #1A’s MDS assessment is misplaced because the MDS is a summary of the care provided in a past period, and Petitioner followed Resident #1A’s care plan.  Id. at 8-11.  Finally, Petitioner argues that I should disregard Surveyor Housh’s testimony as unreliable.  Id. at 12-15.  However, Petitioner’s arguments do not persuade me that Petitioner provided Resident #1A with adequate supervision and assistance under the circumstances.

First, Petitioner’s argument that it could not have foreseen that Resident #1A would fall from bed is belied by the fact that Petitioner assessed the resident as at risk for falls.  Resident #1A’s care plan with an initiation date of June 13, 2016, noted she had “[p]otential for falls,” was at risk for injury from falls, experienced weakness, unsteady gait, poor balance, and had poor safety awareness and impulsiveness.  CMS Ex. 17 at 22.  Since Resident #1A was unable to transfer from bed without assistance, I infer that her fall risk encompassed the risk that she might fall from her bed.  Further, the fact that Petitioner deemed it appropriate to remove the side rails from Resident #1A’s bed does not prove that she was incapable of any movement in bed.  See CMS Ex. 16 at 14.  It is entirely foreseeable that, if the resident were to move herself too close to the edge of her bed, she might be unable to reposition herself to keep from falling.  Indeed, this is precisely what Petitioner’s own investigation concluded had occurred.  See P. Ex. 11 at ¶ 4 (Nurse Suggs “determined that [Resident #1A] tried to move herself in her bed, causing her to get too close to the edge of her bed and to slip off the edge of her bed onto the floor.”).

Petitioner’s conclusion that Resident #1A fell because she tried to reposition herself is, in essence, an attempt to shift the blame for Resident #1A’s fall to the resident herself.  However, as I have described above, the regulations place on facilities such as Petitioner

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the responsibility to protect dependent residents from experiencing accidents.  As such, Petitioner’s claim that CNA Martin did not contribute to Resident #1A’s fall because she left the resident lying in the middle of the bed (P. Posthrg. Br. at 6) is largely immaterial because it is not a defense that the resident may have moved in her bed.  It is certainly foreseeable that if staff leave an alert resident unattended in the midst of toileting, the resident might feel uncomfortable and try to cover herself, for example.  Petitioner’s staff knew that Resident #1A was unable to reposition herself effectively, which made it more likely – not less so – that she might try unsuccessfully to reposition and lose her balance.  This was all the more true for a resident who Petitioner assessed as displaying poor safety awareness and impulsiveness, but who I infer valued her privacy and autonomy.  See CMS Ex. 17 at 22, 61; see also P. Ex. 8 at ¶ 9 (Resident #1A “was an independent woman who wanted to do as much as possible for herself”); P. Ex. 9 at ¶ 5 (same).

Second, Petitioner argues that I should not treat Resident #1A’s MDS assessment as equivalent to her care plan.  P. Posthrg. Br. at 8-10; see also P. Ex. 8 at ¶¶ 2, 3, 6, 7.  I understand that an MDS assessment serves a different purpose than a resident’s care plan.  Nevertheless, in the present case, the MDS assessment provides relevant information about Resident #1A’s condition and treatment needs because it was completed close in time to Resident #1A’s fall in December 2016.  See CMS Ex. 17 at 53 (observation end date 12/12/2016).  Petitioner points out that MDS coding instructions provide that the facility should code for the most dependent level of supervision that occurred at least three times during the look back period.  P. Posthrg. Br. at 9; see also P. Ex. 8 at ¶ 6.  Petitioner would have me infer, based on this instruction, that Resident #1A only required the assistance of two or more staff on three occasions during the look back period, but that she usually required the assistance of only one staff.  P. Posthrg. Br. at 10; see also P. Ex. 8 at ¶ 8.  Petitioner’s records do not fully bear out this assertion, however.

Instead, it is more accurate to state that Petitioner provided Resident #1A with two‑person assistance on at least three occasions during the look back period.  Throughout December 2016 Petitioner’s progress notes most frequently state that Resident #1A “requires 1-2 person staff assist with ADL care and transfer.”  CMS Ex. 17 at 112-117.  The entries do not establish whether Petitioner provided the assistance of one staff member or two staff members for Resident #1A on these occasions.  Based on the MDS assessment, combined with Petitioner’s progress notes, I find it more likely than not that two staff members assisted Resident #1A on more than three occasions.

Petitioner asserts that Resident #1A’s “Individual Care Service Plan” (service plan) stated that she required one-person assistance for bed mobility when turning side-to-side, “as during incontinence care.”  P. Posthrg. Br. at 11; see also CMS Ex. 26 at 16.  From the entry in the resident’s service plan, Petitioner would have me infer that Resident #1A required the same level of assistance with bed mobility as with incontinence care.  P. Posthrg. Br. at 11.  However, while the service plan addresses ADLs generally, it does

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not specify the level of assistance required for toileting, which is an ADL distinct from bed mobility.  See CMS Ex. 26 at 16-17; see also CMS Ex. 17 at 63.

By contrast, Resident #1A’s MDS assessment documented that she was totally dependent on staff and required the assistance of two+ persons for toileting.  CMS Ex. 17 at 63.  This portion of the assessment strongly supports an inference that Resident #1A required the assistance of two staff for toileting at the time of her fall because the MDS instrument instructs that the code for “total dependence” applies when the activity requires “full staff performance every time during the entire 7-day period.”  Id. (emphasis added).  I therefore find it more likely than not that Resident #1A required the assistance of two persons for toileting on December 29, 2016, the date of her fall.

Based on Resident #1A’s MDS assessment, Petitioner had reason to know that staff should not leave Resident #1A alone in the middle of toileting.  Nevertheless, the record establishes that CNA Martin was providing incontinence care unassisted when Resident #1A fell.  Had another staff member assisted CNA Martin when she was providing incontinence care to Resident #1A on December 29, 2016, the second staff member could have supervised the resident while CNA Martin left the room to summon a nurse to change the resident’s soiled dressing.

Third, even if Petitioner’s care of Resident #1A was consistent with her care plan, I agree with CMS that the care plan did not include all interventions needed to protect the resident from falls.  See CMS Posthrg Br at 4.  Resident #1A’s care plan listed the following fall prevention measures:  getting to know Resident #1A’s needs; checking on her frequently; keeping her area clutter free; and having the call light and commonly used items within reach.  CMS Ex. 17 at 22.  These interventions appear to be largely generic and do not specifically address the level of supervision the resident required to keep her safe during ADL care.  Even if I consider Resident #1A’s service plan as part of her care plan, that document did not reflect her need for at least two persons to assist with toileting.  CMS Ex. 26 at 16-17.  Had Petitioner care planned for this intervention, the fall might have been avoided.

Petitioner protests that CMS did not cite a deficiency for Petitioner’s care planning process.  P. Posthrg. Br. at 9.  However, if a flaw in Resident #1A’s care plan resulted in Petitioner providing inadequate supervision to prevent an accident, then CMS was authorized to cite a deficiency under 42 C.F.R. § 483.25(d)(2).  See Brian Ctr. Health and Rehab./Goldsboro, DAB No. 2336, at 6 (2010) (“If a given set of facts demonstrates that a SNF has violated more than one participation requirement, CMS may, in its discretion, charge the SNF with violating any, or all, of the applicable requirements.”).

Fourth, Petitioner’s critique of Surveyor Housh is immaterial to my decision, because I have reviewed the evidence de novo.  See Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 33 (2011) (“the quality of the surveyors’ information gathering or

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thought processes is immaterial.”).  Moreover, whatever may be in a surveyor’s mind when he or she decides to cite a deficiency, that initial decision is merely a recommendation to CMS.  See, e.g., Britthaven of Chapel Hill, DAB No. 2284 at 6-7 (2009) (state agency merely recommends a finding of compliance or noncompliance; CMS ultimately determines whether the facility is in substantial compliance).  Therefore, I do not evaluate the quality of surveyor Housh’s thought processes during (or after) the survey.

Finally, Petitioner’s implication that it could not keep Resident #1A safe short of restraining her is no more than a straw man.  As I have stated above, Petitioner could have provided two-person assistance during incontinence care.  Alternatively, CNA Martin could have used Resident #1A’s call light to summon a nurse, rather than leaving the resident unattended.  Therefore, despite Petitioner’s arguments to the contrary, it did not take “all reasonable measures” to protect Resident #1A from experiencing an accident.  See Briarwood Nursing Ctr., DAB No. 2115 at 11.  As a result of her fall, Resident #1A fractured her clavicle.  Thus, Petitioner’s noncompliance was substantial because it caused actual harm to the resident.

Resident #1B

CMS argues that Petitioner did not provide adequate supervision to prevent Resident #1B’s fall from his wheelchair on February 26, 2017.  CMS Posthrg. Br. at 13‑16.  Petitioner disagrees, arguing that Resident #1B’s fall was unforeseeable; that Resident #1B had no history of falls; and that Petitioner followed Resident #1B’s care plan and provided him with the proper level of supervision.  P. Posthrg. Br. at 16-20.  In particular, Petitioner argues that it could not have foreseen that Resident #1B would experience an episode of hypoglycemia, causing him to fall:

There was no reason for [Petitioner] to suspect that [Resident #1B’s] blood sugar level was low before his fall because his level was stable before the fall and he was not exhibiting any objective signs of low blood sugar.

P. Posthrg. Br. at 17.

Petitioner’s assertion that Resident #1B’s fall was unforeseeable because he had no history of falls is not entirely accurate.  While Petitioner submitted written direct testimony attesting that the resident had no prior falls at Petitioner’s facility (see, e.g., P. Ex. 13 at ¶ 7), on admission Petitioner completed a fall risk screen for Resident #1B that documented he had fallen 1-2 times in the last six months.  CMS Ex. 37 at 52.  Thus, Petitioner itself assessed Resident #1B as at high risk for falls based, in part, on his history of falls prior to admission.  Id. at 52-53; see also P. Posthrg. Br. at 16.

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In addition, it was foreseeable that Resident #1B might fall due to his behavior of attempting to transfer and ambulate without assistance, which was not easily redirected. See CMS Ex. 37 at 44.  Consistent with the resident’s care plan, Petitioner’s progress notes documented that the resident tried to get up without assistance on several occasions prior to his fall on February 26, 2017.  See id. at 39 (2/23/2017 22:26), 41 (2/18/2017 22:12), (2/19/2017 18:36).

Further, Petitioner’s investigation of Resident #1B’s fall concluded that it was likely caused by an episode of hypoglycemia.  See, e.g., CMS Ex. 37 at 8.  Although Petitioner argues that it had no reason to suspect that the resident’s blood sugar was low prior to the fall (P. Ex. 13 at ¶ 4), Petitioner should have been aware that Resident #1B could experience hypoglycemia at any time.  During the hospital stay immediately prior to Resident #1B’s admission to Petitioner’s facility, the resident’s blood glucose levels were in the 60’s, and he likely experienced weakness as a result.  CMS Ex. 37 at 27-28.  At Petitioner’s facility, on February 25, 2017, the day before the resident’s fall, Resident #1B’s blood sugar was 50, and he required a glucagon injection.  Id. at 37.

Moreover, although Petitioner’s witness stated that staff were monitoring Resident #1B’s blood sugar levels (P. Ex. 13 at ¶ 4), the documented blood sugar checks were not as frequent or consistent as ordered.  On February 23, 2017, Resident #1B’s physician ordered “Accu check before meals and at bedtime.”  CMS Ex. 37 at 39 (2/23/2017 13:33).  Per this order, Petitioner should have checked Resident #1B’s blood sugar at least four times per day.  However, a “Weights and Vitals Summary” printout from February 27, 2017, documented only one blood sugar reading for February 23, 2017; no readings for February 24, 2017; and two readings for February 25, 2017.15   Id. at 19.

Petitioner also should have been aware that Resident #1B’s blood sugar could fluctuate based on his poor appetite or refusal to eat.  Indeed, on February 26, 2017, at 11:55 a.m., shortly before Resident #1B fell from his wheelchair, LPN Stephens noted “Resident . . . [r]efusing meals and nutritional supplements.  Resident offered juice and refused.”16   CMS Ex. 37 at 37.  According to the resident’s progress notes, he refused medications and had poor appetite on multiple occasions.  Id. at 38 (refused medications 02/24/2017

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at 13:37) (02/24/2017 at 16:59 staff informed resident’s son of poor oral intake and refusal to take medications); 39-40 (poor appetite 2/22/2017 at 12:37, 19:42); 41 (poor appetite 2/19/2017 at 12:36, 18:35).  Consistent with these notes, LPN Stephens testified, on written direct, that Resident #1B “sometimes refused his medication and meals despite redirection and encouragement.”  P. Ex. 14 at ¶ 3.

Regarding the events of February 26, 2017, when interviewed by Surveyor Maul on March 2, 2017, CNA Henderson stated that Resident #1B had been attempting to get out of his wheelchair multiple times on the morning of February 26, 2017.  CMS Ex. 36 at 2.  CNA Henderson further stated that Resident #1B had been “leaning forward all morning” trying to pull off a bandage.  Id.

In her written direct testimony, AA Hardnick explained that the dining room on Resident #1B’s floor is “partially divided into a large area and a smaller area.”  P. Ex. 12 at ¶ 4.  AA Hardnick was on the “small side of the dining room with [Resident #1B]” on February 26, 2017.  Id. at ¶ 2.AA Hardnick estimated that there were usually 22 residents seated in that side of the dining room.  CMS Ex. 36 at 5.  AA Hardnick stated that there were “several staff” in the dining room at the time of the resident’s fall.  P. Ex. 12at ¶ 4.  She observedResident #1B prior to his fall, and he was “sitting in his wheelchair and appeared calm.  He was not agitated, trying to get up unassisted, or reaching for a bandage on his foot.”  Id. at ¶ 5.  AA Hardnick indicated that Resident #1B had a chair alarm in place, she heard his alarm, immediately looked up and saw the resident leaning to one side.  Id. at ¶ 6.  She asserted that it took her under five seconds to reach Resident #1B, but by the time she reached him, he had fallen to the floor.  Id. at ¶¶ 6, 7.

According to CNA Henderson’s written direct testimony, she was in the dining room at the time of the incident, but she was in the larger side of the dining room and did not go into the small side of the dining room, nor did she see Resident #1B prior to the incident.  P. Ex. 15 at ¶¶ 4, 6.  She explained that when she told the surveyor that there should have been another staff member with AA Hardnick, she meant that she “thought there was another CNA with [AA Hardnick].”  Id. at ¶ 7. Additionally, CNA Henderson stated that “[m]ost of the CNAs were in the dining room during lunch.”  Id. at ¶ 8.

Although CNA Henderson and AA Hardnick both testified that there were multiple staff members in the dining room at the time Resident #1B fell, neither of them contradicted Surveyor Maul’s conclusion that AA Hardnick was the only staff member in the smaller side of the dining room at the time of the fall.  See CMS Ex. 42 at ¶ 8 (page 4); see also CMS Ex. 36 at 5.  I agree with CMS’s assertion that a single employee could not effectively supervise 22 residents.  See CMS Posthrg. Br. at 14, 16.  In addition, as AA Hardnick admitted, she did not know Resident #1B well.  P. Ex. 12 at ¶ 5; see also CMS Ex. 36 at 5 (she didn’t know anything about the resident; only knew him by name).  Because AA Hardnick did not know Resident #1B’s diagnoses or history, she would not

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know that his refusal to eat might lead to hypoglycemia, which might, in turn, lead him to experience dizziness or to become unconscious and to fall.  Further, as she was assisting another resident at the time Resident #1B’s chair alarm sounded, she could not reach him in time to prevent his fall.  For these reasons, Petitioner’s supervision of Resident #1B was inadequate.

In summary, facility staff did not take all reasonable steps to avoid Resident #1B’s accident.  The accident resulted in actual harm to Resident #1B who sustained fractures of the right posterior arches of C1 and C2.  CMS Ex. 37 at 15.  Because Petitioner’s noncompliance caused actual harm to a resident, indeed, to two residents, Petitioner was not in substantial compliance with the participation requirement.  Because I have concluded that Petitioner did not comply substantially with 42 C.F.R. § 483.25(d)(1), (2) (Tag F323), CMS was authorized to impose an enforcement remedy.  In the following section of this decision, I consider whether the CMP imposed is reasonable.

3. A CMP of $505 per day beginning January 6, 2017 and continuing through March 21, 2017, is reasonable in amount and duration.

I evaluate whether a CMP is reasonable by applying the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  The absence of culpability is not a mitigating factor.  The factors listed in § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  Unless a facility contends that a particular regulatory factor does not support the CMP amount that CMS proposed, the administrative law judge must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).

The regulations specify that a per-day CMP will fall into one of two ranges of penalties.  42 C.F.R. §§ 488.408, 488.438.  The upper range of a CMP, $6,394 to $20,965 per day, is reserved for deficiencies that pose immediate jeopardy to a facility’s residents and, in some circumstances, for repeated deficiencies.  42 C.F.R. § 488.438(a)(1)(i), (d)(2).17   The lower range of a CMP, $105 to $6,289 per day, is reserved for deficiencies that do not pose 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)(1)(ii).  In assessing the reasonableness of a CMP amount, an administrative

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law judge considers the per-day amount, rather than the total accrued CMP.  See Kenton Healthcare, LLC,DAB No. 2186 at 28 (2008).  The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the administrative law judge, requiring only that the regulatory factors at sections 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) and (3); Alexandria Place,DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC,DAB No. 2186 at 28-29.

In this case, CMS imposed a $505 per-day CMP for 75 days beginning January 6, 2017 and continuing through March 21, 2017.  Because I have determined that Petitioner was out of substantial compliance at the non-immediate jeopardy level, I determine de novo whether a CMP of $505 per day for 75 days of noncompliance (January 6, 2017, through March 21, 2017) is reasonable, based on the factors enumerated in the regulations.

Applying the regulatory factors, I find that Petitioner’s noncompliance in this case was serious, in that Resident #1A sustained a fractured clavicle when she fell from her bed, and that Resident #1B sustained fractures of the right posterior arches of C1 and C2 when he fell from his wheelchair.  See CMS Ex. 17 at 27, 31; CMS Ex. 37 at 15.  The $505 per‑day CMP that CMS imposed is less than ten percent of the maximum CMP that is authorized for deficiencies that do not pose immediate jeopardy to resident health and safety ($6,289 per day).  42 C.F.R. § 488.438(a)(1)(i), (d)(2).  I find that a CMP in the lower end of the range for non‑immediate jeopardy deficiencies is reasonable based on the seriousness of the noncompliance alone.  Indeed, given the serious consequences both residents experienced as a result of Petitioner’s noncompliance, the CMP amount is modest.  I therefore find that a per-day CMP of $505 is reasonable in amount.

Petitioner argues that even if the deficiencies were sustained, the duration of the CMP is excessive:

CMS found that [Petitioner] achieved substantial compliance after the January 6, 2017 survey on January 30, 2017. This was the same date that [Petitioner] completed its plan of correction. There were three surveys between the January 6 and March 7 surveys—on January 19, February 16, and March 2—and each of them found no deficiencies. Those three surveys proved that Symphony had achieved and maintained substantial compliance no later than January 30, 2017.

P. Posthrg. Br. at 20-21 (internal citations omitted).

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Petitioner’s argument lacks merit, and indeed misrepresents IDPH’s findings for the January 19, February 16, and March 2, 2017 surveys.  The notices clearly state, “as a result of that survey, NO ADDITIONAL DEFICIENCIES were identified . . . .  However, outstanding deficiencies continue to exist as identified in the Initial Notice previously sent to the facility.”  See CMS Ex. 2; CMS Ex. 6; CMS Ex. 8 (all caps in originals).  Petitioner could not have achieved substantial compliance by January 30, 2017, since the February 16, 2017 survey found that, while there were no additional deficiencies, there were still outstanding deficiencies from past surveys.  It is apparent that Petitioner could not have achieved substantial compliance by January 30, 2017 if it continued to have outstanding deficiencies from the prior survey.

Moreover, “the period of noncompliance continues until the facility affirmatively demonstrates a return to substantial compliance.”  Ridgecrest Healthcare Ctr., DAB No. 2493 at 15 (2013), (citing Premier Living & Rehab. Ctr., DAB No. 2146 at 23 (2008); Lake City Extended Care, DAB No. 1658 at 12-15 (1998)).  The burden is on the facility to prove that it is back in compliance, not on CMS to prove that deficiencies continued to exist.  Asbury Care Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002).  The facility must show that the incidents of noncompliance have ceased and that it has implemented appropriate measures to ensure that similar incidents will not recur.  Libertywood Nursing Ctr., DAB No. 2433 at 15 (2011), (citing Life Care Ctr. of Elizabethton, DAB No. 2367 at 16 (2011)); accord 42 C.F.R. § 488.456(a) and (e).  A facility’s return to substantial compliance usually must be established through a resurvey.  42 C.F.R. § 488.454(a); Ridgecrest, DAB 2493 at 2-3.

Although Petitioner contends that a Post-Certification report established that it returned to substantial compliance on January 30, 2017, the report is unsigned and undated, and identifies a revisit date of April 10, 2017.  See P. Ex. 2 at 3.  Additionally, the April 24, 2017 letter accompanying the Post-Certification report states, “[f]ollowing a Complaint Investigation revisit to the facility on March 7, 2017, it was determined that the facility continued to not be in ‘Substantial Compliance’ with the regulations and remedies were imposed and recommended . . . .”  P. Ex. 2 at 1 (bold font omitted).  IDPH further stated that it conducted a re-inspection of Petitioner’s facility on April 10, 2017, and as a result of the re-inspection, IDPH found that Petitioner was eligible for continued participation in Medicare.  Id.  IDPH recommended that all imposed remedies be discontinued effective March 22, 2017.  Id.  I therefore find, by a preponderance of the evidence, that CMS established, based on the IDPH revisit survey conducted April 10, 2017, that Petitioner had returned to substantial compliance as of March 22, 2017.  Accordingly, I find that the duration of the CMP, from January 6, 2017, and continuing through March 21, 2017, is reasonable.

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VI. Conclusion

For the reasons stated in this decision, I sustain CMS’s determinations.  I conclude that Petitioner was not in substantial compliance with the participation requirements at 42 C.F.R. § 483.25(d)(1)-(2) (Tag F323).  A CMP of $505 per day for 75 days for a total of $37,875.00, is reasonable in amount and duration.

1. I apply the regulations in effect at the time of the survey. Carmel Convalescent Hosp., DAB No. 1584 at 2 n.2 (1996). Both the state agency and CMS identified the regulatory participation requirement corresponding with Tag F323 as 42 C.F.R. § “483.25(d)(1)(2)(n)(1)-(3)” which presumably refers to two separate accident prevention provisions found in 42 C.F.R. § 483.25: subsection 483.25(d)(1)-(2), pertaining to accident prevention, supervision, and assistance devices, and subsection 483.25(n)(1)-(3), pertaining to the use of bed rails. CMS Exhibit (Ex.) 10 at 1; see CMS Exs. 11, 25. Because none of the deficiencies at issue concern the use of bed rails, subsection 483.25(n)(1)-(3) is irrelevant, and I do not further address this provision.
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2. To protect the privacy of the residents and the residents’ families, I refer to the residents by modified identifiers. The state agency identified the resident at issue in each survey as “Resident 1,” although the identifier refers to two different individuals. See CMS Ex. 14 (resident key for the January 6, 2017 survey); CMS Ex. 32 (resident key for the March 7, 2017 survey). To avoid confusion, I refer to the resident cited in the January 6, 2017 survey as Resident #1A, and to the resident cited in the March 7, 2017 survey as Resident #1B.
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3. The January 6, 2017 survey found that Petitioner’s noncompliance with 42 C.F.R. § 483.25(d)(1) (2) (Tag F323) was at scope and severity (S/S) level G. CMS Ex. 11 at 1. S/S G corresponds to isolated noncompliance that causes actual harm that is not immediate jeopardy. The March 7, 2017 survey determined that Petitioner’s noncompliance with Tag F323 was at S/S level D. CMS Ex. 30 at 1. S/S D corresponds to isolated noncompliance that does not cause actual harm, but has the potential to cause more than minimal harm.
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4. The CMP ranges listed in the regulations are adjusted annually for inflation as provided in 45 C.F.R. part 102. The annual adjustment was effective February 3, 2017. 82 Fed. Reg. at 9174. In January 2017, when the state agency conducted the first survey at issue, the range for a per-day CMP imposed for non-immediate jeopardy level deficiencies was $103 – $6,188. 81 Fed. Reg. 61,538, 61,557 (Sept. 6, 2016).
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5. Some of Petitioner’s records suggest that Resident #1A’s pressure ulcer was on her heel. See, e.g., CMS Ex. 17 at 71, 95. However, I find it is more likely than not that the pressure ulcer was on the resident’s coccyx. Petitioner assessed Resident #1A as having a stage IV pressure ulcer to her coccyx on admission. Id. at 44. Resident #1A’s Minimum Data Set (MDS) assessment with assessment reference date of December 12, 2016, documented that the resident had a single stage IV pressure ulcer that had been present since her admission. Id. at 53, 77. Petitioner’s progress notes documented that, as of December 10, 2016, treatment was “in progress to coccyx area.” Id. at 115-16. Finally, as described in greater detail below, Resident #1A had a wound dressing that became soiled when she was incontinent. Id. at 27-29.
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6. Petitioner did not record the resident’s score on the Admission Fall Risk form. See CMS Ex. 17 at 42. However, I note that the total score for the items checked is 13. Id. The form states, “[s]core of 10 or higher represents a high risk for falls.” Id.
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7. BIMS scores are categorized into 3 levels: intact/borderline cognition (13–15), moderate cognitive impairment (8–12), and severe cognitive impairment (0–7). See, e.g., Kali S. Thomas et al., The Minimum Data Set 3.0 Cognitive Function Scale, 55 Med. Care e68, e69 (2017) (online article), available at https://insights.ovid.com/crossref?an=00005650-201709000-00011 (last visited July 15, 2021). Thus, Resident #1A’s BIMS score of 12 indicates that her cognition was on the borderline between intact cognition and moderate cognitive impairment.
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8. Resident #1A’s care plan dated June 18, 2014, noted that Resident #1A had a fall risk score of 11. CMS Ex. 17 at 24. Further, her fall risk score on admission was 13. Id. at 42. It is unclear why Resident #1A’s fall risk scores would decrease, given that her risk factors appear to have remained unchanged. Moreover, I would expect the fall she sustained on December 29, 2016, to have raised her fall risk score based on history.
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9. In contrast, on Petitioner’s fall event log, signed by one of Petitioner’s nurses on January 5, 2017, checked “No” in response to the question “[d]id the resident hit their head.” CMS Ex. 17 at 36, 39; cf id. at 102 (progress note for 12/20/2016 at 07:27 indicating Resident #1A has a hematoma to the right side of her head).
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10. Despite having affirmed that the surveyor’s notes were accurate, CNA Martin stated in her written direct testimony that the statement of deficiencies “is incorrect where it says that I did not know whether [Resident #1A] was in the middle of her bed. I told the surveyor that I was sure that [Resident #1A] was in the middle of the bed when I went to get the nurse.” P. Ex. 10 at 2 (¶ 10).
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11. See n.8, supra.
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12. I infer that the “alarm” to which the care plan refers is the chair alarm described in P. Ex. 13 at ¶ 6. See also P. Posthrg. Br. at 16.
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13. Petitioner’s witness, Eric Walker, LPN, testified on written direct that “glucagon is a hormone that is produced by alpha cells in the pancreas, the effects of which are the opposite of the effects induced by insulin. The two hormones work in partnership with each other to keep blood glucose levels balanced.” P. Ex. 13 at ¶ 5.
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14. In 2016, CMS issued a final rule that re-designated and revised the provisions of 42 C.F.R. Part 483. See Final Rule, Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68,688, 68,828 (Oct. 4, 2016). Prior to 2016, the content of subsections 483.25(d)(1) and (2) was codified at subsections 483.25(h)(1) and (2). Many of the decisions cited in this discussion section interpreted 42 C.F.R. § 483.25(h)(1) and (2). I find it appropriate to rely on the reasoning of these decisions in the present case because there was no substantive change to the language when 42 C.F.R. § 483.25(h)(1) and (2) were re codified as § 483.25(d)(1) and (2).
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15. For reasons that are unexplained in the record, the blood sugar readings of 50 and 240 from February 25, 2017 do not appear on the Weights and Vitals Summary. Compare CMS Ex. 37 at 37 (2/25/2017 16:00, 16:40) with id. at 19.
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16. In her written direct testimony, LPN Stephens stated that “she gave Resident #1B his scheduled dose of Seroquel at 9:00 a.m. . . . [and a]fter 9:00 a.m. on February 26, 2017, R1 did not display any further non-compliant behaviors.” P. Ex. 14 at ¶ 4. This statement appears inconsistent with her contemporaneous note that the resident was refusing to eat at 11:55.
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17. As noted above, the CMP ranges listed in the regulations are adjusted annually for inflation under 45 C.F.R part 102. See n.4 supra.
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