Wells LTC Partners, Inc., DAB CR5935 (2021)

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DECISION

This Medicare case involves an exceptionally impaired and combative resident of a long-term-care facility.  I consider the facility’s obligation to follow her care plan and its own policies in responding to her expressions of pain and unexplained injury.  

Wells LTC Partners, Inc., is a long-term-care facility located in Wells, Texas, that participates in the Medicare program.  Following a complaint investigation, completed February 14, 2019, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and imposed a per-instance civil money penalty (CMP) of $21,393.  Petitioner has appealed, and CMS moves for summary judgment.  

For the reasons set forth below, I grant CMS’s motion; the undisputed evidence establishes that facility was not in substantial compliance with Medicare program requirements, specifically 42 C.F.R. §483.25, and that the penalty imposed is reasonable.

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Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act §1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.  

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act §1864(a); 42 C.F.R. §488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys.  Facilities must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).

In this case, surveyors from the Texas Department of Aging and Disability (state agency) went to the facility to investigate a complaint, completing the investigation on February 14, 2019.  CMS Ex. 5.  Based on their findings, CMS determined that the facility was not in substantial compliance with two Medicare participation requirements:

• 42 C.F.R. § 483.10(g)(14) and (15) (Tag F580) (resident rights - information and communication: notification of changes and admission to a composite distinct part) cited at scope and severity level J (isolated instance of substantial noncompliance that poses immediate jeopardy to resident health and safety);
• 42 C.F.R. § 483.25 (Tag F684 – quality of care), cited at scope and severity level J.

CMS Exs. 5, 6.1

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Thereafter, CMS determined that the facility returned to substantial compliance on February 15, 2019.  

Based on the deficiency cited under section 483.25, CMS has imposed against the facility a per-instance penalty of $21,393.  CMS Ex. 6.

Petitioner appeals, and CMS has moved for summary judgment.  

The parties have filed pre-hearing briefs (CMS Br.; P. Br.).  With its brief, CMS submitted 13 exhibits (CMS Exs. 1-13).2 With its brief, Petitioner submitted 27 exhibits (P. Exs. 1-27).  CMS subsequently filed a motion for summary judgment (CMS MSJ), and Petitioner responded with a brief in opposition (P. Opp.).  Petitioner objected to CMS Exs. 4, 5, 8, 9, 10, 11, 13, and, conditionally, to CMS Exs. 6 and 7, arguing that some of these documents are irrelevant; some contain hearsay (which, in any event, is admissible – see 42 C.F.R. § 498.61); and some include legal conclusions.  Although I must consider all proffered evidence to determine whether it creates a material fact in dispute, in deciding this case on summary judgment, I need not rule on the parties’ objections to exhibits.  Lilia Gorovits, M.D., P.C., DAB No. 2985 at 3 n.4 (2020), aff’d, Gorovits v. Becerra, 20-1850 (E.D. Pa. May 17, 2021); Ill. Knights Templar Home, DAB No. 2274 at 6-7 (2009). 

Issues

As a threshold matter, I consider whether summary judgment is appropriate.  

On the merits, the issues are:

• Was the facility in substantial compliance with 42 C.F.R. § 483.25; and
• If the facility was not in substantial compliance with section 483.25, is the penalty imposed – $21,393 per-instance – reasonable.  

Immediate jeopardy.  I have no authority to review the immediate jeopardy determination.  I may review CMS’s scope and severity findings (which include immediate jeopardy) if:  1) a successful challenge would affect the range of the CMP; or 2) CMS has made a finding of substandard quality of care that results in the loss of

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approval of a facility’s nurse aide training program.  42 C.F.R. §§ 498.3(b)(14), 498.3(d)(10); NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7 (2014); Cedar Lake Nursing Home, DAB No. 2344 at 9 (2010); Heritage Park Rehab. and Nursing Ctr., DAB No. 2231 at 15-16 (2009); Evergreen Commons, DAB No. 2175 (2008); Aase Haugen Homes, Inc., DAB No. 2013 (2006).  

For a per-instance penalty, the regulations provide only one range (at the time the penalty was imposed, the range was from $2,140 to $21,393), so the level of noncompliance here does not affect the range of the CMP.  42 C.F.R. §§ 408(d), 488.438(a)(2); 45 C.F.R. § 102.3; 84 Fed. Reg. 59549 (Nov. 5, 2019). 3

If I approve a penalty of $10,697 or more, as I do here, CMS’s scope and severity finding will not affect approval of the facility’s nurse aide training program, assuming that it has one.  Under the statute and regulations, the state agency cannot approve the program if CMS imposes a penalty of $10,697 or more.  The facility thus loses its approval without regard to the immediate jeopardy finding.  Act §1819(f)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv); 84 Fed. Reg. 59549, 59559.

Discussion

Summary judgment.  Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4, and cases cited therein.

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. Dep’t of Health & Human Servs., 388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex, 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  The non-moving party may not simply rely on denials but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 

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(2003).  In doing so, the non-moving party must show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6 (2015), aff’d, W. Tex. LTC Partners, Inc. v. U.S. Dep’t of Health & Human Servs., 843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 475 U.S. at 587).

In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Heritage House of Marshall Health & Rehab., DAB No. 3035 at 8 (2021); Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); see also Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions.  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6-7; cf. Guardian Health Care Ctr., DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”); see Green Valley Health Care & Rehab. Ctr., DAB No. 2947 at 8 (2019), quoting Johnson v. Perez, 823 F. 3d, 701, 705 (D.C. Cir. 2016) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”).

Summary judgment applied to administrative review in Medicare cases.4  It is well-established that an administrative law judge is empowered to decide a case on summary judgment, without an evidentiary hearing. Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).  Nevertheless, there seems to be some

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confusion about applying such well-founded principles of civil litigation to these proceedings, with some suggesting that doing so denies a party a fundamental right.  In one succinct observation, Judge Posner of the Seventh Circuit Court of Appeals gave lie to such misapprehensions:  “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (emphasis added). 

In Fal-Meridian, the Seventh Circuit considered specifically the appropriateness of granting CMS summary judgment in a nursing home case involving (then) section 483.25(h) (now section 483.25(d)).5 The court sustained the administrative law judge’s granting summary judgment in CMS’s favor because the petitioner/nursing home did not tender “evidence that, if believed, would show that it had done everything possible (within the meaning of the regulation) to minimize the risks of an accident.”  Fal-Meridian, 604 F.3d at 451.

Here, Petitioner argues that summary judgment is not appropriate because this case “can be synthesized to a ‘reasonableness’ test.”  P. Opp. at 2.  According to Petitioner, the proper inquiry here is whether the facility’s actions were “reasonable” or “appropriate under the circumstances,” which “epitomize” fact questions, not questions of law that can be resolved on summary judgment.  P. Opp. at 3.  

The Departmental Appeals Board recently rejected this argument, finding that it misstates the relevant legal standard.  The Board explained that “reasonable care,” a tort standard, does not apply to cases, such as this, where the issue is compliance with regulatory standards.  Heritage House of Marshall Health and Rehab., DAB No. 3035 at 9.

Under the regulations, a facility must provide to each resident “the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.”  42 C.F.R. § 483.25; see also Social Security Act § 1819(b).  To this end, the Board has repeatedly held that the requirements under section 483.25 “obligate the [facility] to furnish care and services set forth in a resident’s care plan, to implement doctors’ orders, to monitor and document the resident’s condition, and . . . to follow its own resident care policies.” Good Shepherd Home for the Aged, Inc., d/b/a The Good Shepherd Home, DAB No. 2858 at 12 (2018).

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(citing Life Care Ctr. of Bardstown, DAB No. 2479, at 22 (2012) (citing cases), aff’d, 535 F. App’x 468 (6th Cir. 2013)); Woodland Village Nursing Ctr., DAB No. 2053 at 9 (2006) (citing cases), aff’d 239 F. App’x 80 (5th Cir. 2007).  The Board (and ALJ) may “rely on facility policy as evidence of the provider’s own judgment as to what must be done to attain or maintain its residents’ highest practicable physical, mental, and psychosocial well-being, as required by section 483.25.”  Senior Rehab., DAB No. 2300 at 13 (quoting Sheridan Health Care Ctr., DAB No. 2178 at 15 (2008)).

Id. at 10.  See also Guardian Health Care Ctr., DAB No. 1943 at 11 (characterizing as “conclusory in nature” claims that the facility provided “effective,” “appropriate,” or “aggressive” interventions.).  “Conclusory” statements that are unsubstantiated by evidence of specific facts are insufficient to create a genuine factual dispute.  Id.

The dispositive facts of this case cannot be disputed because they are literally written into the facility policies and the resident’s medical record:  the assessments, the instructions set out in the resident’s care plan, staff observations, and documentation of the actions that the staff took.  Viewing this record and drawing all reasonable inferences in Petitioner’s favor, no rational trier of fact could conclude that the facility complied substantially with section 483.25. 

1. CMS is entitled to summary judgment because the undisputed evidence establishes that staff did not follow the facility policies or the resident’s care plan in responding to her expressions of pain and an unexplained injury, which puts the facility out of substantial compliance with 42 C.F.R. § 483.25.6

Program requirement:  42 C.F.R. § 483.25 (Tag F684).  As an overarching proposition, the Medicare statute and the “quality-of-care” regulation mandate that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  Act § 1819(b)(2); see 42 C.F.R. § 483.20 (requiring the facility to conduct, initially and periodically, a comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity); 42 C.F.R. § 483.21(b) (requiring the facility to develop and implement a comprehensive, person-centered care plan for each resident, consistent with the resident’s rights, that includes measurable objectives and timeframes to meet a resident’s medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment).

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The quality-of-care requirements assume that the facility is capable of assessing each resident’s needs and of planning and providing care and services to meet those needs.  Sheridan Health Care Ctr., DAB No. 2178; Spring Meadows Health Care Ctr., DAB No. 1966 at 16 (2005).  The regulation imposes on the facility “an affirmative duty designed to achieve favorable outcomes to the highest practicable degree.”  Windsor Health Care Ctr., DAB No. 1902 at 16-17 (2003), aff’d, Windsor Health Care v. Thompson, No. 04-3018 (6th Cir. 2005).  The facility must take “reasonable steps” and “all practicable measures to achieve that regulatory end.”  Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F. App’x 900 (6th Cir. 2005), citing Josephine Sunset Home, DAB No. 1908 at 14 (2004).

The Board has repeatedly held that section 483.25 requires facilities to furnish the care and services set forth in a resident’s care plan and to implement doctors’ orders.  See, e.g., Alexandria Place, DAB No. 2245 (2009) (failure to provide care in accordance with the doctor’s order); Kenton Healthcare, LLC, DAB No. 2186 (2008) (failure to follow standards in the care plan for supervision); Spring Meadows Health Care Ctr., DAB No. 1966 at 17 (holding that failure to follow a resident’s care plan presents one of “the clearest case[s] of failure to meet [section 483.25]”;  St. Catherine’s Care Ctr. of Findley, Inc., DAB No. 1964 at 13 n.9 (2005) (holding that the facility’s admission that it failed to follow its own care plan may make summary judgment appropriate).  

The quality of care provision implicitly imposes on facilities a duty to provide care and services that, at a minimum, meet accepted professional standards of quality.  See Sheridan Health Care Ctr., DAB No. 2178 at 15; Spring Meadows Health Care Ctr., DAB No. 1966 at 17.

42 C.F.R. § 483.10(g)(14) (Tag F580).  Although CMS accurately (see discussion below) determined that the facility was not in substantial compliance with section 483.10(g)(14), it opted not to impose a penalty for substantial noncompliance with that regulation.  

Under section 483.10(g)(14), the facility must immediately inform the resident, consult the resident’s physician, and notify the resident representative(s) of (among other events) a significant change in the resident’s physical, mental, or psychosocial status or a need to alter treatment significantly.  Changes involving “non-emergency clinical complications” are significant and mandate physician consultation. Stone Cnty. Nursing & Rehab. Ctr., DAB No. 2276 at 6 (2009).

“Immediately” means as soon as the change is detected, without any intervening interval of time.  River City Care Ctr., DAB No. 2627 at 8 (2015); Magnolia Estates Skilled Care, DAB No. 2228 at 8 (2009).  “Consultation” requires more than just informing or notifying the physician; it requires “a dialogue with and a responsive directive” from the physician.  River City Care Ctr., DAB No. 2627 at 8.

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Even though CMS imposed no remedy for the deficiencies cited under section 483.10(b) (and hence, I am not reviewing it specifically), there is a relationship between that regulation and the facility’s substantial noncompliance with section 483.25.  If the facility fails to consult the resident’s physician immediately of a significant change in the resident’s status or a need to alter treatment, it is not ensuring that the resident receives the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being.  See Sheridan Health Care Ctr., DAB No. 2178 at 8, 15.

Moreover, the seriousness of the facility’s substantial noncompliance is based on the underlying facts, not the number of regulations cited. Edgemont Healthcare, DAB No. 2202 at 20 (2008) (finding that whether, based on the same set of facts, the facility violated two regulations rather than one would not make the facility’s substantial noncompliance any more serious).  

Facility policy:  physician notification.  Facility policy requires that staff “promptly” notify the resident, her attending physician, and her representative of changes in the resident’s medical/mental condition or status.

Specifically, the policy directs the nurse supervisor or charge nurse to notify the resident’s physician of any of the following:  an accident or incident involving the resident; discovery of injuries of an unknown source; reaction to a medication or an allergy; a significant change in the resident’s physical/emotional/mental condition; refusal of treatment or medications (two or more consecutive times); a need to transfer the resident to a hospital/treatment center; and a discharge without medical authority.  The policy then says that the nurse will notify the physician when there have been “[i]nstructions to notify the physician of changes in the resident’s condition.”  CMS Ex. 2 at 1.  If this means that staff are not required to notify the physician unless the physician has previously directed them to, the provision violates section 483.10(g), which requires staff to consult the physician immediately whenever there is a significant change.  

The policy directs the nurse supervisor or charge nurse to notify the resident’s family or representative (unless the resident instructs otherwise) when:  the resident is involved in an injury, including injuries of an unknown source; there is a significant change in the resident’s physical, mental, or psychosocial status; there is a need to change the resident’s room assignment; a decision has been made to discharge the resident from the facility; or it is necessary to transfer the resident to a hospital/treatment center.  Id.

According to the policy, except in medical emergencies, notifications must be made within 24 hours of a change occurring in the resident’s medical/mental condition or status.  Id.  This problematic provision violates the federal regulation, which requires the facility to make such notifications immediately.  42 C.F.R. § 483.10(g)(14); Maysville Nursing and Rehab., DAB No. 2874 at 9 (2018) (reiterating that “immediate”

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consultation “means exactly that” and noting that CMS explicitly rejected an initial proposal to require consultation within 24 hours). 

The nurse supervisor or charge nurse must also record, in the resident’s medical record, information relative to changes in the resident’s medical/mental condition or status.  CMS Ex. 2 at 2.

If a significant change in the resident’s physical or mental condition occurs, the facility must conduct a “comprehensive assessment of the resident’s condition.”  CMS Ex. 2 at 2.  

Facility policy:  investigating and reporting.  According to the facility policy, all accidents involving residents, employees, visitors, vendors, etc., that occur on the facility premises, must be investigated and reported to the facility administrator.  CMS Ex. 2 at 3.  

No matter how minor, accidents and incidents, including injuries of unknown source, must be reported to the department supervisor as soon as they are discovered or when information of such accident/incident is learned.  A Report of Incident/Accident must be completed for all accidents or incidents.  An employee witnessing an accident or incident must report the occurrence to his or her immediate supervisor as soon as practical but should not leave the victim unattended unless absolutely necessary.  The nurse supervisor or charge nurse must be informed immediately so that medical attention can be provided.  Id.

The policy instructs staff who witness an accident, or find it necessary to assist an accident victim, to:  render immediate assistance; if possible, move the injured resident to her bed; and, if assistance is needed, summon help.  CMS Ex. 2 at 3.  

The nurse supervisor or charge nurse must:  examine all accident/incident victims; notify the medical director or the victim’s physician of the accident/incident; if necessary, transfer the injured person to the emergency room, medical treatment center, or hospital; and, if necessary or appropriate, designate an employee to accompany the victim to the emergency room, medical treatment center, or hospital.  Id.

The nurse supervisor, charge nurse, department director, or supervisor must immediately investigate the incident and include on the Report of Incident/Accident form the following:  1) date and time of the incident; 2) nature of the injury/illness (e.g., bruise, fall, nausea, etc.); 3) circumstances surrounding the incident; 4) where the incident took place; 5) names of witnesses and their accounts of the incident; 6) the injured person’s account; 7) time the injured person’s physician was notified and by whom; 8) the date/time the injured person’s family was notified and by whom; 9) condition of the injured person (including vital signs); 10) disposition of the injured; 11) any corrective action taken; 12) follow-up information; 13) other pertinent data as necessary or required; 

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and 14) signature and title of the person completing the report.  CMS Ex. 2 at 3-4; see also CMS Ex. 2 at 5-8 (copy of the Report of Incident/Accident form). 

Within five working days of the alleged incident, the facility must give the resident, the resident’s representative, the ombudsman, the state survey and certification agencies, the accused individuals, and others a written report of the investigation findings and a summary of corrective action taken to prevent such incidents from recurring.  CMS Ex. 2 at 15.  

Facility policy:  signs and symptoms of abuse and neglect.  The facility policy declares that it will not condone any form of resident abuse or neglect.  All personnel are required to report immediately to their supervisor or director of nursing services any signs or symptoms of abuse or neglect.  CMS Ex. 2 at 9.

“Abuse” is defined as the willful infliction of injury, unreasonable confinement, intimidation, or punishment, with resulting physical harm, pain, or mental anguish.  “Neglect” is defined as failing to provide goods and services needed to avoid physical harm, mental anguish, or mental illness.  Id.

The policy lists signs of physical abuse that must be reported, cautioning that these are examples; the list is not all-inclusive.  When in doubt, staff must report.  Signs of physical abuse include:  welts or bruises; abrasions or lacerations; fractures, dislocations, or sprains of questionable origin; black eyes or broken teeth; improper use of restraints; sexual exploitation; rape; excessive exposure to heat or cold; involuntary seclusion; and multiple burns or human bites.  Id.

The policy also lists signs of physical neglect:  malnutrition and dehydration (unexplained weight loss); poor hygiene; inappropriate clothing (soiled, tattered, poor fitting, lacking, inappropriate for season); decayed teeth; improper use or administration of medication; inadequate provision of care; caregiver indifference to resident’s personal care and needs; failing to provide privacy; and leaving unattended someone who needs supervision.  Id.

The policy also lists possible symptoms of psychological abuse and neglect:  the resident clinging to the abusive caregiver; paranoia; depression; new or increasing confusion or disorientation; withdrawal; inconsistent explanation of injuries; new or more frequent expressions of low self-esteem or self-worth; anger; and suicidal ideation.  CMS Ex. 2 at 9-10.  

Facility policy:  reporting resident abuse.  The facility policy requires all employees to report immediately any incident or suspected incident of resident neglect, abuse, or misappropriation of resident property.  Such incidents must be investigated, and any

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findings of abuse must be reported to the state agency responsible for recording such data in the Abuse Registry. CMS Ex. 2 at 11.

The policy reiterates that the facility will not condone resident abuse by any of its employees and repeats its definition of abuse. The policy prohibits employees from knowingly: attempting, with or without threats or promises, to induce another not to report an incident or suspected incident of abuse; failing to report an incident or suspected incident of abuse; altering, changing, destroying, or rendering unavailable a report made by another; or screening reports or withholding information from reporting agencies. Id.

Any employee with knowledge or reason to believe that a resident has been the victim of abuse must immediately report the incident or suspicion to the nurse supervisor and include the following information:  name of the resident involved; date and time of the incident; where the incident took place; name(s) of person(s) committing or suspected of committing the incident; names of witnesses; type of abuse (e.g., verbal, physical, sexual, neglect, etc.); and other information requested by the nurse supervisor.  The nurse supervisor must complete a Resident Abuse Form and obtain a written, signed, and dated statement from the person reporting the abuse.  Id.

A completed copy of the resident abuse form and written witness statements must be provided to the administrator within 24 hours of the occurrence of the incident.  An immediate investigation is conducted, and the results are reported to the administrator within five days of the nurse supervisor receiving the initial report.  Id.

If the investigation finds abuse, the policy requires the facility to report its findings to the State Abuse Registry.  The individual(s) involved will be notified of the findings and will be suspended, without pay, until the registry has investigated the claim.  If the allegations prove true, the individual’s employment will be terminated; if the allegations are unfounded, the employee will be reinstated with back pay.  Id.

Records of all allegations will be filed in the accused employee’s personnel record, along with the employee’s statement refuting the allegations if the employee chooses to make one.  Records of unfounded allegations will be destroyed.  Id.

Facility policy:  preventing abuse.  The facility also has written policies in place to prevent abuse and to keep residents safe while allegations of abuse are investigated.  Among other provisions:  staff must be trained to understand and manage a resident’s verbal or physical aggression; residents with needs and behaviors that may lead to conflict and neglect will be assessed, care-planned, and monitored; residents with signs and symptoms of behavior problems will be assessed, care plans will be developed and implemented to address those behavior problems; the facility will maintain adequate staffing on all shifts to ensure that the needs of each resident are met; and all personnel,

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residents, family members, visitors and others are encouraged to report immediately to facility management any signs or suspected incidents of abuse.  CMS Ex. 2 at 13.  

Mandated staff training orientation programs include such topics as preventing abuse, identifying and reporting abuse, stress management, and dealing with violent behavior or catastrophic reactions.  CMS Ex. 2 at 14.  

Facility policy:  preventing resident accidents and incidents.  The facility policy promises that it will “work to prevent” any accidents or incidents, and to change a resident’s care plan in response to an accident or incident.  Its stated goal is to achieve and maintain an environment free of accidents and incidents.  CMS Ex. 2 at 16.  

The facility’s program to achieve this goal includes:  training staff and practitioners to follow the resident’s care plan; allowing staff to provide input as a resident’s condition changes; assisting or rotating staff among residents to “bring a fresh set of eyes”; informing newly-admitted residents and family on resident safety and reporting environmental issues; involving the resident family group council in developing, monitoring, and evaluating the facility’s accident/incident prevention program; helping staff deal appropriately with nursing home adjustment to the environment; training staff to understand and manage a resident’s verbal, physical, or environmental changes; instructing staff about how cultural, religious, and ethnic differences can lead to adjustment problems; monitoring staff on all shifts to identify inappropriate behaviors toward residents (e.g., derogatory language, rough handling, ignoring residents while giving care, directing residents who need toileting assistance to urinate or defecate in their clothing or beds); assessing, care planning, and monitoring residents with changes in condition and/or recent accident/incidents; review medications, medication changes, environmental changes, and other changes for a resident with a recent incident/accident and intervene appropriately; conducting background investigations to avoid hiring persons with histories of abusing residents; involving physicians and the medical director with accident/incident monitoring; identifying areas within the facility where accidents/incidents may occur; striving to maintain adequate staffing on all shifts to ensure that resident needs are met; and encouraging all personnel, residents, family members, visitors, etc., to report immediately to facility management any signs or suspected incidents of abuse.  CMS Ex. 2 at 16.

Finally, the policy requires the interdisciplinary team to review daily all incidents.  Id.

Resident 1 (R1).  R1 was a 48-year-old woman who had been the victim of a traumatic brain injury.  She was initially admitted to the facility on February 1, 2008, suffering from a long list of impairments, including:  osteoporosis; mental disorders due to physiological conditions; anxiety disorder; major depressive disorder; convulsions; and aphasia (loss of the ability to understand or express speech).  CMS Ex. 1 at 2, 27.  She

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was bed-bound and required an extensive, two-person assistance for activities of daily living.  CMS Ex. 1 at 53-54.  

R1’s cognitive skills were severely impaired.  CMS Ex. 1 at 72.  Nevertheless, she understood “consistent, simple, directive sentences.”  CMS Ex. 1 at 52.

She resisted care and could become “very aggressive with staff[,] grabbing her private area and flipping staff off.” CMS Ex. 1 at 47.  On occasion, her behaviors were physical:  throwing things, hitting, scratching, screaming, and biting staff who attempted to provide care.  CMS Ex. 1 at 48-49.  She was at high risk for potential injuries and bruising because she “flailed” her extremities.  CMS Ex. 1 at 51.  

R1’s care plan.  To minimize R1’s risk of injury from flailing her extremities, her care plan directed staff to (among other items):

• Monitor all injuries until they resolve; 
• Notify the charge nurse of any new bruising or skin tears; 
• Notify the physician and representative of any abnormal findings; and
• Administer treatments as ordered.

CMS Ex. 1 at 51.  To address her communication deficits, staff were instructed to use her preferred name; face the resident and make eye contact when speaking to her; provide necessary cues; and stop care and return later, if she becomes agitated.  CMS Ex. 1 at 51-52.  They were to “anticipate and meet [her] needs.”  CMS Ex. 1 at 52.  

R1’s physician ordered for her two 325 mg. of Tylenol, every eight hours, as needed (prn), for pain.  CMS Ex. 1 at 36; P. Ex. 3 at 2.  Her care plan incorporated the physician order.  CMS Ex. 1 at 58; P. Ex. 3 at 2.  The plan goal was to keep her “free of any discomfort or adverse side effects from the pain medication.”  CMS Ex. 1 at 58.  

According to her January 16, 2019 Minimum Data Set (MDS), she was not then receiving any pain medications and had exhibited no signs of pain.  CMS Ex. 1 at 92-93; see CMS Ex. 1 at 37; P. Ex. 4 at 2 (showing that no Tylenol was administered from January 1-28, 2019).  

The incidents:  January 29, 2019.  Nurse Aide Cynthia Bosley was employed by a staffing agency and was assigned to the facility on January 29, 2019.  At 1:17 p.m., she sent a text message to her agency supervisor “covering” herself.  In that message, she reported that she was changing a nonverbal resident who, nevertheless, “rolls well” and is able to point.  “[S]he is yelling and pointing [to] indicate that there is something wrong 

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with her right leg.”  CMS Ex. 4 at 18; P. Ex. 15.  Nurse Aide Bosley reported the incident to Licensed Vocational Nurse (LVN) Addye Willett. Id.  

More than a week later, Nurse Aide Bosley completed a witness statement.  Consistent with her January 29 text message, she reported that, at 11:30 a.m. on January 29, she had been caring for R1, who was nonverbal, but a “yeller” and a “fighter” and was able to point to what she wanted or needed.  R1 was pointing to her right leg and yelling more than usual.  Nurse Aide Bosley reported this to the nurse, whom she identified as “Abbey” (in fact, Addye Willett), who said that she would check.  CMS Ex. 1 at 23; P. Ex. 14 at 10.

LVN Willett was an agency nurse, assigned to the facility, and was the charge nurse on January 29.  According to facility policies and the resident’s care plan, in response to R1’s sudden onset of significant pain (an abnormal finding), the charge nurse was supposed to notify “promptly” R1’s physician and family/representative.  CMS Ex. 1 at 51; CMS Ex. 2 at 1; see 42 C.F.R. 483.10(g)(14) (requiring the facility to consult with the resident’s physician and notify the representative “immediately”); Maysville Nursing and Rehab., DAB No. 2874 at 9.

LVN Willett was also supposed to record, in R1’s medical record, “information relative to changes in the resident’s medical/mental condition or status.”  CMS Ex. 2 at 2.  She did not do so.  In fact, that change was not recorded until many hours later, and by a different nurse.  LVN April Ashworth recorded R1’s complaints of pain at 10:00 p.m. that night, indicating that the physician was notified and ordered an x-ray.  LVN Ashworth did not indicate that the resident’s family or representative had been notified.  CMS Ex. 1 at 8; P. Ex. 5 at 6.  In a letter dated March 12, 2019, R1’s physician, Pablo E. Splenser, M.D., confirmed that facility staff did not contact him until “the evening of 1/29/19.”  P. Ex. 1 at 1.

R1 had previously had problems with her right leg.  In 2016, she began to experience redness and swelling.  The leg was x-rayed; she was diagnosed with osteoarthritis; the low dose of prn Tylenol was prescribed.  P. Ex. 19; P. Ex. 26 at 1 (Lynch Decl.).  Petitioner suggests that, because R1 had a history of pain, redness and swelling in her right knee and had a prn order for Tylenol, her symptoms were nothing new, and staff did not have to report or record the information.  P. Reply at 5.  The undisputed evidence shows that this was, in fact, the attitude of the staff members who neither assessed nor even observed the resident on January 29, but simply assumed that everything was normal for her (see discussion below).  See CMS Ex. 2 at 16 (facility policy, recognizing this as a potential problem, called for  rotating staff members so that the resident would be viewed with “a fresh set of eyes.”).  

But the undisputed evidence also establishes that R1’s condition had changed significantly.  First, her medical records show that she had not experienced pain or been

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given Tylenol for at least four weeks (if not longer) prior to January 29.  CMS Ex. 1 at 37, 92-93; P. Ex. 4 at 2. Second, even though nursing staff recollections vary as to the condition of R1’s leg – the facility did not even begin to take witness statements until February 7 – all who observed her that day agreed that she was in significant pain (rated 10) and had other symptoms. 

• In a witness statement dated March 13, 2019, Nurse Aide Victoria Brown confirmed that, on January 29, she and the agency aide, Cynthia, went into R1’s room because she “had been screaming about her knee.”  The knee was red but not turned in an uncomfortable way.  P. Ex. 16 (emphasis added).
• In her January 29 entry into R1’s medical record, LVN April Ashworth reported that, in addition to R1’s complaints of pain, an assessment showed that her knee was red and slightly swollen.  Tylenol was administered and her physician ordered an x-ray.  CMS Ex. 1 at 8; P. Ex. 5 at 6; see CMS Ex. 1 at 37 (showing that Tylenol was administered at 10:27 p.m.).  
• In a March 12, 2019 letter, Dr. Splenser wrote that staff reported that R1 was complaining of pain, swelling, and redness in her right knee.  He noted that she previously suffered from this condition in 2016.  He ordered an x-ray.  P. Ex. 1 at 1.
• In a witness statement dated February 7, 2019, LVN Cheyenne Haynes wrote that, between 9:45 p.m. and 10:00 p.m. on January 30, 2019 (sic), Nurse Aide “Megan” reported that R1’s right leg looked different than usual.  LVN Haynes looked at the leg and noted that the leg “was bending to the side and [her] knee appeared swollen.”  CMS Ex. 1 at 22 (emphasis added); see CMS Ex. 5 at 31 (staff identifier key identifying Nurse Aid Meagan Fowler).  

Petitioner submits an amended version of this statement, dated March 11, 2019.  In the amended statement, LVN Haynes wrote that, between 9:45 p.m. and 10:00 p.m. on January 29, 2019, Nurse Aide “Megan” told her that she needed to look at the resident’s leg, because it looked different than usual.  R1’s right leg was “bent in to the side, and the knee appeared slightly red and swollen.”  She did not think it looked broken but, since she had been a nurse for only about seven months and had worked at the facility for about two weeks, she decided to get the opinion of a second nurse.  The night nurse agree that the leg appeared slightly red and swollen and suggested it would be a good idea to get orders for an x-ray.  P. Ex. 20 at 1-2; see CMS Ex. 4 at 6 (indicating that Nurse Aide Meagan Fowler told surveyors that she had never seen R1 cry like that and that her leg did not look normal).

• In her own statement, dated March 11, 2019, LVN Ashworth wrote that, at the urging of LVN Haynes, she assessed R1 at 10:00 p.m. on January 29, 2019.  The 

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resident’s knee was red and swollen and tender to the touch.  The resident refused further assessment (yelling and striking out) so LVN Ashworth was unable to rotate the leg or knee.  She immediately called Dr. Splenser, notified him of her findings, and received his order for an x-ray.  She gave the resident Tylenol, as ordered.  P. Ex. 20 at 3. R1’s pain level was 10, which means “worst possible pain.” CMS Ex. 1 at 37; P. Ex. 4 at 2. 

• LVN Willett made no entries into R1’s medical record and submitted no witness statement.  In an email dated March 11, 2019, she advised the facility’s director of nursing (DON), Karita Ellis, that the “van driver” (in fact, Nurse Aide Brown) came to her and reported that R1 acted as if she were in pain.  When LVN Willett entered R1’s room, the resident was yelling.  She asked R1 if she were in pain; the resident nodded and indicated that the pain was in her right leg. According to LVN Willett, she did not see any bruising or redness, but, as she told staff, it “seemed as if something was not right.”  The unidentified staff – who did not examine the resident – told her that R1 “yells like that all the time.”  So, according to LVN Willett’s email, she simply gave the resident some Tylenol, which seemed to resolve the problem.  P. Ex. 17.  If, in fact, she administered Tylenol, LVN Willett did not record it on the medication administration record.  According to that record, R1 received only one does of Tylenol on January 29, and April Ashworth (AA) administered it late that night.  CMS Ex. 1 at 37; P. Ex. 4 at 2.

The discrepancy between LVN Willett’s claim and R1’s medication administration record presents a dilemma for the facility.  Although I am required to draw every reasonable inference in the light most favorable to the nonmoving party, neither inference is particularly favorable to Petitioner.  Either the medication administration record is accurate, or the LVN’s statement is accurate.  If the medication administration record is accurate, R1 went unmedicated and was in considerable pain from 11:30 a.m. until 10:27 p.m., which means that the facility was not providing her the care necessary to allow her to attain “the highest practicable physical, mental, or psychosocial well-being in accordance with [her] comprehensive assessment and plan of care,” which puts it out of substantial compliance with section 483.25.  See CMS Ex. 1 at 58 (care plan requiring to keep R1 “free of any discomfort” by administering physician-ordered Tylenol).

On the other hand, if LVN Willett’s statement is correct, she failed to document that she administered a medication.  Not only does this violate 42 C.F.R. § 483.70(i), which requires that medical records be complete and accurately documented, it violates section 483.25.  Because she failed to document that she administered the pain medication, and she failed to document the resident’s reaction to it, she did not comply with facility policies (see CMS Ex. 2 at 2) or professional standards of nursing care.  Thus, the facility was not providing R1 with the care she needed to allow her to attain “the highest practicable physical, mental, or psychosocial well-being in accordance with [her] comprehensive assessment and plan of care,” which also puts it out of substantial 

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compliance with section 483.25.  See Spring Meadows Health Care Ctr., DAB No. 1966 at 17 (holding that the quality of care provision implicitly imposes on facilities a duty to provide care and services that, at a minimum, meet accepted professional standards of quality).

In an undated statement, DON Ellis concedes that, on January 29, Nurse Aide Bosley came to her office to report that R1 was lying in her bed, yelling.  DON Ellis maintains that that the nurse aide “never told me that she thought anything might be wrong with the resident,” which seems somewhat incongruous.  P. Ex. 21.  Why would an agency nurse aide go to the office of the DON to report that a resident was yelling, if not to convey that she thought something was wrong?7   Even the most sympathetic factfinder would be hard pressed to accept that staff who report that a resident is lying in bed, yelling, did not intend to convey that something was seriously wrong.  Nevertheless, for purposes of summary judgment, I accept that Nurse Aide Bosley did not express alarm beyond reporting that the resident was yelling.  DON Ellis did not take the nurse aide’s report seriously because she, like the unidentified staff who discounted LVN Willett’s concerns, did not bother to investigate, assuming that this was R1’s typical behavior. 

More than ten hours after Nurse Aide Bosley and LVN Willett discovered R1’s changed condition, LVNs Haynes and Ashworth finally acted (more or less) in accordance with facility policies, the resident’s care plan, and federal regulations (except for failing to notify R1’s family).  They assessed the resident, called her physician, and recorded the incident. 

A January 30, 2019 pain assessment indicates that R1’s pain intensity was 10 – the highest level on the scale. The pain is described as “aching” and “throbbing,” affecting all aspects of the resident’s life:  sleep, appetite, physical activity, relationships, emotions, and concentration.  CMS Ex. 1 at 10-11; P. Ex. 4 at 2.  

The x-rays taken the following day confirm that R1’s condition had changed.  The x-rays showed no lytic or blastic lesions (suggesting cancer), no fractures, and no significant degenerative changes.  However, the bones demonstrated diffuse demineralization (loss of bone mineral density) and a “small joint effusion at the suprapatellar bursa region” (also referred to as bursitis or “water on the knee”). CMS Ex. 1 at 9.  On January 30, 

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R1’s care plan was amended to add new diagnoses:  bursitis, bone demineralization, and osteopenia with high risk for fracture.  P. Ex. 3 at 1.

The undisputed evidence thus establishes that the staff who saw R1 on January 29 recognized that “something was not right.”  From 11:30 a.m., she was certainly in significant pain (level 10 when finally recorded) and something was observably wrong with her right leg.  This represented a significant change in her condition.  The nurse was therefore required to act:  to report promptly the abnormal findings to R1’s representative; to consult immediately the resident’s physician; and to record, in the resident’s medical record, information about the changes.  Her failing to follow facility policy and the resident’s care plan put the facility out of substantial compliance with section 483.25.  Good Shepherd Home for the Aged, Inc., DAB No. 2858 at 12 and cases cited therein; Senior Rehab & Skilled Nursing Ctr., DAB No. 2300 at 13 (2010).

Finally, Petitioner and DON Ellis take a swipe at Nurse Aide Bosley, accusing her of telling the surveyors a “rather outlandish story” about R1’s condition.  P. Ex. 24 at 2-3 (Ellis Decl.); P. Opp. at 5-6.  This gratuitous attack is uncalled-for and unfair.  Unlike other staff, Nurse Aide Bosley did exactly what federal regulations, facility policies, and R1’s care plan required her to do:  she reported to the charge nurse, the DON, and her agency superiors her concerns about a resident.  She cannot be responsible for their failure to take her concerns seriously.  That she told the surveyor that R1’s leg “looked deformed,” is hardly an “outlandish story,” given other staff descriptions of the resident’s leg.  In any event, her statement to the surveyors is not inconsistent with what she wrote in her statements and is generally supported by the undisputed evidence.  CMS Ex. 4 at 7.  

February 3, 2019.  Between January 30 and February 3, R1 continued to experience redness, swelling, and pain in her right knee, which staff treated with the low dose Tylenol.  According to progress notes, Tylenol provided her some relief.  CMS Ex. 1 at 6-7.  At 5:01 a.m. on February 2, 2019, her pain level was assessed as two.  CMS Ex. 1 at 6.  

At 5:59 a.m. on February 3, 2019, LVN Katrena Lynch noticed that R1’s right hip was swollen and that her pain level had risen to four.  CMS Ex. 1 at 6; P. Ex. 5 at 4.8   The nurse administered Tylenol.  At 7:21 a.m., she sent the following fax to Dr. Splenser:  “Res[ident’s right] hip is swollen now[;] had x-ray of [right] knee last week [due to] swelling.  X-ray findings bursitis in knee.  Do you want x-ray of [right] hip?”  P. Ex. 22 at 3.  Dr. Splenser did not respond.  According to Petitioner’s own exhibits, LVN Lynch re-sent the fax to Dr. Splenser at 10:47 p.m., almost 17 hours later.  P. Ex. 22 at 4.

Sending a fax to the physician’s office does not satisfy the requirement to “consult.”  Consultation requires more than just informing or notifying the physician,

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Consultation . . . requires a dialogue with and a responsive directive from the resident’s physician as to what actions are needed; it is not enough to merely notify the physician of the resident’s change in condition.  Nor is it enough to leave just a message for the physician.  Also, the facility must provide the physician with all the information necessary to properly assess any changes to the resident’s condition and what course of action is necessary.  Failure to provide even one aspect of the change in a resident’s condition can significantly impact whether the physician has been properly consulted.

River City Care Ctr., DAB No. 2627 at 8, quoting Magnolia Estates Skilled Care, DAB No. 2228 at 8-9.

The undisputed evidence establishes that Dr. Splenser did not learn of the change in R1’s condition until many hours after LVN Lynch noticed it.  In a witness statement, drafted on March 11, 2019, LVN Lynch simply disregards – without retracting – her 5:59 a.m. entry in the progress notes.  In her witness statement, she writes that, on the night of February 3, 2019, at 11:30 p.m., Nurse Aide Sondra Joles reported to her that R1 was complaining of hip pain.  Accompanied by Nurse Aide Joles and “Melissa,” she went to assess.  The resident was lying in bed, her right knee turned inward.  She had “facial grimacing.”  R1 would not allow them to move her leg.  Her right hip and knee were slightly swollen, according to the statement.  LVN Lynch does not mention having sent a fax to Dr. Splenser some sixteen hours earlier, nor does she mention that she re-sent the fax at 10:47 p.m.  P. Ex. 23.  Instead, she claims that she “immediately” called the doctor, informed him of her assessment and the resident’s bursitis diagnosis.  The physician ordered Ibuprofen 800 mg (the maximum dosage) but “no diagnostics.”  According to LVN Lynch, she asked again, and he insisted “no diagnostics.”  Id. 

LVN Lynch also writes that the resident did not appear to be in “excruciating pain.”  The right leg did not appear broken, although she was holding it inward, approximately 15º.  Finally, LVN Lynch denies that the nurse aide told her that the resident looked like she had a broken hip.  P. Ex. 23.  

An entry dated February 3, 2019 at 11:42 p.m. confirms that LVN Lynch called Dr. Splenser at that late hour and that he ordered 800 mg. Tylenol, every eight hours, as needed for pain.  P. Ex. 22 at 5.  

Dr. Splenser alludes to their having “discussed” the resident’s condition and claims that the nurse “relayed all pertinent information necessary for me to make an informed treatment decision.”  He writes that the nurse “relayed” that the resident was holding her leg/knee slightly inward, which is consistent with bursitis but does not mention the swollen hip.  P. Ex. 1.  

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On the one hand, the faxes and the progress note mention that R1’s hip was swollen.  LVN Lynch’s witness statement indicates that it was “slightly swollen.”  But, except for alluding to her “assessment,” LVN Lynch does not claim that she and Dr. Splenser discussed R1’s hip.  For his part, Dr. Splenser writes as if he heard nothing about R1’s hip, so it appears that he did not receive the faxes.  And, assuming that Dr. Splenser accurately relates their conversation, LVN Lynch did not convey all the relevant information, which explains why he did not order a hip x-ray until much later.  If she told him about the swollen hip, he disregarded it.  In either case, the facility again did not ensure that R1 received necessary care and services.  This puts the facility out of substantial compliance with section 483.25.  

Moreover, LVN Lynch first noted the swelling in R1’s hip at 5:59 a.m.  No action was taken to until 11:46 p.m., 18 hours later.  LVN Lynch then wrote a progress note indicating that R1’s right hip and knee were still swollen and that the resident “cries out in pain” upon manipulation.  The LVN estimated her pain level at 5 (moderately strong).  Dr. Splenser ordered 800 mg. Ibuprofen (the maximum dosage) every eight hours, but no additional diagnostics.  Eighteen hours after she reported the increased pain, the nurse administered the first dose of the stronger pain medication.  CMS Ex. 1 at 5.  Putting aside the problems concerning the quality of the nurse’s consultation, facility staff, once again, impermissibly delayed seeking appropriate treatment for a suffering resident who required an additional assessment and change in treatment.  This puts the facility out of substantial compliance with section 483.25.  See CMS Ex. 2 at 1 (facility policy requiring nurse to notify physician of changes); CMS. Ex. 1 at 51 (R1’s care plan requiring staff to notify physician of any abnormal findings).

Apparently LVN Lynch attempted to call the resident’s family but was unable to reach them.  Staff informed the family of the change the following day, when they came to visit. CMS Ex. 1 at 5.  

February 6, 2019.  Nursing staff continued administering the Tylenol 800 mg., which appears to have alleviated R1’s pain.  CMS Ex. 1 at 4-5; P. Ex. 5 at 2-3.  

Although her report is devoid of specifics, LVN Shay Reynolds, who was the charge nurse on February 6, wrote that Nurse Aide “Meagan” called her into R1’s room to look at a bruise on the resident’s right inner thigh.  Sometime during the night of February 6 (reports are inconsistent, indicating 8:50 p.m., 9:30 p.m., 9:45 p.m., and 10:45 p.m.), LVN Reynolds rated the resident’s level of pain as seven (of ten), noting occasional moans or groans, facial grimacing, rigid body language, with fists clenched, knees pulled up, pulling or pushing away, and striking out.  The resident was inconsolable.  CMS Ex. 1 at 14.  The LVN called DON Ellis to report that a nurse aide discovered a bruise on R1’s inner thigh.  CMS Ex. 1 at 16, 21, 24; P. Ex. 8 at 3.  Contrary to facility policies and federal regulations, she did not consult the resident’s physician.  CMS Ex. 1 at 16; see CMS Ex. 2 at 1; P. Ex. 14 at 13.  DON Ellis told her to prepare an incident report and

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conduct a skin assessment.  She did not tell her to consult the physician.  CMS Ex. 1 at 14.  

DON Ellis reports that LVN Reynolds called her at about 9:30 p.m. on February 6 to advise her that a nurse aide had discovered a bruise on a resident’s inner thigh.  P. Ex. 14 at 8.  The following day DON Ellis assessed the bruise.  Again, her report does not indicate times.  She describes a dark purple bruise on R1’s inner thigh/groin area.  The resident’s leg appeared misaligned. CMS Ex. 1 at 21: P. Ex. 14 at 8.9 A second nurse, LVN Patti Ward, accompanied the DON.  She also describes “a dark purple bruise to the resident’s inner thigh/groin area” and opines that the resident’s right leg “appeared to be misaligned.”  CMS Ex. 1 at 20; P. Ex. 8 at 7; P. Ex. 14 at 9.  

According to a late entry in the resident’s progress notes (dated March 11, 2019), LVN Jalysa Moses reported that at 1:30 p.m. on February 7, she “reached out” to Dr. Splenser asking for an immediate x-ray of R1’s right hip.  Although R1’s right knee had been x-rayed the week before, her “leg is turned in[,] and she has a bruise to the back of her thigh.”  P. Ex. 9 at 3.  Again, the nurse did not properly “consult”; she sent the physician a text message, and he responded “OK.”  P. Ex. 9 at 4.  According to the facility’s incident report, the unexplained bruise did not require physician notification, which is contrary to facility policy.  P. Ex. 8 at 10.  

X-rays were finally taken at about 4:30 p.m. on February 7.  P. Ex. 11 at 3.  They showed that R1 had an “acute right hip fracture.”  P. Ex. 11 at 1.  R1 was sent to the hospital.  P. Ex. 5 at 1.

Under the facility’s policies, a bruise is listed as a sign of potential physical abuse, which must be reported immediately to the state agency, and must be investigated.  CMS Ex. 2 at 9, 11.  The facility’s administrator, Sidney Taylor, did not report the incident until 10:12 p.m. on February 7, 2019.  The report erroneously maintains that the incident occurred at 10:12 p.m. on February 7.  P. Ex. 14 at 2. Inconsistently, the report says that a nurse assessed the injury at 5:30 p.m. of February 7.  P. Ex. 14 at 3.  

Elsewhere, the report indicates that that the facility learned of the incident at 8:25 p.m. on February 7.  However, in reporting the details, the administrator concedes that staff noted the injuries during the “2-10” shift on February 6.  P. Ex. 14 at 6.

Petitioner’s arguments.  Petitioner lists five categories of purported facts that it claims are in dispute and preclude summary judgment.  However, three of those categories do 

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not describe material facts in dispute; they consist of opinions from Dr. Splenser and facility staff:

• Did the facility staff conduct reasonable or proper assessments of R1 during the time period in question;
• Did the facility staff properly communicate with R1’s physician regarding her condition; and 
• Did the facility staff provide services to R1 “in accordance with appropriate professional standards”?

P. Opp. at 4.

In Petitioner’s view, because the facility presents statements and declarations from Dr. Splenser and facility staff opining that their actions were proper and appropriate, it has created material facts in dispute.10 It is well-settled that such statements are conclusions and do not create disputes of material fact.  Senior Rehabilitation & Skilled Nursing Ctr., DAB No. 2300 at 9-12 (holding that a physician’s statements that staff provided “adequate” care and kept him “reasonably and timely informed” are conclusions, reflecting the physician’s individual opinion; they are not evidence of material facts); Guardian Health Care Ctr., DAB No. 1943 at 11.  

The remaining two categories arguably include disputes of fact, but they are not material.  In fact, they are not even in dispute:

• Was R1’s initial knee injury related to her subsequent hip fracture; and 
• Did R1’s leg appear broken and rotated on January 29, 2019?

Petitioner argues at length that R1’s initial knee injury was not related to her subsequent hip fracture.  CMS has not argued that it was.  I agree that the two were not related (except in the broadest sense that both were likely related to her underlying debilitated condition).  The issue is therefore not material.

Whether R1’s leg “appeared” broken and rotated on January 29 is also irrelevant.  As discussed above, although their descriptions varied somewhat, each person who looked at R1’s leg on January 29 noted that it was some degree of red, swollen, and tender.  Some accounts describe the leg as bent to “one side.”  Others do not.  It is undisputed that the

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leg was not then broken, and, for purposes of summary judgment, I accept that the leg was not bent to one side.

Everyone agrees that the resident was screaming in pain.  

Thus, no material facts are in dispute.  The undisputed evidence establishes that facility staff repeatedly failed to follow facility policies and the instructions in the resident’s care plan when they failed to consult immediately the resident’s physician and failed to notify her family or representative of changes in her condition.  On all three occasions, the resident was in considerable pain for many hours before staff acted.  LVN Willett did not record changes in the resident’s medical record.  She either failed to administer pain medication or she administered it and failed to record it.  The facility delayed reporting and investigating the bruise on R1’s thigh.  

Any one of these failings puts the facility out of substantial compliance with section 483.25.

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

Petitioner argues that because it was in substantial compliance, no penalty should be imposed but, otherwise, does not claim that the per-instance penalty is unreasonable.  

To determine whether a civil money penalty is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) factors specified in 42 C.F.R. § 488.404; and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors in 42 C.F.R. § 488.404 include:  (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies. 

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the section 488.438(f) factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1683 at 8 (1999).

Here, CMS imposes a per-instance penalty of $21,393, which is at the high end for per-instance penalties ($2,140 to $21,393).  42 C.F.R. §§ 488.408(d); 488.438(a)(2); 

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45 C.F.R. § 102.3 (2019); 84 Fed. Reg. 59549.  Considering what CMS might have imposed – a comparable per-day penalty for multiple days of substantial noncompliance – this penalty is modest. See Plum City Care Ctr., DAB No. 2272 at 18-19 (2009) (observing that even the maximum per-instance CMP can be “a modest penalty when compared to what CMS might have imposed.”).11

Applying the relevant factors here, the $21,393 per-instance penalty is reasonable.  

The facility has a less-than-stellar history.  For the annual survey completed on August 8, 2018, the facility was not in substantial compliance with a number of regulations, including the regulation governing food and nutrition services, 42 C.F.R. § 483.60 (Tags F802 and F812), cited at scope and severity level F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm).  CMS Ex. 13 at 1.

For the survey completed on September 13, 2017, the facility also had multiple deficiencies, each cited at scope and severity level F.  These included:  food and nutrition services, 42 C.F.R. § 483.60 (then Tag F371, currently Tags F812 and F813); adequate staffing and competent nursing staff, 42 C.F.R. §483.25 (then Tag F353, currently Tags F725 and F726); pharmacy services, 42 C.F.R. § 483.45 (then Tag F425, currently Tag F755); labeling and storing drugs and biologicals, 42 C.F.R. § 483.45  (then Tag F431, currently Tag F761); physical environment – essential equipment, 42 C.F.R. § 483.90(d) (then Tag F456, currently Tag F908); and maintaining a safe, functional, sanitary, and comfortable environment, 42 C.F.R. § 483.90(i) (then Tag F465, currently Tag F921).  Significantly, the facility was not in substantial compliance with 42 C.F.R. § 483.50(b) (then Tag F511, currently F777), which requires staff to notify promptly the ordering physician of the results of diagnostic tests that fall outside clinical reference ranges.  CMS Ex. 13 at 2.  

More remotely, the facility also has a history of substantial noncompliance with the quality-of-care regulation, 42 C.F.R. § 483.25 (then Tag F309, currently F684), which was cited at scope and severity level E (pattern of substantial noncompliance that causes no actual harm with the potential for more than minimal harm) in December 2008 and at scope and severity level G (isolated instance of substantial noncompliance that causes actual harm that is not immediate jeopardy) in February 2005.  

In November 2014, the facility was not in substantial compliance with the regulation requiring physician consultation, 42 C.F.R. § 483.10(g)(14) (then Tag F157, currently F580), cited at scope and severity level F. CMS Ex. 13 at 4. 

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By itself, the facility’s history justifies the penalty imposed.  

Petitioner does not claim that its financial condition affects its ability to pay the penalty.

With respect to the remaining factors, the facility’s nursing staff disregarded the unmistakable suffering of a seriously impaired and debilitated resident.  Notwithstanding their observations and the palpable concerns of some staff (notably, the nurse aides, who could do nothing but report those concerns to their superiors), the nursing staff impermissibly delayed consulting the physician.  Their inaction effectively meets the definition of culpability.  42 C.F.R. § 488.438(f)(4).  Considering the seriousness of the deficiency, the penalty imposed is reasonable. 

Conclusion

For all of these reasons, I grant CMS’s motion for summary judgment.  The undisputed evidence establishes that, in responding to her expressions of pain and an unexplained injury, facility staff did not follow facility policies or the resident’s care plan; they did not ensure that the resident received necessary care and services to allow her to attain or maintain the highest practicable physical, mental, and psychosocial well-being.  This puts the facility out of substantial compliance with 42 C.F.R. §483.25.  The penalty imposed – $21,393 per-instance – is reasonable. 

1. Although ultimately irrelevant because it is not reviewable (see below), CMS’s April 12, 2019 notice letter inconsistently describes the scope and severity level of the deficiency cited under section 483.25. CMS Ex. 6 at 1. The body of the letter indicates that both deficiencies were cited at scope and severity level J, as the statement of deficiencies (CMS Ex. 5) reflects. However, a subsequent paragraph in the notice letter refers, parenthetically, to the deficiency cited under section 483.25 as cited at scope and severity level K, which doesn’t make a lot of sense inasmuch as the deficiency seems to have been isolated. CMS Ex. 6 at 1. CMS has not explained the discrepancy or clarified which was the correct scope and severity level. However, its report of the facility’s enforcement history confirms that the deficiency was cited at scope and severity level J. CMS Ex. 13 at 1.
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2. Initially, CMS Ex. 8, the written declaration of Surveyor Tracey Woodards, was unsigned. CMS subsequently substituted a signed version of the document.
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3. Penalties are inflation-adjusted and change annually (more or less). The amount is determined as of the date the penalty is assessed, in this case, on April 12, 2019. See 84 Fed. Reg. 59549.
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4. The courts that have considered applying principles of summary judgment to Medicare administrative proceedings have carefully avoided any suggestion that deciding a case on summary judgment means that it is decided without a hearing. Throughout their decisions, they refer to deciding the case without an “oral hearing” or without an “evidentiary hearing.” The courts recognize that, although a case may be decided on summary judgment (or based on the written record), an administrative law judge, by considering the evidence and applying the law, has granted the petitioner a hearing, as required by sections 205(b) and 1866(h) of the Act. See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”).
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5. The regulations governing long-term care facilities have been revised since the Seventh Circuit issued its decision in Fal-Meridian. The requirement that facilities minimize the risk of accidents is now found at section 483.25(d). 81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (Jul. 13, 2017). However, the substance of the “quality of care” requirements – which are also statutory – has not changed, so decisions that pre-date the regulatory changes remain valid.
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6. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
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7. Implicit in DON Ellis’s statement is the suggestion that the nurse aide was at fault because she did not accurately convey the seriousness of the resident’s condition. I do not fault the nurse aide’s conduct. But even if it were somehow deficient, it is well-settled that a facility “cannot disavow responsibility for the actions of its employees,” through which it acts. Springhill Senior Residence, DAB No. 2513 at 14 (2013). That the facility obtained Nurse Aide Bosley’s services through an outside source does not make it any less responsible for her actions. See 42 C.F.R. §§ 483.21(b)(3); 483.70(g).
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8. Pain and swelling can be symptoms of a fracture. CMS Ex. 12 at 6.
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9. This is the first time that a registered nurse assessed R1’s condition. An LVN is not authorized to assess a resident’s condition but instead may collect data and information, recognize changes in conditions, and report his/her findings to a registered nurse, physician, or other appropriate clinical supervisor. CMS Ex. 11.
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10. Significantly, Petitioner did not provide written declarations from either LVN Willett or Dr. Splenser, but instead relies on Dr. Splenser’s letter and LVN Willett’s email.
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11. The penalty could have been as high as $21,393 per day starting January 29. 84 Fed. Reg. 59549.
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