Signature Healthcare of Buckhead, DAB CR5636 (2020)

DECISION

Based on a complaint investigation and survey completed on September 2, 2016, the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner was not in substantial compliance with Medicare participation requirements.  As a result, CMS imposed a civil money penalty (CMP) against Petitioner of $503 per day from April 5, 2016 to October 16, 2016 for a total of $98,085.  As explained herein, I find in favor of CMS and sustain the imposition of a $98,085 CMP.

I.  Background

Petitioner, Signature Healthcare of Buckhead (Petitioner or Signature) is a skilled nursing facility (SNF) located in Atlanta, Georgia, certified by and participating in the Medicare and Medicaid programs.  As a result of a complaint investigation survey conducted by the Georgia Department of Community Health (GDCH) on September 2, 2016, CMS found

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Petitioner to be substantially noncompliant with Tags F282 (42 C.F.R. § 483.20(k)(3)(ii)1 – services by qualified persons) and F323 (42 C.F.R. § 483.25(h)2 – accident hazards/supervision and assistance devices) at the "G" scope/severity level.3  CMS Exhibit (Ex.) 1 at 3-9; CMS Ex. 2.

CMS also found Petitioner substantially noncompliant with two other tags – F205 (42 C.F.R. § 483.12(b)(1), (2) – notice of bed-hold policy before/upon transfer) and F514 (42 C.F.R. § 483.75(l)(1) – resident records – complete/accurate/accessible),4 but at the lower scope and severity level "D," meaning isolated deficiencies with no actual harm but potential for harm that is more than minimal but does not arise to immediate jeopardy.  CMS Ex. 1 at 1-3, 9-11; SOM Ch. 7, § 7400.3.1.

CMS notified Petitioner on October 5, 2016 that it would terminate Petitioner's provider agreement as of March 2, 2017 if the facility remained out of substantial compliance by that date.  CMS Ex. 2 at 2.  CMS advised Petitioner it would impose a $503 per-day civil money penalty beginning April 5, 2016 until Petitioner returned to substantial compliance.  Id.  CMS also notified Petitioner it would impose a denial of payment for new admissions (DPNA) effective December 2, 2016 and that its nurse aide training program (NATCEP) would likely be affected by CMS's enforcement action.  Id. at 3-4.

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GDCH later found Petitioner had corrected these deficiencies as a result of a revisit survey conducted on October 24, 2016, the findings from which CMS adopted.  CMS Ex. 3 at 1.  Relying on GDCH's findings, CMS determined Petitioner returned to substantial compliance on October 17, 2016.  Id.  CMS therefore rescinded the termination action and DPNA but notified Petitioner that it would collect the CMP imposed in its prior notice.  Id.

On December 1, 2016, Petitioner timely requested a hearing in the Civil Remedies Division to challenge the imposition of the remedies indicated above.  Administrative Law Judge Scott Anderson was initially designated to hear and decide this case, and on December 12, 2016, he issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order) that set forth deadlines by which the parties were required to file their pre-hearing exchanges, including briefs, exhibits, witnesses, and the direct testimony of any witnesses identified.  Pre-hearing Order at 3.  On August 25, 2017, this matter was transferred to me to hear and decide.  I adopt Judge Anderson's Pre-hearing Order in its entirety.

II.  Admission of Exhibits and Decision on the Record

A. Admission of exhibits

CMS filed its pre-hearing exchange, including a pre-hearing brief (CMS Br.) and 14 exhibits (CMS Exs. 1-14), identifying two proposed witnesses.  Petitioner subsequently filed its pre-hearing exchange accompanied by a pre-hearing brief (P. Br.) with 20 proposed exhibits (P. Exs. 1-20) including declarations from 11 proposed witnesses.  There being no objection from either party, these exhibits are entered into the record.

B. A decision on the record is appropriate because neither party affirmatively identified witnesses it wished to cross-examine.

The Pre-hearing Order governing this case specified that a hearing in this matter would only be deemed necessary if either party requested to cross-examine the opposing party's witnesses.  Id. at 4, 6.  CMS identified two proposed witnesses, Surveyors Ann Monhollen and Angelia Newsome.  DAB E-file Docket No. C-17-154, Doc. No. 4a (CMS Proposed Witnesses List).  CMS submitted written direct testimony for Surveyor Monhollen, but not for Surveyor Newsome, presumably because she was no longer employed by GDCH.  Id. at 2.  CMS characterizes Surveyor Newsome's testimony as "critical to the litigation of this appeal" but has made no effort to procure her testimony.  At the time it filed its pre-hearing exchange, CMS advised it was still attempting to secure her testimony, but might "request the issuance of a subpoena" to compel her appearance if she did not testify voluntarily.  Id.

In its pre-hearing brief, Petitioner did not request cross-examination of either surveyor but objected to any testimony from Surveyor Newsome that CMS might subsequently

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submit, as well as her appearance at an evidentiary hearing before me.  P. Br. at 2-3.  This objection is moot, as CMS has made no effort to procure Surveyor Newsome's testimony or seek her appearance at hearing.  Had CMS eventually obtained and submitted Surveyor Newsome's testimony, I would have admitted it, as CMS had good cause for any delay and any prejudice to Petitioner would be minimal.  Similarly, had CMS sought a subpoena to require her appearance at a hearing, I would have issued one and provided both parties ample opportunity to elicit testimony under direct and cross-examination.  See Civ. R. Div. P. § 17(b).

However, CMS neither produced Surveyor Newsome's direct testimony nor requested issuance of a subpoena, even after Petitioner plainly highlighted this issue in the objection lodged in its pre-hearing brief.  P. Br. at 2.  I therefore conclude CMS has abandoned its intent to rely upon Surveyor Newsome as a witness.

CMS did not identify any of Petitioner's witnesses it wished to cross-examine but instead stated it "will affirmatively request to cross-examine certain witnesses . . . ."  CMS Proposed Witnesses List at 2.  However, CMS never filed such a request following the submission of Petitioner's pre-hearing exchange.  The Pre-hearing Order clearly required CMS to identify witnesses it wished to cross-examine after the filing of Petitioner's pre-hearing exchange.  Pre-hearing Order at 6 ("CMS must state its intention affirmatively, within fifteen (15) days of receipt of Petitioner's exchange.") (emphasis in original).  CMS's attempt to "reserve the right" to cross-examine Administrator Lloyd fails for the same reason.  CMS Proposed Witnesses List at 2.

Because neither party has affirmatively sought cross-examination of the opposing party's witnesses, a decision on the record is appropriate.

III.  Statement of Issues

The issues presented are:

A. Whether Petitioner was in substantial compliance with the deficiencies cited by GDCH in its August-September 2016 survey and relied upon by CMS to impose remedies against Petitioner;

B. If Petitioner was not in substantial compliance, whether the remedies imposed by CMS are reasonable.

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IV.  Discussion

A. Applicable Law

To participate in the Medicare program, a skilled nursing facility must maintain substantial compliance with program participation requirements.  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 regulations at 42 C.F.R. pt. 483, subpt. B.  "Noncompliance" means "any deficiency that causes a facility to not be in substantial compliance."  42 C.F.R. § 488.301.

CMS may impose enforcement remedies against a facility that is not in substantial compliance with a participation requirement.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  Among other enforcement remedies and relevant here, CMS may impose a per-day civil money penalty for the number of days a facility is not in substantial compliance.  42 C.F.R. § 488.430(a).  A per-day civil money penalty may range from either $50 to $3,000 per day, adjusted for inflation, for less serious noncompliance or $3,050 to $10,000 per day, adjusted for inflation, for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  42 C.F.R. § 488.438(a)(1).

A facility has a right to appeal a "certification of noncompliance leading to an enforcement remedy."  42 C.F.R. § 488.408(g)(1); see also 42 C.F.R. §§ 488.330(e), 498.3(b)(13).  However, CMS's choice of remedies and the factors CMS considered when choosing remedies are not subject to review.  42 C.F.R. § 488.408(g)(2).

B. Resident 4

CMS's allegations of "G"-level deficiencies concern one resident at Petitioner's facility, Resident 4.  At the time of her admission to Signature in February 2016, Resident 4 was 77 years old and had both legs amputated above the knees.  CMS Br. at 2; P. Br. at 3.  She also had secondary diagnoses of muscle weakness, lack of coordination, glaucoma, and cognitive communication deficit.  CMS Ex. 8 at 3.

On admission, Resident 4 underwent an evaluation to create a physical therapy plan of treatment performed by Kimberly Gilbert, M.D.  CMS Ex. 8 at 93-95.  Dr. Gilbert noted Resident 4 exhibited increased fall risk, decreased judgment and safety awareness, and reduced limb strength.  Id. at 94.  Dr. Gilbert concluded Resident 4 required skilled physical therapy services and otherwise exhibited a risk for falls, decreased mobility, and increased dependency upon caregivers.  Id.  Resident 4 underwent occupational therapy

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shortly thereafter; the assessing occupational therapist confirmed Resident 4 was at risk for falls and required increased dependency on her caregivers.  Id. at 102.

Resident 4's March 2016 Minimum Data Set (MDS)5 assessment indicated she required extensive two-person assistance for transfers, exhibited moderate cognitive impairment, and had no falls in the prior six months.  CMS Ex. 1 at 4; see CMS Ex. 8 at 32.  Her March 2016 care plan noted she required "extensive assistance" from one to two facility staff members for completion of most activities of daily living.  CMS Ex. 8 at 17.  The care plan required two people lifting to assist Resident 4 during transfers.  Id.  To reduce the risk of falls, the care plan also called for the facility to provide a call light within reach, keep Resident 4's area clutter-free, remind her to lock her wheelchair's brakes, and to provide assistance by staff with transfers.  Id. at 22.

1. The March 23, 2016 Fall

Resident 4 cried out for help around 4:15 p.m. on March 23, 2016.  Facility staff discovered her on the ground with her face to the floor after she fell out of her wheelchair.  CMS Ex. 7 at 1.6  Resident 4 reported her remote had fallen from her side table and she had fallen out of her wheelchair while trying to pick it up off the ground.  Id.  In addition to the interventions already in place in Resident 4's care plan to account for her heightened risk of fall, Signature imposed new interventions, namely to:  "get maintenance to check resident's wheelchair and have resident's wheelchair removed until maintenance looks at it"; provide Resident 4 a "reacher"; advise Resident 4 to use her call light; have Resident 4 evaluated for positioning; and to keep her items within personal reach.  Id. at 2; see also P. Ex. 8.

2. The April 5, 2016 Fall

Resident 4 fell again on April 5, 2016.  She reported she had been cleaning her face at the sink, and upon finishing, wheeled herself "towards the table but leaned too much and fell."  CMS Ex. 7 at 5.  Resident 4 suffered a cut to the bridge of her nose and a swollen

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eye that was almost closed shut.  Id.  The facility's report noted that at the time of the fall Resident 4 had been evaluated for positioning, had a call light within reach, adequate lighting, and a clutter-free area.  Id. at 6.  The report indicated no new nursing interventions were implemented, though post-fall interventions appeared to include "appropriate footwear"7 and education on safety.  Id. at 7.

Petitioner was examined at an emergency room following this fall, and imaging confirmed she sustained a mild fracture of the left eye socket.  CMS Ex. 9 at 9.  The examining physician expressed concern for her safety at Signature given her multiple falls.  Id. at 6.

During the August-September 2016 survey at issue here, surveyors interviewed the facility's Maintenance Director Kevin Rowell, who stated he was never asked to inspect Resident 4's wheelchair.  CMS Ex. 1 at 5.  Mr. Rowell also explained that while the facility's nursing staff had been instructed to document maintenance requests in a log kept at the nurse's station, in practice staff would often make such maintenance requests in passing in the hallways or on the elevator, and rarely used the log.  Id. at 4-5.

C. Petitioner failed to substantially comply with the requirement set forth at 42 C.F.R. § 483.20(k)(3)(ii).

CMS argues Petitioner failed to comply with the regulatory requirement that facilities provide services to a resident performed by a qualified person consistent with his or her plan of care.  CMS Br. at 5-6.  The regulations at issue provide, in relevant part, the following:

(k) Comprehensive care plans.  (1) The facility must develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment.

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(3) The services provided or arranged by the facility must –

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(ii) Be provided by qualified persons in accordance with each resident's written plan of care.

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42 C.F.R. § 483.20(k)(3)(ii); see CMS Ex. 1 at 3.

The essential dispute between the parties concerns who is qualified to inspect a wheelchair.  It is clear from the record that after Resident 4's first fall, the facility incorporated a requirement in her care plan that her wheelchair be removed and inspected by facility maintenance staff.  CMS Ex. 7 at 2.  CMS argues Signature failed to substantially comply with the regulatory requirement because such removal and inspection by maintenance staff never took place.  CMS Br. at 6.

Petitioner responds that Resident 4's wheelchair was indeed inspected, but by the physical therapists, occupational therapists, and nurses charged with her care.  Petitioner contends these staff members were sufficiently qualified by virtue of their familiarity with patients using wheelchairs to visually inspect this equipment and determine if repairs were needed.  P. Br. at 12-13.

Neither party cites to any external authority or sub-regulatory guidance to clarify who a "qualified person" might be in the context of inspecting wheelchairs.  Petitioner buttresses its position with post-hoc testimony from its employees; Occupational Therapist Allie Best stated unequivocally that "[t]herapists are qualified by training and experience to inspect a resident's wheelchair."  P. Ex. 12 at 2.  Her opinion is shared – verbatim – by Dr. Gilbert.  P. Ex. 16 at 2.  Maintenance Director Kevin Rowell explained he did not inspect wheelchairs to identify problems and that in his experience, facility nurses and therapists were sufficiently qualified to inspect residents' wheelchairs to identify problems and either fix them or ask him to do so when they could not.  P. Ex. 3 at 1.

I find these statements to be less than credible because they are inconsistent with Signature's contemporaneous response to Resident 4's first fall.  The facility imposed several additional interventions to benefit Resident 4 in addition to those already in place prior to her fall.  Among them, Signature thought it prudent to "get maintenance to check resident's wheelchair and have resident's wheelchair removed until maintenance looks at it."  CMS Ex. 7 at 2.

While the regulation does not define a "qualified person," it does specify that services be provided by such an individual "in accordance with each resident's written plan of care."  42 C.F.R. § 483.20(k)(3)(ii).  I do not find Petitioner's claim that therapists and nurses routinely perform visual inspections of wheelchairs to be unreasonable.  But given the regulatory admonition that such services be performed in accordance with a resident's care plan, I cannot ignore the fact that Signature memorialized its judgment – in Resident 4's care plan – that it was prudent to have Resident 4's wheelchair removed and inspected by "maintenance" – presumably, someone with somewhat greater expertise in

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identifying and repairing mechanical devices like a wheelchair than the average nurse or physical/occupational therapist.

Even if I were inclined to allow Signature to revise its own estimation of who is qualified to visually inspect a wheelchair, the record here fails to demonstrate that Resident 4's wheelchair was ever removed from her room, inspected, and deemed safe to use by anyone after her first fall.  If Signature did not believe such an intervention to be necessary, it should not have included it as an intervention in Resident 4's care plan.  Accordingly, I must conclude that Signature did not substantially comply with the regulatory requirement to provide services by a qualified person in accordance with a resident's written plan of care, as required by 42 C.F.R. § 483.20(k)(3)(ii).  See Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 18 (2011) (upholding finding of noncompliance where care not provided consistent with plan of care even if staff were otherwise qualified to provide required services).

D. Petitioner did not substantially comply with 42 C.F.R. § 483.25(h), Tag F323.

42 C.F.R. § 483.25(h) requires facilities to minimize the possibility of accidents by keeping residents' environments as free of hazards as possible, and by providing adequate supervision and assistive devices.  CMS contends Signature's awareness of Resident 4's cognitive and physical limitations, coupled with the two falls she suffered during her brief time at Signature, demonstrate the facility did not substantially comply with this regulatory requirement because it failed to provide her adequate supervision.  CMS Br. at 7-8.

Petitioner responds that the record demonstrates Resident 4 not only received adequate supervision, but that her condition improved to the point that her physician wrote an order permitting her to transfer home only a day before her second fall.  P. Br. at 14.  Petitioner also argues that CMS failed to point out any specific lack of supervision or assistive devices or environmental hazards that would form a basis for this deficiency.  Id.

The regulations governing skilled nursing facilities are not a strict liability regime, but the fact that Resident 4 fell twice in her room by herself at least suggests the level of supervision and assistance she received was inadequate.  That inference is supported by the record.  As a recent bilateral leg amputee, Resident 4's condition clearly put the facility on notice that she would require considerable assistance.  On initial assessment, the facility concluded Resident 4 required extensive two-person assistance for transfers.  CMS Ex. 8 at 17.  Resident 4 had impaired vision and balance, both of which would hamper her ability to engage her environment while using a wheelchair.  Id. at 20, 22.  Her physical therapy evaluation demonstrated decreased strength and coordination with poor safety awareness and decreased judgment, thus putting her at risk for falls.  Id. at 94,

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98.  In fact, Resident 4 exhibited lethargy, agitation, and was "unable to follow simple one step commands consistently."  Id. at 97.  Her ability to balance even while sitting was poor.  Id.  In short, the foreseeable risk of harm to Resident 4 was significant.  Nevertheless, Signature concluded it was sufficient to merely advise Resident 4 to use a call light when she needed assistance.  CMS Ex. 8 at 15.  This intervention, if that word is even appropriate to use, was clearly inadequate.  The fact that Resident 4 initially exhibited decreased judgment, poor safety awareness, and was unable to follow simple one-step commands should have suggested to the facility that she might not be able to accurately determine when she needed assistance.8  Significantly, both of Resident 4's falls occurred when she was in her room by herself.  While the facility recognized the need for extensive two-person assistance during transfers and extensive one-to-two-person assistance for most activities of daily living, it does not appear to have considered the possibility that a recent bilateral leg amputee in her 70s with little or no experience using a wheelchair might need additional supervision and assistance without expecting her to first request such assistance.

Even assuming the facility's initial interventions were a reasonable response to Resident 4's initial risk assessment, a more robust level of supervision and assistance would have been expected after her first fall.  But the additional interventions imposed by Signature were not sufficient to prevent a second fall shortly thereafter.  Significantly, Signature did not increase Resident 4's level of supervision or otherwise acknowledge her limited judgment in determining when to seek assistance.  Instead, it recycled the demonstrably ineffective intervention of advising her to use her call light when she felt it necessary.  Substantial compliance required the facility to take reasonable measures to preclude all foreseeable risks; I find the lack of supervision and assistance afforded to Resident 4 outside of situations involving a transfer was clearly inadequate, and thus Signature did not substantially comply with 42 C.F.R. § 483.25(h).

Even if Signature was not wholly at fault for Resident 4's lack of safety awareness and judgment (though as I have discussed, her limitations were clearly on display at her admission and signaled a need for more thorough supervision and assistance), the fact remains that Signature did not even effectuate the interventions it did identify after Resident 4's first fall.  As I have already discussed, it was Signature's judgment that Resident 4's wheelchair required closer scrutiny from a member of the facility's maintenance staff.  But the Maintenance Director relayed to one of the surveyors that no such request was made to him, and that he had never assessed her wheelchair.  CMS Ex. 1 at 8.  Signature failed to both accurately identify reasonable measures to reduce

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Resident 4's risk of fall, and failed to implement at least one measure it did identify.  As such, it did not substantially comply with 42 C.F.R. § 483.25(h).

E. Petitioner did not substantially comply with 42 C.F.R. § 483.12(b)(1) and (2), Tag F205, or 42 C.F.R. § 483.75(l)(1), Tag F514.

42 C.F.R. § 483.12(b)(1) and (2) require a facility to provide written notice to a resident or responsible party upon transfer out of the facility that the resident can return and resume residence within seven days (a "bed hold" notice).  Here, Signature issued a 30-day discharge to Resident 12 for failure to pay her share of the bill owed to Signature for three months.  CMS Ex. 1 at 2.  Resident 12, a diagnosed schizophrenic, reacted poorly and was transferred to a local hospital for treatment, but was not given written notice of Signature's bed hold policy.  Id.  Signature concedes it did not comply with this regulatory requirement, but objects to the duration of noncompliance found by CMS.  P. Br. at 15.

42 C.F.R. § 483.75(l)(1) requires a facility to maintain complete, accurate, and accessible records for its residents.  Here, CMS determined Signature's records for Residents 4 and 12 were incomplete or inaccurate.  Facility records for Resident 4 indicated both that she fell while brushing her teeth (although she had no teeth or dentures), and that she fell after washing her face.  CMS Ex. 1 at 10; CMS Ex. 7 at 5, 12.  Her records also documented a wound with drainage on her feet, which given her status as a bilateral leg amputee, was clearly inaccurate.  CMS Ex. 1 at 10.

Facility records for Resident 12 were also inaccurate.  Signature's records incorrectly showed Resident 12 was discharged after her seven-day bed hold expired.  But Resident 12 had never received a written bed hold notice and was still hospitalized.  CMS Ex. 1 at 11.  Moreover, the facility discharged her before the 30-day period it provided in its discharge notice had elapsed.  Id.  Again, Signature concedes its noncompliance with this regulatory requirement but objects to the duration of noncompliance found by CMS.

F. The duration of the CMP is reasonable.

CMS imposed a CMP of $503 per day from April 5, 2016 to October 16, 2016.  Signature contests the duration for all four deficiencies, arguing that because both Residents 4 and 12, the subjects of those deficiencies, were discharged by April 11, 2016, the facility's noncompliance could not have continued past that date.  P. Br. at 17-18.

Signature's claim is without merit.  As CMS correctly observed, Signature conceded these deficiencies persisted after Residents 4 and 12 were discharged by submitting a Plan of Correction to address them.  CMS Br. at 11, citing CMS Ex. 12.  These conditions therefore affected or potentially affected other residents even after Residents 4 and 12 were discharged – otherwise, Signature would not have needed to develop a plan

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of action to correct them.9  Libertyville Manor Rehab. & Healthcare Ctr., DAB No. 2849 at 14 (2018) (providing a facility's Plan of Correction "may be regarded as evidence of the measures necessary to bring the [facility] back into substantial compliance.").

Reviewing the Plan of Correction submitted by Signature, it is clear the discharge of Residents 4 and 12 were not the only corrective measures the facility proposed to return to compliance.  For each deficiency, Signature also indicated it would:  identify other residents potentially affected, delineate systemic changes it would make to minimize future lapses in compliance; outline specific monitoring goals it would meet; and set forth quality assurance audits it would undertake.  CMS Ex. 12 at 2 (F205), 4 (F282), 5-6 (F323), 10 (F514).  As demonstrated by a handwritten notation under the "completion date" column in this document, Signature did not complete all corrective actions it identified until October 17, 2016.  Id. at 2, 4, 6, 10.

The handwritten inscription of "10/17/16" on these pages next to the deficiency tags does not make clear which specific measures were completed by that date.  But Signature does not contest CMS's assertion that it did not complete all the corrective measures identified in the Plan of Correction until October 17, 2016.  Because Signature bore the burden of showing it achieved substantial compliance at a date earlier than the one CMS identified, and because it has made no such showing to undermine CMS's assertion, I find Signature did not return to substantial compliance until October 17, 2016, and affirm the duration of the CMP imposed by CMS.  Lake Mary Health Care, DAB No. 2081 at 29 (2007) ("The Board has repeatedly held that even when a plan of correction is accepted by CMS, that does not suffice to remove noncompliance.  The burden is on the facility to show that it timely completed the implementation of that plan and in fact . . . achieved substantial compliance (to end the application of remedies).") (citation omitted).

G. The $503 per-day CMP amount selected by CMS is reasonable.

CMS may impose civil money penalties on a facility "for either the number of days a facility is not in substantial compliance . . . or for each instance that a facility is not in substantial compliance."  42 C.F.R. § 488.430(a).  Even one instance of noncompliance is sufficient to impose civil money penalties on a facility.  42 U.S.C. § 1395i-3(h)(2)(B)(i)-(ii), (h)(3); 42 C.F.R. § 488.430(a).

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In determining the reasonableness of the civil money penalty amount imposed by CMS, I look to the factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors include the seriousness of the deficiency and the facility's compliance history, financial condition, and degree of culpability.  42 C.F.R. §§ 488.438(f), 488.404.

Neither CMS nor Signature argue compliance history or financial condition are factors affecting the penalty amount.  Indeed, Signature fails to argue how to apply any of the factors I must consider.  P. Br. at 18-19.  Nevertheless, I have considered the remaining factors.  I conclude that Signature's noncompliance was serious.  Here, Resident 4, an elderly resident who had recently had both legs amputated, was entitled to more careful supervision and assistance as she learned to engage a wheelchair to perform basic activities of daily living.  She fell out of her wheelchair twice, and in the second fall suffered significant injuries to her head and face.  The emergency room physician who treated her expressed concern for her safety at Signature given her multiple falls.  CMS Ex. 9at 6.

Similarly, though it resulted in only a "D" level deficiency, the failure to provide a bed-hold notice to Resident 12 reflected serious noncompliance; Resident 12 was a diagnosed schizophrenic, and upon being told she would be discharged from the facility, became so agitated she had to be taken to the hospital.  CMS Ex. 1 at 2.  Signature never provided Resident 12 assurance she had not lost her bed at the facility, and indeed discharged her before expiration of the 30-day grace period it claimed she would receive.  The consequences of the facility's noncompliance were far more serious than a mere failure to provide a written bed-hold notice.

I must also consider culpability, which the applicable regulation defines to include "neglect, indifference, or disregard for resident care, comfort, or safety."  42 C.F.R. § 488.438(f)(4).  I do not believe Petitioner intended neglect, indifference, or disregard for its residents.  Nevertheless, Resident 4 was subject to an unsafe environment and lack of adequate assistance that resulted in actual and repeated harm.  And the facility's actions towards Resident 12 can best be described as indifferent, but at the least contributed to mental trauma that required hospital intervention.  Accordingly, some level of culpability is apparent here.

And while inaccurate record-keeping does not by itself indicate either serious noncompliance or great culpability, it is certainly the case that inaccurate record-keeping for any resident could have the potential for harm, and taken in conjunction with the other deficiencies apparent here, suggests a lack of effort to ensure the highest possible level of care for either Resident 4 or Resident 12.

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I therefore find reasonable and sustain CMS's imposition of a $503 per-day CMP for 195 days of noncompliance from April 5, 2016 to October 16, 2016, for a total CMP of $98,085.

• 1. CMS subsequently re-designated this provision as 42 C.F.R. § 483.21(b)(3)(ii).  81 Fed. Reg. 68,688, 68,827, 68,858, 68,859 (Oct. 4, 2016).  CMS now associates failure to provide services by qualified persons under Tag F659.  State Operations Manual (SOM) App'x PP at 217-18, available at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Downloads/Appendix-PP-State-Operations-Manual.pdf (last rev. Nov. 22, 2017).  I will refer to Tag F282 and the regulation in effect at the time of the survey.
• 2. This provision is now designated as 42 C.F.R. § 483.25(d), with some revisions.  81 Fed. Reg. at 68,828, 68,860.  CMS now associates failure to provide supervision and assistive devices to prevent avoidable accidents under Tag F689.  SOM App'x PP at 284.  Again, I refer to Tag F323 and the regulation in effect at the time of survey.
• 3. Scope and severity levels are used by CMS and state survey agencies to select remedies.  The scope and severity level is designated by letters "A" through "L," selected from the scope and severity matrix published in the SOM, Ch. 7, § 7400.3.1 (Rev. 185, Nov. 16, 2018).  Facilities with deficiencies of levels A, B, or C remain in substantial compliance.  Id., citing 42 C.F.R. § 488.301.  Levels D, E, or F indicate a deficiency that presents no actual harm, but has the potential for more than minimal harm that does not amount to immediate jeopardy.  Id.  Levels G, H, or I indicate a deficiency that involves actual harm that does not amount to immediate jeopardy.  Id.  Scope and severity levels J, K, and L contain deficiencies that constitute immediate jeopardy to resident health or safety.  Id.  The matrix specifies which remedies are required and optional at each level based upon the pervasiveness of the deficiency.  Relevant here, a scope and severity level of "G" indicates an isolated deficiency that involves actual harm but does not pose an immediate jeopardy to resident health or safety.  Id.
• 4. Again, CMS has re-designated the tags and regulatory provisions associated with these deficiencies.  I refer to the tags and regulations in effect at the time of the survey.
• 5. The MDS provides a comprehensive assessment of a resident's functional capabilities and health problems.  See 42 C.F.R. § 483.20(b).  As part of the MDS, Petitioner's staff conducted a Brief Interview for Mental Status (BIMS); Resident 4 received a BIMS score of 12 out of 15, indicating moderate cognitive impairment.  CMS Ex. 1 at 4; see also Long-Term Care Facility Resident Assessment Instrument 3.0 User's Manual Ver. 1.14, Chapter 3, Section C0500, Page C-14, available at https://downloads.cms.gov/files/MDS-30-RAI-Manual-V114-October-2016.pdf (last rev. Oct. 2016)
• 6. While CMS submitted the facility's investigative reports for the March and April 2016 falls as one document, Petitioner submitted its investigative report of the March 2016 fall as P. Ex. 7 and its report for the April 2016 fall as P. Ex. 10.
• 7. Given Resident 4's status as a bilateral leg amputee, this would appear to be typographical error.
• 8. Indeed, the facility recognized upon Resident 4's admission that it needed to "[e]ducate/remind resident to request assistance prior to ambulation;" that she twice fell while using her wheelchair demonstrates that its initial intervention was insufficient to prevent further harm.  CMS Ex. 8 at 17.
• 9. Signature also claims the period of noncompliance is arbitrary because CMS requires a future date of return to compliance in any Plan of Correction.  P. Br. at 18.  However, if Signature truly believed the deficiencies had been corrected by April 11, 2016, it should never have submitted a Plan of Correction at all, and instead argued to CMS it had returned to compliance on that date by virtue of discharging Residents 4 and 12.