Mount Carmel Senior Living, DAB CR5654 (2020)

DECISION

Mount Carmel Senior Living (Petitioner or facility), challenges the Centers for Medicare & Medicaid Services’ (CMS’s) determination that the facility was not in substantial compliance with the Medicare program participation requirement at 42 C.F.R. § 483.25(h).1  Petitioner also challenges the civil money penalty (CMP) CMS imposed based on that alleged noncompliance.  For the reasons discussed below, I affirm CMS’s determination.  I conclude that Petitioner did not substantially comply with 42 C.F.R. § 483.25(h), and the CMP, $2,503 per day for 29 days for a total CMP of $72,587, is reasonable in amount and duration.

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I.  Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in O’Fallon, Missouri, that participates in the Medicare program as a provider of services.  See CMS Exhibit (Ex.) 4 at 1.  The Missouri Department of Health and Senior Services (state agency) completed a survey of Petitioner’s facility on September 6, 2016.  Id.  Based on this survey, CMS concluded that Petitioner was out of substantial compliance with Medicare participation requirements and that the noncompliance represented an isolated instance of actual harm to a resident that is not immediate jeopardy (scope and severity level “G”).  CMS Ex. 1 at 1.  CMS determined that Petitioner returned to substantial compliance effective October 5, 2016.  Id.

Based on the finding of substantial noncompliance, CMS imposed a CMP of $2,503 per day for 29 days of noncompliance (September 6, 2016, through October 4, 2016) for a total CMP of $72,587.  Id.  Petitioner timely appealed, and the case was assigned to me for a hearing and decision.

I issued an Acknowledgment and Prehearing Order, dated January 12, 2017 (Prehearing Order).  Pursuant to the Prehearing Order, the parties submitted prehearing exchanges consisting of briefs (CMS Br. and P. Br.) and proposed exhibits, including the written direct testimony of proposed witnesses.  The Prehearing Order notified the parties that they must note objections to exhibits and request to cross‑examine witnesses in the course of their prehearing exchanges.  Prehearing Order ¶¶ 7, 9.  CMS offered 12 proposed exhibits, including the written direct testimony of one witness (CMS Ex. 12).  Petitioner offered 27 proposed exhibits, including the written direct testimony of four witnesses (P. Exs. 12-15).  As required by the Prehearing Order, the parties submitted written objections to proposed exhibits.  Petitioner objected to CMS Exs. 4, 7, 8, 9, 10, and 12; CMS objected to P. Ex. 27.  During a December 6, 2017 telephone prehearing conference, I overruled Petitioner’s objections to CMS Exs. 4 and 12.  I reserved ruling on Petitioner’ objections to CMS Exs. 7-10 and CMS’s objection to P. Ex. 27.  I summarized those rulings in an order issued December 20, 2017.

On March 13, 2018, I convened a hearing by video-teleconference (VTC).  I presided from the offices of the Departmental Appeals Board (DAB) in Washington, D.C.  The parties and witnesses appeared via VTC from the offices of Petitioner’s counsel in St. Louis, Missouri.  At the hearing, Petitioner cross‑examined Shanna Matheney, R.N., a surveyor employed by the state agency who participated in the survey of Petitioner’s facility.  Tr. at 26, 28; see also CMS Ex. 12 at ¶¶ 1, 7.  CMS cross‑examined Petitioner’s administrator, T. Christopher Brown; its Director of Nursing (DON), Susan Wilson; and one of its charge nurses, Teresa Sadler.  Tr. at 159, 169, 224.  In the course of the hearing, CMS’s witness laid a foundation for CMS Exs. 7-10 and CMS withdrew its objection to P. Ex. 27.  Tr. at 109-15, 224.  In summary, I admitted into evidence CMS Exs. 1-12 and P. Exs. 1-27.  Id. at 12, 26, 110-15,

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224.  Following the hearing, the parties filed posthearing briefs (CMS Posthrg. Br.; P. Posthrg. Br.) and posthearing replies (CMS Reply; P. Reply).

II.  Issues

The issues in this case are:

Whether Petitioner was in substantial compliance with the requirements of 42 C.F.R. § 483.25(h) (Tag F323, relating to accident prevention and adequate supervision) from September 6, 2016, through October 4, 2016; and

If Petitioner was not in substantial compliance with program requirements, whether the CMP imposed ($2,503 per day) is reasonable.

III.  Jurisdiction

I have jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13), (b)(14)(i).

IV.  Discussion

A. Statutory and Regulatory Background

The Act sets forth requirements for SNFs to participate in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  See Act § 1819 (42 U.S.C. § 1395i‑3); 42 C.F.R. parts 483 and 488.  To participate in the Medicare program, a SNF 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 and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.  A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act (42 U.S.C. § 1395i-3(b), (c), and (d)), or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B.  Id.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  Id.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20.  The Act and regulations require that facilities be surveyed on average every twelve months, and more

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often if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.  The Act also authorizes the Secretary to impose enforcement remedies against SNFs that are not in substantial compliance with program participation requirements.  Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)).  The regulations specify the enforcement remedies that CMS may impose.  42 C.F.R. § 488.406.  Among other enforcement remedies, CMS may impose a per-day CMP for the number of days a SNF is not in substantial compliance.  42 C.F.R. § 488.430(a).  For CMPs assessed after August 1, 2016, relating to noncompliance occurring after November 2, 2015, per-day CMPs could range from $103 to $6,188 per day for less serious noncompliance, or from $6,291 to $20,628 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  42 C.F.R. § 488.438(a)(1) (as updated at 81 Fed. Reg. 61,538, 61,557 (Sept. 6, 2016)).

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge to challenge the noncompliance finding and enforcement remedy.  Act §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

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

1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h) because Petitioner did not provide adequate supervision and assistive devices to safeguard three residents who were at risk for falls.2

The quality of care regulation, 42 C.F.R. § 483.25, states generally that “[e]ach resident must receive and the facility must provide 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.”  Subsection 483.25(h) imposes specific obligations upon a facility related to accident hazards and accidents, as follows:

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(h) Accidents.  The facility must ensure that—

(1) The resident environment remains as free of accident hazards as is possible; and
(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

In a number of decisions, appellate panels of the DAB have explained that subsection 483.25(h) requires that a facility take “all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007), (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003) (facility must take “all reasonable precautions against residents’ accidents”), aff’g Woodstock Care Ctr., DAB No. 1726 (2000)).3  As another appellate panel observed, “Though a facility has the flexibility to choose the methods of supervision and assistance used to prevent accidents, it must also ‘provide supervision and assistance devices that reduce known or foreseeable accident risks to the highest practicable degree, consistent with accepted standards of nursing practice.’”  Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (citing Century Care of Crystal Coast, DAB No. 2076 at 6-7 (2007), aff’d, Century Care of Crystal Coast v. Leavitt, 281 F. App’x 180 (4th Cir. 2008)).

As I explain in greater detail below, the weight of the evidence establishes that Petitioner did not comply substantially with 42 C.F.R. § 483.25(h).  

a. Facts

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

Petitioner’s Gait Belt Policy.  Petitioner adopted a “Nursing Services Policy and Procedure” titled “Gait Belts” (Gait Belt Policy).  CMS Ex. 5.  The Gait Belt Policy provided, among other requirements:

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Gait belts will be carried at all times when on duty.  Gait belts will be used when transferring or ambulating residents that require the assistance of a CNA [certified nursing assistant]/CMT [certified medical technician]/Nurse to ambulate or transfer.  (If a resident can ambulate or transfer safely without the assistance of the direct care, the belt is not required for that resident.)

Id.

Resident 1.4  At the time of the survey (September 6, 2016), Resident 1 was an 87‑year‑old woman who had been admitted to Petitioner’s facility on August 3, 2016, for skilled rehabilitation services.  CMS Ex. 7 at 1; P. Ex. 5 at 2, 4.  Resident 1’s diagnoses included fractures of her pelvis and right ribs, chronic obstructive pulmonary disease (COPD), cerebral infarction, deep venous thrombosis (DVT), and hypertension.  P. Ex. 5 at 18-19.  She was noted to have a history of falling.  Id. at 19.

Petitioner’s staff completed a “Preliminary Plan of Care” dated August 3, 2016.  P. Ex. 3; see also CMS Ex. 7 at 3-4 (duplicate).  The plan consists of a form on which Petitioner’s staff checked that Resident 1 required assistance with dressing, grooming, transfer, mobility, toileting (bladder), and bathing.  P. Ex. 3 at 1.  The form also noted that the resident was at risk for falls based on her history and problems with balance.  Id. at 2.  The preliminary care plan did not identify specific approaches that staff were to use in managing Resident 1’s fall risk.  Id.  However, a “CNA Daily Care Plan” form, also dated August 3, 2016, documented that Resident 1 required a two-person assist with the use of a gait belt for transfers.  P. Ex. 4 at 1 (“Gait belt assist x2”).  Similarly, nursing notes recorded at 11:39 p.m. on August 3, 2016, documented that the resident required the assistance of two persons when transferring to the bedside commode (BSC).  P. Ex. 2 (“2 assist with transfers to BSC”).

Resident 1’s Minimum Data Set (MDS) assessment, dated August 10, 2016, documented that, during the look-back period, she required extensive assistance of two or more staff with many activities of daily living (ADLs), including transfers, toileting, and personal hygiene.  P. Ex. 5at 15.  Based on Resident 1’s MDS assessment, the care areas for ADL functional/rehabilitation potential, urinary incontinence, and falls, among others, were triggered.  Id. at 36.  Petitioner’s staff documented that these care areas were addressed in Resident 1’s care plan of August 16, 2016.  Id.

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Resident 1’s August 16 care plan included approaches to improve the resident’s ADL performance and to prevent falls.  For example, Petitioner documented that Resident 1 “require[s] extensive [assistance] with . . . ADLs”.  P. Ex. 10 at 1.5  Approaches for this problem included:  “ensure call light is within reach” and “encourage [resident] to complete tasks . . . with assist from staff only as needed to promote independence.”  Id.  Petitioner additionally documented that Resident 1 was “at risk for possible falls [related to her] decreased gait and balance.”  Id. at 2.  One approach for fall prevention noted that the resident “need[s] staff assistance with all transfers, ambulation, toileting, and ADL care.”  Id.  Consistent with the approaches in Resident 1’s care plan, nursing notes from August 15, and 16, 2016, documented that the resident required the assistance of one person (“assist x1”) for ADLs and transfers.  P. Exs. 8, 9.

From August 4, through August 16, 2016, Resident 1 participated in physical therapy (PT) and occupational therapy (OT) with goals to increase her independence and return to her prior level of function.  See P. Exs. 6, 7.  The OT notes documented that, on August 4, 2016, Resident 1 required “total assist” with “toilet hygiene.”  P. Ex. 6 at 1.  Resident 1 progressed in therapy to the point that the OT note of August 16, 2016, documented that the resident was able to complete “[t]oilet transfers with use of walker and [bedside commode] placed over the toilet with [stand-by assistance] for safety.”  Id. at 6.  Nevertheless, on August 16-17, 2016, Resident 1’s care plan did not document that staff were to provide stand-by assistance when transferring the resident.  P. Ex. 10.

At or about 2:45 a.m. on August 17, 2016, Resident 1 used her call light to request assistance to transfer to the bedside commode.  P. Ex. 11 at 1.  Teresa Sadler, a licensed practical nurse (LPN) employed by Petitioner, responded to Resident 1’s call light.  Id.; see also P. Ex. 12 at ¶ 7.  Nurse Sadler documented in the nursing notes the following incident:

[Resident] transferred and pivoted well with walker with 1 assist.  Assisted [resident] to pull down adult undergarment, while I turned my head to look at the bed to see if it was wet, I heard BSC move and [saw resident] go down and land on L side of body.  [Resident] did not hit head.

P. Ex. 11 at 1.  Nurse Sadler did not use a gait belt when assisting Resident 1 to the bedside commode.  P. Ex. 12 at ¶¶ 14, 15.  Following the fall, Resident 1 complained of pain to her left leg.  Id.  X-rays revealed that the resident sustained a left femoral neck fracture with mild displacement.  CMS Ex. 7 at 14.

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Resident 5.  As of the September 6, 2016 survey, Resident 5 was 81 years old.  The resident had been admitted to Petitioner’s facility on August 1, 2016, for skilled nursing and rehabilitation services following a stroke.  See, e.g.,CMS Ex. 8 at 6, 22.  Resident 5’s diagnoses included cerebrovascular accident (CVA), right hemiplegia and hemiparesis following cerebral infarction, DVT of left lower extremity, hypertension, osteoporosis, vitamin D deficiency, dementia, and major depressive disorder.  Id. at 11.  She was noted to have a history of falling.  Id. at 1, 5.  On August 1, 2016, Petitioner’s staff prepared a preliminary plan of care for Resident 5.  Id. at 6-7; See also P. Ex. 18.  The preliminary care plan documented that Resident 5 required the assistance of 2 staff (“assist x 2”) for transfers.  CMS Ex. 8 at 6.  Resident 5 used a wheelchair for ambulation.  Id.

On August 4, 2016, Resident 5 apparently fell from her wheelchair to the floor while in her room.  P. Ex. 19.  The resident could not explain what happened to her.  Id.  Resident 5’s physician gave a new order for a chair alarm following the incident.  Id.  A handwritten (but unsigned) document dated August 4, 2016, stated that, to prevent Resident 5 from sustaining further falls in the next 30 days, Petitioner would implement the following interventions:

• Make sure the resident’s chair and bed alarms are on;
• Do not leave the resident unattended in her room in her wheelchair;
• Make sure resident has call light in reach;
• Replace push-button call light with flat model; and
• Make sure resident’s bed is in low position.

CMS Ex. 8 at 31.

The instruction not to leave Resident 5 unattended in her room in her wheelchair does not appear in Resident 5’s typewritten care plan.  P. Ex. 16.  By contrast, the care plan incorporates the chair alarm as an intervention, with a start date of August 20, 2016.  See id. at 7.

Resident 5 again fell on August 21, 2016.  CMS Ex. 8 at 32; P. Ex. 20.  Petitioner’s Director of Nursing (DON) documented that at or about 4:00 p.m., as she was making rounds, she “saw resident transfer self from wheel chair to bed and resident slid to mat on floor from side of bed.  No injuries noted or reported.”  P. Ex. 20; see also CMS Ex. 8 at 32.  Although Resident 5’s care plan called for her to have a chair alarm (P. Ex. 16 at 7), the DON’s note does not indicate that the chair alarm was on the resident’s wheelchair at the time of the fall or that the alarm sounded when the resident attempted to transfer herself.  See P. Ex. 20.  I therefore find it more likely than not that the chair alarm was not in place at the time.

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Resident 6.  In August of 2016, Resident 6 was 88 years old.  See, e.g., CMS Ex. 9 at 1.  She was a long-term resident of the facility.  P. Ex. 23 (resident “will stay her[e] long term”).  Resident 6’s diagnoses included dementia, depression, diabetes, peripheral neuropathy, rheumatoid arthritis, hypertension, and chronic kidney disease.  CMS Ex. 9at 6.  She had a history of falling and had previously suffered a left femur fracture.  Id.  Resident 6’s annual MDS assessment, dated July 21, 2016, documented that she required extensive assistance of one person for bed mobility, transfers, dressing, and bathing.  Id. at 3.  She required limited assistance of one person for toilet use, personal hygiene, and ambulation.  Id.

On August 3, 2016, Resident 6 experienced a fall in the bathroom.  Id. at 8.  A CNA assisted the resident into the bathroom, but left her unattended on the toilet to answer another resident’s call light.  Id.  Although the CNA instructed the resident to wait for her to return or to use her call light if she needed immediate assistance, Resident 6 got up unattended and fell.  Id.; see also P. Ex. 22.  Nursing staff assessed her following the fall and noted a 2 cm hematoma to the back of Resident 6’s skull.  CMS Ex. 9 at 8.  On August 4, 2016, Resident 6 again fell.  Id.  The resident reported that she was in her recliner in her room when her telephone rang.  Id.  She got up to answer the telephone and fell.  Id.  None of Petitioner’s staff saw the resident fall, but a housekeeper heard her fall and alerted nursing staff.  Id.  Following this fall, a nurse assessed the resident as having an abrasion and bruising to her right upper humerus.  Id.

On August 5, 2016, a physical therapist evaluated Resident 6 to determine if she could benefit from skilled therapy to reduce her fall risk.  CMS Ex. 9 at 6-7.  The therapist determined that Resident 6 was functioning at her baseline and, accordingly, no skilled intervention was indicated.  Id. at 6.  The therapist did “[r]ecommend continued use of fall alarm and supervision with all mobility.”  Id.

A handwritten CNA care plan, dated August 5, 2016, included under “other special care needs” that Resident 6 required a personal alarm for wheelchair and bed.  P. Ex. 26 at 2.  However, Resident 6’s typewritten care plan did not include bed or chair alarms as interventions for Resident 6.  See P. Ex. 21; cf P. Ex. 16 at 7 (Resident 5’s care plan for chair alarm, entered under “Basic Needs and Preferences”).

b. Analysis

CMS urges me to conclude that Petitioner failed to comply substantially with 42 C.F.R. § 483.25(h) based on the care provided to Residents 1, 5, and 6, each of whom was assessed as at risk for falls.  CMS argues that Petitioner’s care of Resident 1 was deficient because staff did not use a gait belt to assist Resident 1 in transferring to the bedside commode on August 17, 2016, contrary to the resident’s care plan and Petitioner’s Gait

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Belt Policy.  CMS Posthrg. Br. at 4-8.  CMS contends that Petitioner’s care of Residents 5 and 6 was deficient because Petitioner’s staff did not implement additional interventions when the care-planned interventions proved inadequate to prevent the residents from falling.  Id. at 8-13.  Petitioner asserts that it provided adequate supervision and assistive devices for the residents and, accordingly, it substantially complied with 42 C.F.R. § 483.25(h).  P. Posthrg. Br. at 8-15.

As I explain in greater detail below, the record developed before me does not demonstrate that Petitioner took “all reasonable measures” to protect residents at risk for falling.  See Briarwood, DAB No. 2115 at 11.  As such, Petitioner failed to “provide supervision and assistance devices that reduce known or foreseeable accident risks to the highest practicable degree, consistent with accepted standards of nursing practice.”  Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (internal quotation marks omitted).

In the case of Resident 1, Petitioner argues that staff were not required to use a gait belt on August 17 because, by that date, the resident could perform transfers with stand-by assistance (i.e., she no longer required direct assistance with transfers).  P. Posthrg. Br. at 10.  Petitioner bases its contention that Resident 1 required only stand-by assistance as of August 16, 2016, on the OT note of that date.  Id.  Petitioner asserts that Nurse Sadler knew Resident 1 had progressed to stand-by assistance in her OT sessions and therefore deemed it appropriate to transfer her without using a gait belt.  Id. at 10-11.  However, Resident 1’s August 16 care plan did not document that the resident was capable of performing transfers with only stand-by assistance.

I find that, even if Nurse Sadler knew that Resident 1 had achieved stand-by assistance during her therapy sessions, this was not a justification for departing from the interventions prescribed in the resident’s care plan.  Although Resident 1 may have practiced transfers without direct assistance under a therapist’s supervision during a therapy session, it does not necessarily follow that she was capable of performing at that level outside therapy.  Indeed, I infer it is more likely than not that Resident 1’s ability to transfer with stand-by assistance was not yet confirmed outside of therapy on August 16‑17, 2016.  I draw this inference in part because there is no evidence that Petitioner’s rehabilitation department had requested nursing staff to begin transferring the resident using only stand-by assistance, rather than direct assistance as of August 16, 2016.  I note that a form headed “Rehab Instruction Record” is in evidence as page 33 of CMS Ex. 8.  Although this form relates to Resident 5 rather than Resident 1, I nevertheless infer from it that Petitioner’s rehabilitation department had a mechanism to communicate (in writing) recommendations to nursing staff regarding interventions for specific residents.

The written direct testimony of Petitioner’s rehabilitation director does not detract from my inference that Resident 1 demonstrated proficiency in transferring with stand-by assistance only in therapy.  Ms. Lohaus testified that Resident 1 was able to transfer with

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stand-by assistance twice during a therapy session on August 16, 2016.  P. Ex. 14 at ¶ 4 (emphasis added).  Ms. Lohaus did not testify that she notified the nursing department or the MDS Coordinator that a change to Resident 1’s care plan was indicated.  Moreover, even if Petitioner’s rehabilitation staff subjectively believed that, as of August 16, 2016, stand-by assistance was appropriate for transferring Resident 1, that opinion would not be dispositive.  As Petitioner itself has pointed out, not every intervention that is considered becomes part of a resident’s care plan.  See P. Posthrg. Br. at 12-13.  Rather, interventions become part of the care plan only after the MDS Coordinator and Interdisciplinary Care Team (IDT) approve them.  Tr. at 195-97.  Petitioner produced no written documentation that Resident 1’s care plan had been updated as of August 17, 2016, to reflect that Resident 1 required only stand-by assistance for transfers.  I infer from this that the previous interventions remained in effect.  Therefore, Resident 1 required, at a minimum, the direct assistance of one staff member for transfers.  Because she required direct assistance, Petitioner’s Gait Belt Policy required that staff use a gait belt when assisting Resident 1.  Nurse Sadler did not do so on August 17, 2016.

In the case of Resident 5, her care plan called for her to have a chair alarm to alert staff if she attempted to transfer unassisted.  P. Ex. 16 at 7.  Yet, when documenting the fall that Resident 5 sustained on August 21, 2016, Petitioner’s DON did not indicate that the chair alarm was on the resident’s wheelchair or that the alarm sounded when the Resident got up to transfer herself from her wheelchair to her bed.  See P. Ex. 20; see also P. Ex. 16 at 7.  As noted above, I infer from the absence of documentation that the chair alarm was not in place at the time of the resident’s August 21 fall.6

Based on these incidents, I find that Petitioner’s care of Resident 1 and Resident 5 did not conform to the residents’ care plans.  Additionally, Petitioner failed to comply with its Gait Belt Policy when transferring Resident 1.  These circumstances are sufficient to support a finding of substantial noncompliance with 42 C.F.R. § 483.25(h).  Appellate panels of the DAB have held that the regulation obligates the facility “to furnish the care and services set forth in a resident’s care plan, to implement doctors’ orders, to monitor

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and document the resident’s condition, and to follow its own resident care policies.”  Life Care Ctr. of Bardstown, DAB No. 2479 at 22 (2012) (citing cases), aff’d, Life Care Ctr. of Bardstown v. Sec’y of Health & Human Servs., 535 F. App’x 468 (6th Cir 2013); see also Good Shepherd Home for the Aged, Inc., DAB No. 2858 at 12 (2018). Similarly, appellate panels have reasoned that a facility’s “failure to comply with its own policies can support a finding that the facility did not achieve compliance with the regulatory standard.”  Bivins Mem. Nursing Home, DAB No. 2771 at 9 (2017); see also Sheridan Health Care Ctr., DAB No. 2178 at 32 (2008) (observing that a facility’s adoption of a resident care policy supports an inference that the policy was “necessary to attain or maintain resident well-being”).

In the case of Resident 6, I conclude that Petitioner failed to comply substantially with 42 C.F.R. § 483.25(h) because Petitioner failed to ensure that Resident 6’s care plan documented that Resident 6 required a personal alarm for her bed and wheelchair ‒ something Petitioner’s staff had determined Resident 6 needed to keep her safe.  See CMS Ex. 9 at 6; P. Ex. 26 at 2.  As such, CMS might have concluded that Petitioner failed to comply with the regulation requiring facilities to develop a comprehensive care plan for each resident.  See 42 C.F.R. § 483.20(k).  Petitioner argues that CMS’s failure to cite a deficiency in its care-planning compels a conclusion that it was not out of compliance with section 483.25(h).  See, e.g., P. Reply at 18.  I disagree.  To the contrary, I find the omission of a bed/chair alarm from Resident 6’s care plan equally represents a failure in accident prevention.  As I have just explained, the quality of care requirements in section 483.25 obligate the SNF “to furnish the care and services set forth in a resident’s care plan.”  Life Care Ctr. of Bardstown, DAB No. 2479 at 22.  From this premise, one may infer that, if a facility neglects to include needed interventions in a resident’s care plan, there is a risk that the omitted intervention will not be provided to the resident, as apparently occurred in the case of Resident 6.

Based on the foregoing, I conclude that Petitioner did not take all reasonable measures to provide supervision and assistive devices to minimize the fall risks to which Residents 1, 5, and 6 were exposed.  Petitioner’s failure to implement care-planned interventions or to update care plans with interventions necessary to minimize the residents’ fall risks put the residents at risk for more than minimal harm.  Indeed, Resident 1 suffered a hip fracture as a result of her fall and Resident 6 sustained bruises and abrasions.  Thus, Petitioner was not in substantial compliance with the requirements of 42 C.F.R. § 483.25(h).  

2. Any alleged shortcomings in the survey process are not material to my review.

Petitioner criticizes the state agency’s investigative process during the survey.  P. Posthrg. Br. at 15-20.  For example, Petitioner characterizes Surveyor Matheney as having “ignored or failed to discover relevant evidence, structured the record so as to

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exclude relevant evidence, and ignored relevant evidence in her possession, all with the intent to support her determination of noncompliance, or if nothing else, to fabricate one.”  Id. at 16.  For these reasons, Petitioner argues I should accord the surveyor’s testimony no weight.  I find no support in the record for Petitioner’s assertion that Surveyor Matheney ignored or fabricated evidence or otherwise acted improperly during the survey.  Moreover, even if the state agency’s investigation was in some way flawed (a conclusion I do not draw), that would not be a basis to overturn the deficiency findings.

Whatever may be in a surveyor’s mind when he or she (and possibly others within the state agency) decides to cite a deficiency and decides what scope and severity to assign, that initial decision is merely a recommendation to CMS.  See, e.g., Britthaven of Chapel Hill, DAB No. 2284 at 6-7 (2009) (state agency merely recommends a finding of compliance or noncompliance; CMS ultimately determines whether the facility is in substantial compliance and whether immediate jeopardy exists).  Accordingly, “the quality of the surveyors’ information gathering or thought processes is immaterial.”  Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 33 (2011).  This is because the administrative law judge finds the facts de novo based on the evidence before her.  In reaching my conclusion described above, that Petitioner failed to comply substantially with 42 C.F.R. § 483.25(h), I have reviewed all the evidence, with particular focus on the residents’ medical records maintained by Petitioner.  Petitioner’s attempt to discredit the surveyor and survey process is therefore unavailing.  Because I have concluded that CMS properly found that Petitioner did not comply substantially with 42 C.F.R. § 483.25(h), I next consider whether the CMP imposed is reasonable.

3. A CMP of $2,503 per day for the period September 6, 2016, through October 4, 2016, is reasonable in amount and duration.

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

The regulations specify that a per-day CMP will fall into one of two ranges of penalties.  42 C.F.R. §§ 488.408, 488.438.  The upper range of a CMP, $6,291 to $20,628 per day, is

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reserved for deficiencies that pose immediate jeopardy to a facility’s residents and, in some circumstances, for repeated deficiencies.  42 C.F.R. § 488.438(a)(1)(i), (d)(2).7  The lower range of a CMP, $103 to $6,188 per day, is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii).  In assessing the reasonableness of a CMP amount, an administrative law judge considers the per-day amount, rather than the total accrued CMP.  See Kenton Healthcare, LLC,DAB No. 2186 at 28 (2008).  The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the administrative law judge, requiring only that the regulatory factors at §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2); 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2) and (3); Alexandria Place,DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC,DAB No. 2186 at 28-29.

In this case, CMS imposed a CMP of $2,503 per day for 29 days of noncompliance (September 6, 2016, through October 4, 2016).  CMS argues that the CMP amount is reasonable.  CMS Posthrg. Br. at 13-15.  Petitioner argues that the CMP is unreasonable because it is inconsistent with CMP amounts CMS has imposed in other cases.  P. Posthrg. Br. at 21.  Petitioner additionally argues that the CMP is unreasonable because “it completely wipes out any margin generated by Petitioner for all residents in 2016.”  Id. at 22. 

Petitioner’s first argument ‒ that the CMP imposed is unreasonable because “CMS has historically imposed CMPs closer to the lower end of those permitted by regulation” (P. Posthrg. Br. at 21) ‒ is not relevant to my evaluation of the CMP.  The burden is on Petitioner “to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.”  Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 26-27 (emphasis added).  No regulatory factor in 42 C.F.R. § 488.438(f) or 42 C.F.R. § 488.404 authorizes me to consider what CMP amount CMS has imposed on other facilities, based on other facts, in evaluating the CMP imposed in this case.

Accordingly, I consider only Petitioner’s argument that the CMP is unreasonable based on its financial condition.  The regulations specify that a facility’s financial condition is a factor in determining the reasonableness of a CMP.  42 C.F.R. § 488.438(f)(2).  I have considered Petitioner’s contention that the amount of the CMP exceeds its profit margin for 2016.  However, as appellate panels of the DAB have held, “the issue is not whether

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the penalties exceeded operating income, but whether [the facility’s] assets were sufficient to pay the penalties.”  Wisteria Care Ctr.,DAB No. 1892 at 12-13 n.7 (2003) (emphasis omitted).  As another appellate panel explained, “The key factor in assessing financial condition is whether the facility has adequate assets to pay the CMP without having to go out of business or compromise resident health and safety.”  Windsor Health Care Ctr., DAB No. 1902 (2003) (emphasis omitted), aff’d, Windsor Health Care Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005).

Measured by this standard, I do not find that Petitioner’s financial condition renders the CMP imposed unreasonable.  Petitioner’s financial statement addresses only the facility’s income and expenses for 2016.  See P. Ex. 27; see also Tr. at 224 (P. Ex. 27 is a compilation of the facility’s “monthly profit/loss statements”).  The statement includes no documentation of Petitioner’s overall assets and liabilities.  Id.  Thus, Petitioner has not offered evidence that paying the CMP would force it to go out of business or to compromise resident health or safety.

Although I do not find that Petitioner’s financial condition warrants any reduction in the CMP amount, I nevertheless have considered de novo whether the CMP amount is reasonable, based on the remaining factors enumerated in the regulations.  Applying those factors, I find that Petitioner’s noncompliance in this case was serious, in that at least two residents suffered actual harm as a result of the falls they experienced.  Resident 1 sustained a fracture, while Resident 6 sustained abrasions and bruising.  CMS Ex. 7 at 14; CMS Ex. 9 at 8.  I further find that Petitioner was culpable (i.e., responsible) for the noncompliance.  The $2,503 per-day CMP that CMS imposed is near the middle of the CMP range for deficiencies that do not pose immediate jeopardy to resident health and safety ($103 to $6,188 per day).  42 C.F.R. § 488.438(a)(1)(i), (d)(2).  I find that a CMP near the middle of the range for non-immediate jeopardy deficiencies is reasonable, given the seriousness of the noncompliance for which Petitioner was responsible.

Petitioner has not argued (should I find substantial noncompliance existed) that it returned to substantial compliance earlier than October 4, 2016.  Accordingly, I find that the duration of the CMP, from September 6, 2016, through October 4, 2016, is reasonable.

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V.  Conclusion

For the foregoing reasons, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h).  I further conclude that the CMP of $2,503 per day effective September 6, through October 4, 2016, is reasonable in amount and duration.

• 1. Effective November 28, 2016, 42 C.F.R. § 483.25(h) was redesignated as 42 C.F.R. § 483.25(d).  81 Fed. Reg. 68,688, 68,860 (October 4, 2016).  I cite to the version of the regulation that was in effect at the time the findings of substantial noncompliance were issued.  See Carmel Convalescent Hosp., DAB No. 1584 at 2 n.2 (1996) (applying regulations in effect on the date of the survey and resurvey).
• 2. My conclusions of law appear as headings in bold italic type. My findings of fact appear in the accompanying text.
• 3. The appellate panel in Briarwood focused its discussion on whether the facility complied substantially with 42 C.F.R. § 483.25(h)(2).  The same reasoning would seem equally applicable to subsection 483.25(h)(1), however.  Moreover, at least one appellate panel has opined that the duty to take all reasonable steps applies to 42 C.F.R. § 483.25(h) as a whole.  See Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017).
• 4. To protect their privacy, I refer to the residents by the numerical identifiers assigned during the survey.  See CMS Ex. 2.
• 5. Resident 1’s care plan is also in the record as CMS Ex. 7 at 21-24. The care plan in CMS Ex. 7 appears in a different format from that in P. Ex. 10, but the substance is the same.
• 6. Both CMS and Petitioner devote significant argument to whether Petitioner failed to supervise Resident 5 adequately on August 21, 2016, because Petitioner’s staff left Resident 5 alone in her room while in her wheelchair.  CMS argues that, in doing so, Petitioner failed to carry out an intervention prescribed in Resident 5’s care plan. CMS Posthrg. Br. at 9.  Petitioner argues that Resident 5’s care plan did not include such an intervention, which would be inappropriate in any event, according to Petitioner.  P. Posthrg. Br. at 12‑14.  I need not decide whether Petitioner’s supervision of Resident 5 was inadequate because, for the reasons described above, I conclude that Petitioner’s failure to ensure Resident 5 had a chair alarm on her wheelchair represents a failure to comply with 42 C.F.R. § 483.25(h).
• 7. The CMP ranges listed in the regulations are adjusted annually for inflation under 45 C.F.R part 102.  The amounts I cite here were those in effect at the time CMS imposed the remedies at issue in the present case.  See 81 Fed. Reg. 61,538, 61,557 (Sept. 6, 2016).