Spectrum Health Rehab and Nursing Center - Fuller Ave, DAB CR5885 (2021)

DECISION

Spectrum Health Rehab and Nursing Center – Fuller Ave (Petitioner or facility), a skilled nursing facility (SNF) participating in the Medicare program, discharged Resident 19, a 74-year-old resident with kidney disease, type II diabetes, heart failure, bipolar disorder, schizophrenia, limited range of motion, and hand contractures, from occupational therapy in July 2017.  At that time and during the following 12 to 13 months, Petitioner assessed Resident 19 as having impairments on both sides of her upper extremities and difficulty with self-feeding due to multiple digit deformities and contractures.  There is no documentation in the record that, after discharging Resident 19 from occupational therapy in July 2017, Petitioner provided additional treatment or services to prevent a further decrease in Resident 19’s range of motion until an August 2018 Centers for Medicare & Medicaid Services (CMS) sponsored survey of the facility revealed the lack of treatment and services.  Based on the results of the survey, CMS found Petitioner to be in substantial noncompliance with the Medicare requirement for SNFs at 42 C.F.R. § 483.25(c) (mobility) and imposed a $20,500 per-instance civil monetary penalty (CMP) on Petitioner.

Petitioner does not dispute that it assessed Resident 19 to have limited range of motion or that it provided occupational therapy in 2017 to assist with her ability to feed herself.  However, Petitioner asserts that its staff continued to provide range of motion

Page 2

interventions to maintain Resident 19’s functional status after the occupational therapy ended. Petitioner disputes that Resident 19 suffered any harm because of the care Petitioner provided. Accordingly, Petitioner disputes the finding of a deficiency and the reasonableness of the CMP.

As I explain below, the record supports CMS’s contention that Petitioner failed to provide appropriate treatment and services to prevent a further decrease in Resident 19’s range of motion.  This failure to show that services were provided is sufficient to conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(c)(2)(Tag F688).

Regarding the CMP amount, Petitioner disputes that Resident 19 was harmed and argues that Resident 19 did not have any decline in the range of motion.  However, there is sufficient evidence in the record to support a decline in Resident 19’s range of motion and, in particular, her hand contractures as she struggled to grasp pieces of food to feed herself and could only reach items placed directly in front of her.

Therefore, I sustain the deficiency at 42 C.F.R. § 483.25(c)(2) and conclude that CMS imposed an appropriate CMP.

I. Legal Framework

The Medicare program “provides basic protection against the costs of . . . related post-hospital . . . care” for individuals over the age of 65 who are eligible for Social Security retirement benefits and for individuals under 65 who meet other criteria. 42 U.S.C. § 1395c. Post-hospital care includes extended care services provided at an SNF. 42 U.S.C. §§ 1395f(a)(2)(B), 1395x(h)-(i).

For Medicare program purposes, an SNF is an institution that is primarily engaged in providing skilled nursing care and/or rehabilitation services for its residents, but is not primarily engaged in the care and treatment of mental diseases.  42 U.S.C. §§ 1395x(j), 1395i-3(a)(1).  Because a SNF is a “provider of services” in the Medicare program, each SNF that participates in the program must file a provider agreement with the Secretary of Health and Human Services (Secretary).  42 U.S.C. §§ 1395cc(a), 1395x(u).  Further, a participating SNF must meet a variety of ongoing requirements related to how it provides services, maintains the rights of its residents, and administers its facility.  42 U.S.C. § 1395i-3(a)(3), (b)-(d); 42 C.F.R. pt. 483, subpt. B1 .

When an SNF fails to meet a statutory or regulatory participation requirement, then the SNF has a “deficiency.”  42 C.F.R. § 488.301; see 42 U.S.C. § 1395i-3(h)(1).

Page 3

“Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.” 42 C.F.R. § 488.301; see also 42 U.S.C. § 1395i-3(h)(3). To maintain “substantial compliance,” an SNF’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.

Broadly, noncompliance that subjects an SNF to enforcement remedies is divided into two levels.  One level is comprised of deficiencies that immediately jeopardize the health or safety of residents and the other level is composed of deficiencies that do not.  42 U.S.C. § 1395i-3(h)(1).  “Immediate jeopardy” exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.

The Secretary contracts with state agencies to conduct surveys to determine whether SNFs are in substantial compliance.  42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10.  These surveys can be unannounced surveys that occur at least once every 15 months or can be in response to a complaint.  42 U.S.C. § 1395i-3(g).  When the results of a survey show that an SNF is not in substantial compliance with program participation requirements, the Secretary may impose enforcement remedies on the SNF.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  When CMS selects an enforcement remedy to impose on an SNF, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.  See 42 C.F.R. § 488.404(a)-(b);2 see also 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(III)(bb).

One such remedy is a CMP.  42 U.S.C. § 1395i-3(h)(2)(B)(ii).  CMS may impose a per‑instance CMP for each instance of the SNF’s noncompliance or a per‑day CMP for the number of days an SNF is not in substantial compliance.  42 U.S.C. § 1395i‑3(h)(2)(A), (h)(2)(B)(ii)(I); 42 C.F.R. § 488.430(a).  For CMPs assessed on or after February 3, 2017, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows:  $2,097 to $20,965 for per-instance CMPs; $105 to $6,289 per day for less serious noncompliance; or $6,394 to $20,965 per day for more

Page 4

serious noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3 (2017); 82 Fed. Reg. 9,174, 9,175, 9,182-83 (Feb. 3, 2017); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments).

If CMS imposes a CMP based on a finding of substantial noncompliance, then the SNF may request a hearing before an administrative law judge (ALJ) to challenge CMS’s initial determination of noncompliance that led to the imposition of an enforcement remedy and/or the level of noncompliance (if a successful challenge to the level would affect the range of CMP amounts imposed on the SNF).  42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii); 42 C.F.R. §§ 488.330(e)(3)(ii), 488.408(g)(1), 488.434(a)(2)(viii), 498.3(b)(13)-(14), (d)(10); see also 5 U.S.C. §§ 554, 556.  However, CMS’s choice of remedies is not reviewable.  42 C.F.R. §§ 488.438(e)(2), 488.408(g)(2), 498.3(b)(13).

If an SNF challenges the existence of a deficiency, CMS must make a prima facie case that the SNF failed to substantially comply with federal participation requirements and, if this occurs, the SNF must then prove substantial compliance by a preponderance of the evidence.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson,129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001).  If an SNF challenges CMS’s determination as to the level of noncompliance, CMS’s determination must be upheld unless it is clearly erroneous.  42 C.F.R. § 498.60(c)(2).

If an ALJ concludes that there was a basis for imposing a CMP on an SNF, then the SNF may dispute the amount of the CMP.  The ALJ’s review of the CMP amount is limited to considering the statutory and regulatory factors for setting a CMP amount.  42 C.F.R. § 488.438(e)(3); see 42 U.S.C. §§ 1320a-7a(d), 1395i-3(h)(2)(B)(ii)(I); 42 C.F.R. § 488.438(f).  The ALJ may not reduce a CMP to zero.  42 C.F.R. § 488.438(e)(1).

Either the SNF or CMS may request Departmental Appeals Board (DAB) review of an ALJ’s decision.  42 C.F.R. § 498.80.

II. Background and Procedural History

Petitioner is an SNF that operates in Grand Rapids, Michigan.  On August 24, 28, 29, and 30, 2018, surveyors from the Michigan Department of Licensing and Regulatory Affairs (state agency) conducted complaint, life safety code, and health surveys of Petitioner’s facility.  CMS Ex. 1 at 1; CMS Ex. 3.  In a November 15, 2018 initial determination, CMS stated that the surveyors found Petitioner to be in substantial noncompliance (scope and severity level G) with the following Medicare requirements for SNFs:  42 C.F.R. § 483.25(c)(1)-(3) (Tag F688); and 42 C.F.R. § 483.25(d)(1)-(2) (Tag F689).  CMS Ex. 1 at 1.  For each of these deficiencies, CMS imposed a separate $20,500 per-instance CMP.

Page 5

CMS Ex. 1 at 2-3.  The initial determination advised Petitioner that it could request independent informal dispute resolution (IIDR) and/or request a hearing before an administrative law judge to challenge the imposition of the CMP.  CMS Ex. 1 at 5-7.

Petitioner was partially successful in the IIDR process, which resulted in CMS withdrawing the CMP for the 42 C.F.R. § 483.25(d)(1)-(2) (Tag F689) deficiency based on a reduction in the deficiency’s scope and severity level from G to D.  CMS Ex. 2 at 1.

Petitioner filed a timely request for hearing before an ALJ to dispute the November 15, 2018 initial determination, and the case was assigned to me to hear and decide.  Due to the IIDR and CMS’s withdrawal of one of the CMPs, the sole remaining deficiency for Petitioner to appeal is whether Petitioner was in substantial compliance with the Medicare requirements for SNFs at 42 C.F.R. § 483.25(c)(2) (Tag F688).  See CMS Ex. 2 at 1.

In response to the hearing request, I issued an Acknowledgment and Prehearing Order (Prehearing Order) that established a prehearing exchange schedule for the parties.  In the Prehearing Order, I directed the parties to file briefs, proposed exhibits, and written direct testimony for all witnesses the parties wanted to present in this case.

In compliance with my Prehearing Order, CMS filed an exchange, including a prehearing brief (CMS Br.) and 10 proposed exhibits (CMS Exs. 1-10), one of which was written direct testimony for a state surveyor (CMS Ex. 5).  Petitioner then filed an exchange, including a prehearing brief (P. Br.) and seven proposed exhibits (P. Exs. 1-7), which included written direct testimony from three witnesses (P. Exs. 4-6).

Neither CMS nor Petitioner objected to any of the proposed exhibits submitted by the parties.  Further, only CMS requested to cross-examine witnesses.  Therefore, in my January 5, 2021 Notice of Hearing, I set a date for a hearing at which CMS could cross-examine Petitioner’s witnesses, and I admitted CMS Exhibits 1 through 10 and Petitioner Exhibits 1 through 7 into the record.  My January 5, 2021 hearing notice only provisionally admitted Petitioner Exhibits 4 through 6, as those documents are written direct testimony for the three witnesses that CMS had requested to cross-examine.

On January 15, 2021, CMS withdrew its request to cross-examine Petitioner’s witnesses.  In a January 19, 2021 Order, I cancelled the hearing and admitted Petitioner Exhibits 4 through 6 into the record.  I also granted the parties’ request that I decide this case on the written record.  See 42 C.F.R. § 498.66.

III. Issues

1) Whether Petitioner was in substantial compliance with the Medicare requirements for SNFs at 42 C.F.R. § 483.25(c)(2) (Tag F688).

2) If Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(c)(2) (Tag F688), whether a $20,500 per-instance CMP is appropriate under the statutory and regulatory factors for setting a penalty amount.  42 U.S.C. § 1320a-7a(d) and 42 C.F.R. § 488.438(f).

IV. Findings of Fact

1. Resident 19 was first admitted to Petitioner’s facility in 2013, but Petitioner discharged Resident 19 in May or June 2014 for care at a hospital. CMS Ex. 4 at 2.

2. On June 24, 2014, Petitioner readmitted Resident 19.  CMS Ex. 4 at 1.  At that time, Petitioner was 69-years-old and had numerous admitting diagnoses, including:  chronic kidney disease; type II diabetes; abdominal aortic aneurysm, without rupture; heart failure; bipolar disorder; schizophrenia; and protein-calorie malnutrition.  CMS Ex. 4 at 1.

3. In 2015, Resident 19 was also diagnosed with muscle weakness (generalized).  CMS Ex. 4 at 27.

4. In May 2017, Petitioner’s nursing staff referred Resident 19 for occupational therapy for the following reasons (P. Ex. 1. at 1):

Patient is a 72 yo female . . . with extensive medical history and multiple comorbidities being referred by nursing due to pt report of increased difficulty with self-feeding. Pt has multiple digit deformities and contractures, limited wrist mobility, decreased elbow extension, and decreased active [range of motion] in shoulders which impede pt’s ability to successfully feed self. Pt requires utensil to be loaded and placed between D2-3, increased spilling as well due to essential tremors with mobility and limited wrist mobility allowing pronation/supination for hand to mouth task. Pt will require skilled OT to assess for best feeding position, appropriate set up, and adaptive utensils in order to increase independence with feeding.

5. On May 19, 2017, an occupational therapist evaluated Resident 19’s hands as being contracted, with the right wrist extension extremely limited.  P. Ex. 1 at 2.  The occupational therapist also indicated that extension and flexion of both wrists was limited.  P. Ex. 1 at 2.  Fine motor control was assessed as poor; however, Resident 19 retained strength of 2+/5 in her wrist and her grip.  P. Ex. 1 at 2.

Page 7

Further, Resident 19 had tremors in her non-dominant right hand when trying to grasp a cup.  P. Ex. 1. at 2.  Resident 19 told the occupational therapist that she wanted to “be able to feed myself” and the occupational therapist’s plan of care indicated the short-term goal was for Resident 19 to be able to feed herself using adaptive utensils with minimal assistance.  P. Ex. 1 at 3-4; CMS Ex. 4 at 27-28.

6. On June 15, 2017, the occupational therapist observed that Resident 19 was able to complete part of her meal with adapted utensils when not fatigued.  CMS Ex. 4 at 27.

7. By July 6, 2017, Resident 19 still needed maximum assistance with self-feeding but was able to complete part of her meal using adaptive utensils, when she was not too fatigued to do so.  CMS Ex. 4 at 27-28.  Further, Resident 19 was able to demonstrate the proper use of the adaptive utensils.  CMS Ex. 4 at 28.  The occupational therapist considered the goal “to increase independence with self-feeding” to be met.  CMS Ex. 4 at 28.

8. On July 6, 2017, the occupational therapist observed that “patient does present with weakness and fatigue impacting patient’s ability to complete self-feeding.”  CMS Ex. 4 at 29.  However, the therapist concluded that “[m]aximum benefit has been achieved.  Skilled therapy no longer indicated.”

9. The July 6, 2017 occupational therapy discharge plan was for Resident 19 to use adaptive utensils to eat, for staff to give maximum assistance assist to Resident 19 for meals, and for staff to set up snacks for Resident 19.  CMS Ex. 4 at 30.  The plan also stated:  “Will continue to follow with quarterly and annual screens.”  CMS Ex. 4 at 30.

10. On July 13, 2017, one week after discharge from therapy, an occupational therapist completed an annual screening of Resident 19 and concluded that Resident 19 did not need skilled therapy at that time.  P. Ex. 1 at 12, 30.  There are no additional records that an occupational therapist conducted any quarterly or annual assessments of Resident 19 until August 31, 2018.  See P. Ex. 1 at 30-31.

11. Facility staff periodically conducted Minimum Data Set (MDS) assessments of Resident 19.  On August 27, 2017, the functional status MDS assessment showed that Resident 19 needed extensive assistance, usually from one or two staff members, for personal hygiene, eating, dressing, and bed mobility.  This MDS assessment also indicated Resident 19 had impairments on both sides of her upper extremities (i.e., shoulder, elbow, wrist, hand).  CMS Ex. 4 at 3.  MDS

Page 8

assessments on November 26, 2017, February 25, 2018, May 27, 2018, regarding functional status remained the same.3 CMS Ex. 4 at 4-6.

12. On June 1, 2018, a speech therapist evaluated Resident 19 regarding dysphagia and difficulty swallowing.  The speech therapist did not believe speech therapy was necessary.  The evaluation did not mention or discuss Resident 19’s hand contractures.  CMS Ex. 4 at 31.

13. The record contains a Care Plan Report that purports to be effective from June 27, 2014, to present (i.e., August 29, 2018), but this document generally lacks specific dates.4   While the First page of the Care Plan report documents that Resident 19 is”[d]ependent with [activities of daily living (ADL)] and that “[r]esident with increased difficulty with self-feeding [due to] multiple digit deformities and contractures,” the diagnoses section on that page does not include contractures of the right and left hands.  CMS Ex. 4 at 8.  That page also notes that “[r]esident has demonstrated ability to self-feed finger foods independently post set-up, but is needing assist when using utensils.”  CMS Ex. 4 at 8.  This entry is not dated.

14. The Care Plan Report lists the following problems with interventions: risk for falls or injury; participation in activities to enhance psycho-social well-being; breaks in skin integrity; bladder incontinence; constipation; mood behavior; chronic pain; ADL; mobility; cardio; diabetes; vision deficit; cognitive and communication impairments; anticoagulant use; nutrition and hydration risk; and shingles. CMS Ex. 4 at 9-25.

15. Regarding the Care Plan Report entry for ADLs, it states:  “[Resident 19] requires assistance with ADLs related to chronic disease progression- paranoid schizophrenia/bipolar and chronic pain/OA and [Resident 19] has a preference for staying in bed.”  CMS Ex. 4 at 18-19.  The only goal listed is that “[Resident 19] will have ADL needs met by staff” with a goal date of December 16, 2018.  CMS Ex. 4 at 18-19.  The interventions for Resident 19’s ADL limitations are related to

Page 9

hot beverages, showers, monitoring for change in ability to complete or participate in ADLs, assist with ADLs as needed, and provide adaptive/assistive equipment as needed. CMS Ex. 4 at 18-19.

16. A Resident Summary Template, which appears to be referenced in the Care Plan Report as “RST,” provides a variety of precautions for staff to follow related to Resident 19’s ADL and mobility. CMS Ex. 4 at 26.

17. During the state agency survey, Kristy Gunderson, RN, the state surveyor, was present at the facility on August 24, 29, and 30, 2018. CMS Ex. 5 at ¶ 3. Surveyor Gunderson observed Resident 19 having difficulty moving her arms. CMS Ex. 5 at ¶ 10. Surveyor Gunderson testified about her encounter with Resident 19 as follows (CMS Ex. 5 ¶¶ 10-11):

When I saw her hands, they were dirty and curled into fists with her fingernails nearly touching her palms.  She struggled to reach items that were placed directly in front of her.  She had a large, heavy metal call light that had to be placed within a few inches of her hand or on her stomach in order for R[esident] 19 to be able to reach it.  Every time I entered her room throughout the survey (4 to 5 times the first day, and 3 to 4 times the second and third days) she asked me to get or reach something for her.  This indicated to me that she was not being checked on regularly enough.

I saw R[esident] 19’s food being delivered several times during the survey.  Despite [Petitioner’s] assessment that R[esident] 19 needed assistance for feeding, facility staff left R[esident] 19’s tray in her room.  She received some delayed assistance from facility staff in setting up her food, but then R[esident] 19 was left alone to put small pieces of food into her mouth.  I did not see facility staff sit with R[esident] 19 during meal times to assist her.  Per R[esident] 19’s Resident Summary Template, facility staff was supposed to check for “pocketing” (storing food in her mouth), and cue her to take a bite, swallow, and drink before she took her next bite.

18. On August 30, 2018, a registered nurse at the facility checked Resident 19’s hands and noted that her nails were long and discolored, likely from eating Cheetos. When the nurse asked if Resident 19’s nails could be cut, Resident 19 responded that “I need my nails to eat.” P. Ex. 1 at 15.

Page 10

19. Also on August 30, 2018, facility nursing staff referred Resident 19 for occupational therapy indicating a “need for hand splints.” P. Ex. 1 at 6, 16.

20. On August 31, 2018, an occupational therapist evaluated Resident 19 and indicated a “Treatment Diagnosis” of contractures of both the right and left hands.  P. Ex. 1 at 6.  The occupational therapist recommended placing the call light control on the center line of Resident’s abdomen and using “[f]abricated palmer guards to assist with minimizing contractures on bilateral hands,” noting Resident 19 was agreeable to trying them.  P. Ex. 1 at 6, 17.  The occupational therapist determined that Resident 19 “will require skilled [occupational therapist] to assess for most appropriate new seating . . . , continued adjustments to palmer guards and trial PROM [Passive Range of Motion exercises] of bilateral hands to minimize further contractures, trial alternate [adaptive equipment] in order to increase independence with feeding.”  P. Ex. 1 at 6, 17.  The occupational therapy care plan indicated that, beginning August 31, 2018, an occupational therapist would see Resident 19 twice a week for four weeks with an estimated discharge on September 28, 2018.  P. Ex. 1 at 10.

21. On September 7 and 20, 2018, the occupation therapist saw Resident 19 in part to ensure palmer guards were donned and worn properly.  P. Ex. 1 at 18, 31.

V. Conclusions of Law and Analysis

1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(c)(2) (Tag F688) because it failed to provide appropriate treatment and services to increase Resident 19’s range of motion and/or to prevent further decrease in range of motion.

The Social Security Act requires SNFs to “provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care.”  42 U.S.C. § 1395i-3(b)(2).  In furtherance of this mandate, the Secretary promulgated the general quality of care regulation at 42 C.F.R. § 483.25, which states that quality of care “is a fundamental principle that applies to all treatment and care provided to facility residents” and that a facility “must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices . . . .”  Subsection 483.25(c) imposes specific obligations upon a facility related to residents’ mobility as follows:

(c) Mobility

(1) The facility must ensure that a resident who enters the facility without limited range of motion does not experience reduction in range of

Page 11

motion unless the resident’s clinical condition demonstrates that a reduction in range of motion is unavoidable; and

(2) A resident with limited range of motion receives appropriate treatment and services to increase range of motion and/or to prevent further decrease in range of motion.

(3) A resident with limited mobility receives appropriate services, equipment, and assistance to maintain or improve mobility with the maximum practicable independence unless a reduction in mobility is demonstrably unavoidable.

42 C.F.R. § 483.25(c).5

In its brief, CMS specifies that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(c)(2).  CMS Br at 6.  It is important to note that this requirement is only concerned with whether treatment and services were provided to a resident with a limited range of motion and not whether a resident had an actual decrease in the range of motion.

CMS asserts that there is no dispute that Resident 19 has a limited range of motion in her arms.  CMS Br. at 7.  Further, CMS argues that Petitioner did not provide treatment or services to increase Resident 19’s range of motion and/or prevent further decrease in Resident 19’s range of motion.  CMS Br. at 8-11.  Specifically, relying on Surveyor Gunderson’s testimony, CMS stated that [t]here is no evidence that [Petitioner] was providing any services or treatment to R[esident] 19 for her contractures or limited range of motion.”  CMS Br. at 8.  Surveyor Gunderson testified to this point:

I reviewed R[esident] 19’s records, including care plans.  There was no indication that the facility was monitoring R[esident] 19’s contractures, or providing her treatment or services to address her contractures.  In my professional opinion, the contractures in R[esident] 19’s hands and her limited range of motion in her arms were problems that the facility should have addressed in her care plan.  For a resident with R[esident] 19’s contractures, I would expect that facility

Page 12

staff would be performing range-of-motion or strengthening exercises, or providing some type of splinting to prevent the worsening of her contractures or increase her range of motion.  For example, for a resident with R[esident] 19’s contractures, I would expect that the facility would use a splint or even towel between R[esident] 19’s fingers and palm to prevent any skin break down.  I saw no evidence that facility staff was performing any exercises or that R[esident] 19 had a splint.

CMS Ex. 5 ¶ 9.

The record in this case is consistent with Surveyor Gunderson’s findings and testimony.  Petitioner disputes that Surveyor Gunderson is qualified to assess the situation involving Resident 19 (see P. Br. at 4); however, she is a registered nurse with a nursing degree and more than a decade of nursing experience.  CMS Ex. 5 ¶ 1; CMS Ex. 6.  This is sufficient for her to make observations and review medical records to determine that there is insufficient documentation showing treatment and services for Resident 19’s limited range of motion.  Therefore, CMS met its burden of showing a prima facie deficiency at § 483.25(c)(2).

Petitioner concedes Resident 19 has a limited range of motion.  P. Br. at 9.  Petitioner also concedes that after Resident 19’s initial discharge from occupational therapy in July of 2017, there was never a recommendation to provide a restorative therapy program.  P. Br. at 9-10.  However, Petitioner argues that Resident 19 was referred for and received range of motion services.  P. Br. at 10.

The only range of motion “services” Petitioner argues were provided were staff encouraging Resident 19 to eat finger foods, feed herself with adaptive silverware when she was able to do so, and to assist Resident 19 as necessary.  P. Br. at 10 (citing P. Ex. 4 ¶¶ 4-5, 9; P. Ex. 5 ¶ 3; P. Ex. 6 ¶ 8).  Petitioner refers to the encouragement as active range of motion services, and assisting Resident 19 with feeding as passive range of motion services.  See P. Br. at 10, 12 (citing P. Ex. 4 at ¶¶ 4-5, 9; P. Ex. 5 at ¶ 3; P. Ex. 7; P. Ex. 6 at ¶ 8).  Petitioner argues:  “This preserves R[esident] 19’s functional status.  The nursing staff is trained on providing active and passive range of motion during ADL care, during their orientation.”  P. Br. at 10 (citation omitted).

Although Petitioner makes these arguments, supported by the testimony of therapists from its own facility, its arguments are not supported by documentation that nursing staff deliberately provided such services and recorded their efforts so that the impact of those services could be assessed.  The Care Plan Report neither mentions Resident 19’s contractures nor any range of motion services.  CMS Ex. 4 at 18-19.  This is consistent

Page 13

with the July 2017 discharge from occupational therapy, which does not direct that staff provide such services.  CMS Ex. 4 at 27-30.

Further, the lack of documented interventions comports with Surveyor Gunderson’s interview with a facility supervisory nurse who had been at the facility for a year and half, who “indicated there were no care plan interventions addressing [Resident 19’s] contractures or how to prevent worsening of Resident # 19’s contractures.”6   CMS Ex. 3 at 24.  In response to the supervisor nurse’s statement that there were no interventions in place to treat Resident 19’s range of motion issues, Petitioner’s Rehabilitation Manager asserted that nursing staff might not realize that they are providing range of motion exercises for residents:

Despite the fact that our nursing staff are trained in the provision of both passive and active range of motion during ADL care, it is not surprising that a nursing staff member did not make the connection that ADL or mobility assistance is an indirect intervention for providing many of our resident with range of motion.  Providing assistance with hand washing, nail care, bathing and dressing requires range of motion be provided and residents are assisted to perform when they are not independent.

P. Ex. 4 ¶ 9.  If staff did not know they were providing treatment and services for Resident 19’s contractures, there is no way to tell whether staff actually or correctly provided such services.  Further, staff would not document services they unknowingly provided.

The DAB has rejected an SNF’s claims to providing range of motion treatment services when there was no documentation to support such claims.

Based on its comprehensive assessment of each resident, a facility must ensure that “a resident with a limited range of motion receives appropriate treatment and services to increase range of motion and/or to prevent further decrease in range of motion.”  42 C.F.R. § 483.25(e)(2).  The ALJ found that Meadow Wood failed to provide appropriate range of motion services to Resident 3.

The individual who supervised Meadow Wood's rehabilitation department at the time, Pamela Ninichuck,

Page 14

testified that a physical therapy assessment was done within two days of Resident 3’s admission and that he was “referred to restorative for range of motion three to five times a week to all extremities.”  She further testified that, although the interdisciplinary care team had not met to “write a formal program,” the resident was receiving range of motion services daily during his bath.  The ALJ found that Meadow Wood staff indicated to the surveyors that they did not know that this resident was supposed to receive such services, that he was not on the list provided to them by Meadow Wood of residents who were scheduled to receive such services, and that he was not in fact receiving range of motion services. . . .

Meadow Wood asserted that it “not only substantially complied with the requirements underlying this tag it absolutely complied with them.”  In support, Meadow Wood relied on Ms. Ninichuck’s testimony that she referred Resident 3 for restorative services 3 to 5 times a week and that he actually received it daily (i.e., with a daily bath).  The fact that Ms. Ninichuck asserted that he was assessed and referred for services establishes that Meadow Wood evaluated the resident's needs but does not establish that it actually ensured that those needs were met.  Meadow Wood offered no evidence or documentation that the services for which he was referred were actually provided, and, as noted, the ALJ found the claims about daily range of motion care dubious.

Meadow Wood Nursing Home, DAB 1841 (2002) (emphasis added) (internal citations and footnote omitted).

The present case is similar in that Petitioner attempts to prove that range of motion services were provided to Resident 19 through the testimony of individuals who did not provide those services.  However, Meadow Wood shows that Petitioner cannot prevail with such and argument.

It is also significant that Petitioner’s occupational therapy staff failed to make quarterly and annual assessments of Resident 19 because the occupational therapist indicated in the discharge from therapy in July 2017 that such assessments would be conducted.  CMS Ex. 4 at 30.  Petitioner’s primary occupational therapist concedes that Petitioner had not been evaluated by an occupational therapist for more than one year prior to the survey.  P. Ex. 5 ¶ 5.  However, she argues that nothing about Resident 19’s condition required an occupational therapy screen.  P. Ex. 5 ¶ 5.  Even more troubling is the testimony that the

Page 15

only reason Resident 19 underwent an occupational therapy evaluation on August 31, 2018, was due to the surveyor’s request, not due to any noted changes in Resident 19’s condition.  P. Ex. 5 ¶ 7.  This failure to follow-up as indicated in the discharge shows that Resident 19 was essentially left without treatment or services for her range of motion and contracture issues.7

Finally, after Resident 19 received an occupational therapy evaluation on August 31, 2018, the occupational therapist recommended a variety of interventions, including using “[f]abricated palmer guards to assist with minimizing contractures on bilateral hands,” new seating, passive range of motion i.e., PROM, bilaterally to minimize further contractures, and alternate adaptive equipment for eating.  Further, beginning August 31, 2018, an occupational therapist would see Resident 19 twice a week for four weeks.  P. Ex. 1 at 6, 17.  The occupational therapist moved forward with all of these different efforts to assist Resident 19 with her limited range of motion.  This evaluation supports Petitioner’s failure to act during the preceding year to provide sufficient treatment and services.  Petitioner’s witnesses attempt to undermine this fact by asserting that the palmer guards/splints and the August 31, 2018 assessment were only done because the surveyors wanted them.  P. Ex. 5 ¶ 7.  However, I will not accept that an occupational therapist would provide/direct care to be provided that was inappropriate simply because a non-therapist nurse surveyor thought it was necessary.

Petitioner was required to ensure that Resident 19’s limited range of motion and mobility did not further decline by providing treatment and services to increase her range of motion, maintain or improve her mobility, and/or to prevent a further decrease in her range of motion.  42 C.F.R. § 483.25(c).  Each resident must receive, from the facility, “the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, consistent with the resident’s comprehensive

Page 16

assessment and plan of care.”  81 Fed. Reg. 68,745 (Oct. 4, 2016) (discussing the objective of revising 42 C.F.R. § 483.25 to ensure long term care residents receive appropriate quality of life).  In this case, the record supports Petitioner’s failure to comply with § 483.25(c).

2. A per-instance CMP of $20,500 is a reasonable CMP amount for Petitioner’s substantial noncompliance with 42 C.F.R. § 483.25(d)

CMS imposed a single per‑instance CMP in the amount of $20,500 on Petitioner.  When determining whether a CMP amount 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) 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.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i-3(h)(2)(B)(ii)(I).  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f).  The factors listed 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.  See 42 U.S.C. §§ 1320a-7a(d)(1), (3), 1395i-3(h)(2)(B)(ii)(I).

The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, 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 (2008).  However, unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002).

I consider the factors below.  In some cases, I combine similar factors.

Facility’s History of Non-Compliance:  CMS does not argue that Petitioner has a history of noncompliance with 42 C.F.R. Part 483.  See CMS Br. at 11-12.  Petitioner also does not appear to assert that it has not been cited in annual or standard surveys for repeated deficiencies under Tag F688.  See P. Br. at 11-12.  Therefore, this is not a factor requiring consideration.

Scope and Severity of Deficiencies and Relationship Between Deficiencies:  There was only one deficiency in this case, at scope and severity level G.  This means a resident incurred actual harm due to the substantial noncompliance.

Petitioner disputes that Resident 19 was harmed.  Petitioner argues that “the objective evidence shows that [Resident 19] has no measurable changes in her range of motion and

Page 17

no functional changes, despite R[esident] 19’s complaints.”  P. Br. at 11.  The objective evidence to which Petitioner refers is the August 31, 2018 occupational therapy evaluation of Resident 19.  P. Br. at 7.

I give limited weight to the results of the August 31, 2018 occupational therapy evaluation.  It was done in response to the survey that led to the enforcement remedies in this case.  P. Ex. 5 ¶ 5.  Further, the occupational therapist who conducted the assessment was the same therapist who stated in the July 6, 2017 discharge plan that she would follow with quarterly and annual assessments of Resident 19.  This therapist, in written testimony, admits that she did not conduct those assessments.  Therefore, she has an interest in concluding that Resident 19’s range of motion had not declined.

In addition, the record supports actual harm.  Resident 19 sustained such a decline in her range of motion, especially regarding her hand contractures, so that she struggled to grasp pieces of food to feed herself and could only reach items placed directly in front of her, including her call light.  Resident 19’s statement to a nurse that she did not want her nails cut because she needed the nails to eat shows how desperate the situation was.  P. Ex. 1 at 15.  Although Petitioner’s Rehabilitation Manager testified that a record review does not provide objective evidence that Resident 19’s condition declined, and that the evaluation performed on August 31, 2018 showed no decline (P. Ex. 4 at ¶¶ 11-12), this is factually incorrect.  Compare CMS Ex. 4 at 27-28 (assessing on discharge from occupational therapy in July 2017 that Resident 16 could use adaptive utensils and was able to self-feed part of her meals) with P. Ex. 1 at 6 (by August 31, 2018, Resident 19 was completely unable to self-feed with utensils with either hand, and had increased difficulty swallowing, spitting foods out, and pocketing foods).  Further, the August 31, 2018 occupational therapist evaluation resulted in several interventions, including multiple future occupational therapy sessions.

Culpability:  Neither party addresses the issue of culpability in discussing the reasonableness of the CMP.  However, I note for completeness that the facts establish that Petitioner was culpable in this case.  Petitioner only provided Resident 19 with limited occupational therapy in May through July 2017 related to eating.  After that, Petitioner did not provide any additional range of motion treatment or services until the survey revealed Petitioner’s neglect of Resident 19’s range of motion issues.  Petitioner has profound health problems.  Such an individual is entitled to treatment and services regarding her range of motion limitations.

Financial Condition of the Facility:  CMS argues that Petitioner has not submitted any documentation concerning its financial condition to CMS.  CMS Br. at 11-12.  It does not appear that Petitioner is asserting that it has a financial condition preventing it from paying the CMP imposed by CMS.  See P. Br.  Therefore, this is not a factor requiring consideration.

Page 18

CMP Amount:  A per-instance CMP of $20,500 is within the penalty range and is reasonable based on the factors considered above.

VI. Conclusion

For the reasons set forth above, I sustain CMS’s initial determination that Petitioner was in substantial noncompliance with 42 C.F.R. § 483.25(c)(2) and that a $20,500 per-instance CMP is reasonable.

1. All citations to the Code of Federal Regulations are to the version in effect at the time of the survey unless otherwise indicated.
• back to note 1
2. CMS or the state agency designates the scope and severity level using a letter from A through L based on a scope and severity matrix published in the State Operations Manual, Ch. 7, § 7400.3.1 (Rev. 185, Eff. Nov. 16, 2018). Levels A, B, or C indicate a deficiency that presents no actual harm but has the potential for minimal harm, which means the facility technically remains in substantial compliance. 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. Levels G, H, or I indicate a deficiency that involves actual harm that does not amount to immediate jeopardy. Finally, levels J, K, and L indicate a deficiency that constitutes immediate jeopardy to resident health or safety.
• back to note 2
3. Petitioner submitted documents that appear to show an assessment related to eating in August 2017, November 2017, February 2018, May 2018, and August 2018. P. Ex. 1 at 34. These documents use code numbers and provide no narrative information. Petitioner did not provide testimony to explain these documents.
• back to note 3
4. Petitioner provided the first page of a Care Plan Report that was printed in May 2019 and purports to be effective from June 27, 2014 through December 13, 2018. P. Ex. 1 at 32. It appears to include more or additional information than the first page of the Care Plan Report in CMS Ex. 4. I give more weight to the Care Plan Report in CMS Ex. 4 because it more accurately reflects the Care Plan Report as it appeared during the survey.
• back to note 4
5. The regulations containing SNF participation requirements substantially changed beginning on November 28, 2016. 81 Fed. Reg. 68,688 (Oct. 4, 2016). Prior to that time, the text now located at 42 C.F.R. § 483.25(c) was in 42 C.F.R. § 483.25(e) (Range of Motion). Because this re-designation and revision did not affect that substance of the provision, it is appropriate to cite prior DAB decisions discussing § 483.25(e) when evaluating non-compliance under the current § 483.25(c).
• back to note 5
6. Surveyor Gunderson testified that her observations and summaries of interviews recorded in the Statement of Deficiencies are a true and accurate. CMS Ex. 5 ¶ 4.
• back to note 6
7. Petitioner’s Rehabilitation Manager testified that the occupational therapist who provided therapy for Resident 19 could not have provided an accurate assessment of the status of Resident 19’s contractures to the nurse surveyor during the August 2018 survey without performing an evaluation including testing and measuring. P. Ex. 4 ¶ 10. However, the Rehabilitation Manager also testified that I should defer to the opinion of Petitioner’s therapists about Resident 19 because “[m]y team has cared for Resident #19 for years at this point and we are in a better position to assess Resident #19 over time and to understand her fluctuating behaviors and abilities. Our documents reflect this.” P. Ex. 10 ¶ 8. The documentation supports that Petitioner’s occupational therapist provided therapy for a couple of months in 2017 and had limited or no involvement until the surveyors expressed concern at the lack of treatment or services provided to Resident 19. In any event, the Rehabilitation Manager’s testimony is not consistent. The therapists cannot both be ignorant of Resident 19’s condition and able to provide the best assessment of Resident 19 based on its long-term involvement with that resident.
• back to note 7