Heritage Manor - Carlinville, LLC d/b/a Heritage Health-Carlinville, DAB CR5159 (2018)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Heritage Manor – Carlinville, LLC d/b/a Heritage Health-Carlinville, a skilled nursing facility. I sustain civil money penalties against Petitioner consisting of: penalties of $9254 for each day of a period that began on May 15, 2017, and concluded on May 16, 2017; and $150 for each day of a period that began on May 17, 2017, and concluded on July 12, 2017.1 As a consequence of my decision Petitioner also loses the authority to conduct a nurse aide training and competency evaluation program (NATCEP) for a period of two years.

I. Background

As part of its pre-hearing exchange CMS filed 40 exhibits that it identified as CMS Exs. 1-40. Petitioner, in its exchange, filed 94 exhibits that it identified as P. Exs. 1-94.

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The parties filed objections to my receiving some of these exhibits and I overruled the objections. I scheduled this case for an in-person hearing. CMS then moved for summary judgment and Petitioner opposed the motion.

Now, and in response to CMS's motion for summary judgment, Petitioner has filed an additional 17 exhibits that it identified as P. Exs. 95-111, and it requests that I accept the contents of these exhibits as demonstrating disputed issues of material fact sufficient to deny CMS's motion. Petitioner filed these exhibits untimely and in contravention of the initial pre-hearing order that I issued in this case that established deadlines for the parties to file pre-hearing exchanges including any and all proposed exhibits. Petitioner made no showing whatsoever of good cause for me to accept these exhibits. It has not demonstrated, for example, that it was surprised by facts alleged by CMS in its motion for summary judgment. Were Petitioner to offer these exhibits into evidence I would exclude them because Petitioner filed them untimely and because it failed to establish good cause for its untimeliness. For that reason I do not consider P. Exs. 95-111 in ruling on CMS's motion for summary judgment.

Although I do not formally receive CMS Exs. 1-40 or P. Exs. 1-94 into evidence, I cite some of these exhibits in this decision in order to illustrate undisputed material facts or the absence of a genuine dispute as to the material facts.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether undisputed material facts establish that: Petitioner failed to comply substantially with Medicare participation requirements; CMS's determination of immediate jeopardy level noncompliance is clearly erroneous; and CMS's penalty determination is reasonable.

B. Findings of Fact and Conclusions of Law

In deciding this case I am mindful that I do not make credibility findings in deciding whether summary judgment is appropriate. Rather, I look at the facts as alleged by the parties and decide, first, whether there is no dispute as to material facts, and, second, whether the undisputed facts are grounds for awarding summary judgment. In establishing the facts I do not accept a party's naked or unsupported allegations. An asserted material fact must be supported by evidence, which if admitted at a hearing, would establish that fact's existence. Finally, to the extent that I draw inferences from the facts I make those inferences in a light most favorable to the party opposing the motion. I grant summary judgment only if there is no reasonable inference that I may draw from the undisputed facts that supports opposition to the motion.

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Applying those criteria to this case I find that undisputed material facts establish that Petitioner failed to comply with a Medicare participation requirement stated at 42 C.F.R. § 483.25(d), that CMS's determination of immediate jeopardy level noncompliance is not clearly erroneous, and that penalties of $9254 for each day of a two-day period of noncompliance are reasonable.

The regulation in question governs prevention of accidents at a skilled nursing facility. It requires a facility to take all reasonable measures to protect its residents against foreseeable accidents. That requirement clearly includes a duty by a skilled nursing facility to anticipate and eliminate conditions at its premises that pose hazards to residents.

CMS's case against Petitioner is as follows. On May 15, 2017, surveyors employed by a State survey agency observed one of Petitioner's resident dining rooms during a period of about 90 minutes. During this period no meals were being served and the dining room was unattended. On several occasions during this period, the surveyors observed that the doors to the dining room were open, rendering it accessible to Petitioner's residents, including some residents who were mobile but cognitively impaired. CMS Ex. 14; CMS Ex. 15; CMS Ex. 19 at 6; CMS Ex. 21 at 6; CMS Ex. 22 at 6; CMS Ex. 25 at 6; CMS Ex. 29 at 11; CMS Ex. 30; CMS Ex. 31. There was a device that the surveyors described as a steam table – used for keeping food hot – in the dining room.2 The surveyors observed that the steam table was on and that the surface temperature of areas of the steam table ranged from at least 160 degrees Fahrenheit to as high as 207.1 degrees Fahrenheit. CMS Ex. 30; CMS Ex. 31 at 2. Temperatures in that range are sufficiently hot to cause severe burns to an individual coming into contact with the steam table. CMS Ex. 34 at 12; CMS Ex. 36 at 17; CMS Ex. 37 at 2-3; CMS Ex. 38 at 5; CMS Ex. 39 at 3-4. The unattended dining room and steam table contravened Petitioner's policy, which required Petitioner's staff to turn the steam table off and unplug it after they had completed food service. P. Ex. 48.

These material facts, if undisputed, plainly establish not only that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(d), but that a finding of immediate jeopardy level noncompliance is not clearly erroneous. The unattended dining room, with its doors open and an operating steam table, posed an evident hazard to any resident that might enter the room and come into contact with the steam table. Residents with access to the dining room included residents who, albeit mobile, were frail and

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infirm. Some of these residents suffered from cognitive deficiencies that impaired their ability to make judgments. Under the circumstances it was likely that sooner or later a resident would sustain a severe burn or burns.

In its opposition to CMS's motion Petitioner contends that: "Numerous ... Staff have testified that they were near the ... [dining room] and observed the doors remain[ed] closed on May 15, 2017 ... ." Petitioner's brief in opposition to CMS's motion (P. Opp. Br.) at 9. As support for this contention Petitioner cites P. Exs. 102-111.3 As I have explained, Petitioner filed these exhibits untimely and without demonstrating good cause for its failure to file them timely. I do not accept these exhibits nor do I address any assertions of fact that they contain.

Petitioner asserts, as a matter of general policy, it would not have allowed conditions to exist as the surveyors found them on the date in question. For example, Petitioner offers a witness's statement that its dining room doors were always closed. P. Ex. 16 at ¶ 30. It asks that I conclude that this establishes a dispute as to whether those doors were open on May 15, 2017. This assertion, and others like it about the general conditions at Petitioner's facility, do not raise a genuine dispute as to the material facts. CMS makes very specific allegations about what prevailed at Petitioner's facility during a 90-minute period on the morning of May 15. Those allegations are based on eyewitness observations. In order that I may find a dispute as to the material facts Petitioner must offer evidence from which I could infer that those specific allegations and the observations on which they are based are wrong. Stating the general conditions at Petitioner's facility is insufficient in light of the specific observations that the surveyors made. Saying, for example, that as a general rule the doors to Petitioner's dining room were always kept closed does not directly rebut allegations that those doors were open on May 15, 2017, nor can I reasonably infer from that assertion that the surveyors' observations on May 15 were incorrect.

The gravamen of Petitioner's defense to CMS's motion is that the surveyors fabricated their observations in order to falsely assert that the dining room doors were open on May 15, 2017, and that the steam table was operating. Petitioner characterizes the surveyors' observations and findings as "false, misleading, and unethical." P. Opp. Br. at 9. Petitioner implies that all of the survey findings are fictitious and that the allegations are made from whole cloth.

But, Petitioner has adduced no facts from which anyone could reasonably infer these breathtaking allegations of surveyor mendacity. At most, it has identified a few possible trivial discrepancies in the surveyors' findings or notes. But, these possible trivial discrepancies fail to provide support for a conclusion that the surveyors made up their

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findings. Moreover, and as I shall discuss, many of the "discrepancies" alleged by Petitioner are not discrepancies at all but are, in fact, entirely consistent with the surveyors' findings.

Petitioner asserts, for example, that the notes made by a surveyor, Mary Bierbaum, record observations that surveyors could not possibly have made. P. Opp. Br. at 10. According to Petitioner, surveyors were otherwise occupied at the times that Ms. Bierbaum recorded them as observing Petitioner's dining room. Id.; see CMS Ex. 29 at 11; CMS Ex. 31 at 4-5. However, the surveyor notes that Petitioner contends conflict with Ms. Bierbaum's summary show only that at 9:10 a.m. on the morning of May 15, 2017, surveyors made a tour of some of Petitioner's resident rooms. CMS Ex. 31 at 4-5. The notes do not record how long that tour lasted. I find nothing in those notes that permits an inference that the surveyors were still touring Petitioner's resident rooms at the time when they first observed the dining room (9:40 a.m.) or at times thereafter (10:20 and 10:38 a.m.). CMS Ex. 29 at 11.

Petitioner avers more directly that surveyors' "own notes" confirm that they were in residents' rooms during the times when they asserted that they observed Petitioner's dining room. P. Opp. Br. at 11. That is incorrect. There is nothing in those notes that is inconsistent with the surveyors' observations. See CMS Ex. 31 at 4-5.

Petitioner contends that one of its staff, Candy Garst, was with a surveyor for about an hour beginning at 9:15 a.m. on May 15, 2017, when the surveyor interviewed residents. P. Opp. Br. at 10-11. Petitioner asserts that it would have been impossible for the surveyor to observe the dining room inasmuch as the surveyor was otherwise occupied at the times when observations ostensibly occurred. As support for this assertion, Petitioner cites two exhibits, P. Ex. 76 and P. Ex. 103. I have excluded P. Ex. 103 for reasons that I have explained. P. Ex. 76 consists of surveyor notes showing that a surveyor began a tour of some resident rooms at about 9:00 a.m. on May 15. There is nothing in those notes that suggests that this tour was so protracted that it rendered it impossible for the surveyor to have observed Petitioner's dining room.

Likewise, Petitioner contends that the same surveyor could not have put Thermolabels (temperature reading devices) on the steam table at 9:40 a.m. on May 15, 2017, because the surveyor was otherwise occupied touring Petitioner's facility at that time. P. Opp. Br. at 11. For this assertion Petitioner again relies on surveyor notes, claiming that the notes show that the surveyor was otherwise occupied at 9:40. As I have explained these notes provide no support for that assertion. See P. Ex. 76.

Petitioner argues that the notes made by a surveyor, Rick Gross, show him as being at more than one location simultaneously, rendering it impossible for him to have observed Petitioner's dining room at 9:40 a.m. P. Opp. Br. at 12. There is a surveyor's note placing Mr. Gross in a resident's room at that time. P. Ex. 41 at 4. However, that room

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was only nine rooms away from the dining room. I find it to be reasonable that Mr. Gross could have been slightly off in the timing of his observations and yet have observed Petitioner's dining room in the vicinity of 9:40 a.m. I find it unreasonable to infer from this one discrepancy that Mr. Gross did not observe the dining room at all, as Petitioner urges me to find. Moreover, Mr. Gross's observations of the dining room are corroborated by those made by other surveyors and, as I have discussed, I find no discrepancies in their observations.

Petitioner asserts that there are material facts that create a dispute whether Petitioner's steam table was hot enough on May 15, 2017, to cause injuries to residents who might come into contact with it. Much of Petitioner's argument is a rehash of its assertion that surveyors could not possibly have observed Petitioner's dining room – or the steam table – because they were otherwise occupied during the times when they aver that they made their observations. I will not revisit that argument except to say that I find no material facts that call into question whether the surveyors were present in the dining room and made their observations.

Petitioner also devotes considerable argument to whether the steam table was emitting steam on May 15, 2017. P. Opp. Br. at 16. Although surveyors did make findings that the steam table was emitting steam (or, perhaps, water vapor) I find it to be irrelevant whether the steam table was emitting steam or not. CMS does not contend that the presence of vapor in the vicinity of the steam table posed jeopardy for Petitioner's residents. What CMS contends is that the steam table was so hot as to endanger a resident who came into contact with that table. That assertion is relevant whether or not the table was emitting water vapor.

The undisputed facts support a finding that the unattended steam table was so hot on the morning of May 15, 2017, as to endanger residents. First, I find no dispute that the surveyors accurately recorded temperatures that were dangerous. Thermolabels applied by the surveyors at several times on that morning to parts of the table recorded temperatures of at least 160 degrees Fahrenheit. CMS Ex. 30; CMS Ex. 31 at 2. The surveyors recorded the temperature of the water in the water wells of the steam table as 207.1 degrees Fahrenheit and 196.5 degrees Fahrenheit. CMS Ex. 30. At those temperatures, a person coming into contact with the steam table could sustain a third-degree burn within seconds. CMS Ex. 34 at 12; CMS Ex. 36 at 17; CMS Ex. 37 at 2-3; CMS Ex. 38 at 5; CMS Ex. 39 at 3-4.

Petitioner contends that CMS "offers no competent scientific evidence of the temperatures of the buffet server." P. Opp. Br. at 17. It contends, affirmatively, that "the numerical figures [meaning, presumably, the temperatures recorded by the surveyors] were not the actual temperatures of the Buffet Server pan lids or the water in the wells." Id. at 18. I find these assertions to be unsupported.

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Petitioner asserts no facts to show that the temperatures were actually lower than those recorded by the surveyors. Petitioner does not aver that its staff made temperature readings of the steam table on the morning of May 15, 2017. It has not offered temperature readings taken at any time. Thus, there are no facts that directly contradict the surveyors' findings.

Petitioner attempts to accomplish indirectly what it cannot accomplish directly. To that end, Petitioner suggests that the temperature readings taken by the surveyors were inaccurate. However, I find no facts in dispute that challenge the accuracy of the surveyors' temperature readings.

As CMS points out, Thermolabels are waterproof temperature indicate strips used to record the temperature of a wide variety of surfaces. CMS Ex. 40. Petitioner acknowledges the routine use of Thermolabels by CMS surveyors, but offers nothing to suggest that the surveyors' application of Thermolabels to the steam table produced inaccurate results. P. Opp. Br. at 18.

Petitioner asserts that CMS inadequately documented the surveyors' placement of Thermolabels, thereby undercutting the veracity of the results obtained by the surveyors. P. Opp. Br. at 18. That assertion does not create a disputed issue of material fact. The undisputed facts establish that the surveyors placed Thermolabels on the lids of the containers on the steam table. CMS Ex. 30; CMS Ex. 31 at 2. There is no dispute that these surfaces were accessible to anyone approaching the steam table.

Petitioner offered no facts to challenge the water temperature readings made by the surveyors. I find that there is no dispute that the temperature in the steam table's water wells was as high as 207.1 degrees Fahrenheit.

I find that Petitioner failed to offer facts to challenge CMS's assertion that temperatures that were as high as those recorded by the surveyors can cause serious burns within seconds of contact. Petitioner does not address this issue directly in its opposition to CMS's motion for summary judgment. In its pre-hearing brief Petitioner argues that an individual coming into contact with surfaces as hot as those present on Petitioner's steam table would recoil reflexively before sustaining a burn. I find it unnecessary to resolve the question of whether an individual's reflexes might protect him or her against being burned. The undisputed facts are that residents of Petitioner's facility included elderly, frail individuals with impaired ambulation and with cognitive impairments. Petitioner's staff assessed several residents as having moderate to severe cognitive impairment. CMS Ex. 14; CMS Ex. 15; CMS Ex. 19 at 2; CMS Ex. 21 at 2; CMS Ex. 22 at 2; CMS Ex. 24 at 2; CMS Ex. 25 at 2; CMS Ex. 26 at 1-2.

The undisputed material facts establish that the unattended steam table, as hot as it was, posed a significant accident hazard to these frail and impaired residents. These residents

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are not persons who could rely on their reflexes to protect themselves against being burned. Individuals risked falling onto the steam table, stumbling into it, or touching it without being cognizant of the risks involved in doing so.

Petitioner contends that there were no residents who were sufficiently mobile as to be at risk for coming into contact with the unattended steam table. P. Opp. Br. at 20. According to Petitioner: "Each and every one of those residents require staff assistance and/or an assistive device (wheelchair and/or walker) that they need to move about ... [Petitioner's] Facility." P. Opp. Br. at 20. Petitioner offers no facts to support this claim that these residents, who it identifies as R4, R6, R7, R11, R18, R19, R20, R22, R23, and R24, lacked the mobility to travel into Petitioner's dining room unsupervised and come into contact with the steam table. I accept as true the assertion that some of these residents – not all, but some – relied on walkers or wheelchairs for mobility. However, Petitioner offered no facts to show that even wheelchair-bound residents were unable to move on their own into the dining room.

Moreover, and contrary to Petitioner's assertion that each of these residents required extensive assistance, several of Petitioner's staff assessed several residents as being able to ambulate without physical assistance. These included R7, R18, and R23. CMS Ex. 19 at 6; CMS Ex. 21 at 6; CMS Ex. 25 at 6. The staff assessed R19 as requiring supervision while ambulating, but did not find that the resident suffered from physical limitations that prevented ambulation. CMS Ex. 22 at 6. The only reasonable inference that I can draw from Petitioner's assessment of R19 is that he was capable of ambulating unsupervised but that he was at risk for injury or accident if he attempted to do so. In other words, R19 is precisely the sort of individual who would have been most jeopardized by Petitioner's unattended steam table.

Petitioner argues also that it had a safety program and policies that protected its residents. P. Opp. Br. at 21-23. I do not disagree with Petitioner's assertion that it had a program and policies. However, despite Petitioner's assertion that this program and policies protected its residents, the fact is that on May 15, 2017, residents were exposed to a serious accident hazard. The fact that there was an unattended steam table in a resident-accessible dining room is dispositive proof that Petitioner failed to implement its program and policies on May 15.

There are no facts from which I can reasonably find to be clearly erroneous relating to CMS's determination that the open dining room and unattended steam table placed Petitioner's residents at immediate jeopardy. The undisputed facts establish the presence of an obvious accident hazard on May 15, 2017. The combination of impaired residents, some who suffered from cognitive impairments, and access to a device that could cause severe burns on contact plainly created a likelihood of serious injury, harm, or death to

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residents. Petitioner has not presented facts that call into question this determination except to argue that the surveyors' findings of an accessible and operating steam table are wrong. I have addressed Petitioner's arguments, above.

Petitioner offered no facts to challenge the reasonableness of the immediate jeopardy level civil money penalties of $9254 for two days of noncompliance that CMS determined to impose, except to argue that it complied with participation requirements and that no penalties should apply. I have addressed the issue of noncompliance. As to the penalty amount and duration, I find them to be supported amply by the undisputed material facts.

The daily penalty amount of $9254 falls well within the range of permissible penalties for immediate jeopardy level noncompliance. It is justified by the seriousness of Petitioner's noncompliance but also by the fact that Petitioner has a history of noncompliance that includes three previous findings that Petitioner failed to protect its residents against accident hazards in contravention of 42 C.F.R. § 483.25(d). CMS Ex. 6; 42 C.F.R. § 488.438(f)(1), (3) (incorporating 42 C.F.R. § 488.404 by reference).4

• 1. Petitioner does not contest the $150 per day penalties.
• 2. Petitioner characterizes the device as a "buffet server" but the nomenclature is irrelevant. The parties do not dispute that the device's purpose was to keep food hot. That said, I note that Petitioner's own documents refer to the device as a "steam table." P. Ex. 48.
• 3. P. Exs. 102-111 are a subset of P. Exs. 95-111, all of which I exclude because Petitioner filed them untimely and without establishing good cause for doing so.
• 4. Petitioner's loss of NATCEP is by operation of law. A facility loses NATCEP where it is subject to an extended survey and penalties of $10,483 or more are imposed against it. 42 C.F.R. § 483.151(b)(2). Both elements are present in this case.