Bridgeway Care and Rehabilitation Center at Hillsborough, DAB CR5205 (2018)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a per-instance civil money penalty of $20,965 against Petitioner, Bridgeway Care and Rehabilitation Center at Hillsborough.

I. Background

Petitioner is a skilled nursing facility in New Jersey and it participates in the Medicare program subject to regulations at 42 C.F.R. Parts 483 and 488. It filed a hearing request in order to challenge CMS's determination to impose a civil money penalty against it based on a finding that Petitioner failed to comply substantially with a Medicare participation requirement.

CMS moved for summary judgment and Petitioner opposed the motion. With its motion CMS filed proposed exhibits that it identified as CMS Ex. 1-CMS Ex. 17. In opposing the motion, Petitioner filed proposed exhibits that it identified as P. Ex. 1-P. Ex. 19.

After CMS moved for summary judgment and Petitioner opposed the motion, Petitioner filed a pre-hearing brief in this case. Petitioner filed no additional proposed exhibits. In its pre-hearing brief, Petitioner made an argument that it did not make in opposition to

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CMS's summary judgment motion. Although that argument is not technically a response to the motion I address it in this decision.

I do not admit the parties' exhibits into evidence inasmuch as I issue summary judgment based on undisputed material facts. However, I cite to some of these exhibits but only to illustrate facts that are undisputed.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether Petitioner failed to comply substantially with a Medicare participation requirement and whether CMS's remedy determination is reasonable.

B. Findings of Fact and Conclusions of Law

In deciding whether to grant CMS's motion, I have evaluated the parties' fact contentions and arguments pursuant to the criteria for issuing summary judgment in Rule 56 of the Federal Rules of Civil Procedure. I base my decision only on material facts that I find to be undisputed. Where more than one competing inference may be drawn from the facts, I draw the inference that is most favorable to Petitioner.

CMS alleges that Petitioner failed to comply substantially with a Medicare regulation establishing the minimum competency and training requirements for nurse aides employed by a skilled nursing facility. The term "nurse aide" is defined at 42 C.F.R. § 483.5 to be "any individual providing nursing or nursing-related services in a facility." Nurse aides are critical to skilled nursing facilities' providing care for residents. I take notice that in most skilled nursing facilities nurse aides have more – and sometimes, much more – direct contact with residents on a day-to-day basis than do other staff, including nurses. I take notice also that most skilled nursing facilities employ more nurse aides than they employ nurses.

On a day-to-day basis, nurse aides provide many of the services that a nursing facility offers to its residents. Nurse aides feed, clothe, and assist residents needing such care. They assist in bathing residents and in taking them to the bathroom. They often provide physical support for residents, assisting them into and out of bed and wheelchairs and they help them to walk.

Nurse aides provide care to individuals who are utterly dependent on facility staff for assistance in performing most of their activities of daily living. Often, residents cared for by nurse aides are incapacitated or nearly so by their illnesses. Many of these residents are demented or suffer from other conditions that make them difficult to deal with.

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In order to perform successfully as a nurse aide one must be highly sensitive to the needs and demands of residents in his or her charge. A nurse aide, while lacking the clinical training of a nurse, must nevertheless be able to identify signs of changes in residents' conditions and must be prepared to alert a facility's nurse the moment it becomes apparent that a resident is acting unusually.

There clearly is a high potential for risk of harm to residents if a nurse aide not fully trained in the duties of his or her job is allowed or directed to provide resident care unsupervised. An improperly trained nurse aide may, for example, fail to provide dependent residents with appropriate physical support or, as another example, fail to recognize and report to a facility's nursing staff an apparent significant change in a resident's condition.

The regulations that are pertinent to this case are 42 C.F.R. § 483.35(d)(1) and (d)(3). In relevant part, 42 C.F.R. § 483.35(d)(1) states the following general rule:

A facility must not use any individual working in the facility as a nurse aide for more than 4 months, on a full-time basis, unless –

(i) That individual is competent to provide nursing and nursing related services; and

(ii)

(A) That individual has completed a training and competency evaluation program, or a competency evaluation program approved by the State . . . .

(Emphasis added).

Additionally, 42 C.F.R. § 438.35(d)(3) provides that:

A facility must not use any individual who has worked less than 4 months as a nurse aide in that facility unless the individual –

(i) Is a full-time employee in a State-approved training and competency evaluation program;

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(ii) Has demonstrated competence through satisfactory participation in a State-approved nurse aide training and competency evaluation program or competency evaluation program . . . .

The regulations plainly state that if a skilled nursing facility employs a nurse aide for more than four months, that individual must be certified as a nurse aide after completing an approved training and certification program. A skilled nursing facility may employ a nurse aide that is not certified for a period of less than four months, but in that event, that employee must be enrolled in and working towards completion of an approved training and certification program.

CMS alleges that Petitioner had on its staff nurse aides who were employed for more than four months and who had not completed an approved training and certification program. It alleges additionally that Petitioner had on its staff nurse aides for periods of less than four months who were not enrolled in and working towards completion of an approved training and certification program. CMS asserts that these nurse aides provided active resident care without direct supervision. CMS contends that Petitioner's failure to require its nurse aides either to be certified or to be enrolled in education courses leading to certification, coupled with its staff's failure to provide direct supervision to these aides, posed a grave risk to residents of the facility.

The undisputed facts substantiate CMS's assertions.

CMS offered facts relating to 11 nurse aides. It is undisputed that six of these nurse aides, identified as NA #1, NA #2, NA #5, NA #7, NA #8, and NA #10, provided direct care for Petitioner's residents during the first four months or less of their employment, while not certified and while not actively working toward completion of an approved training and certification program. Two of these nurse aides, NA #1 and NA #2, left Petitioner's employment after having worked for more than four months without becoming certified.

I find that Petitioner contravened regulatory requirements in employing these six nurse aides. These aides were not certified as nurse aides during their employment. They were not actively working towards becoming certified. And, yet, they provided care directly to residents during their employment.

Petitioner hired NA #1 on November 21, 2016 and her employment ended on April 5, 2017, more than four months after Petitioner hired her. CMS Ex. 3 at 1-2. Between January 1, 2017 and April 5, 2017 NA #1 provided direct resident care during 79 eight-hour shifts. CMS Ex. 3 at 28-96. She was not certified as a nurse aide prior to her

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employment by Petitioner. The undisputed facts establish that she had completed the course requirements for certification prior to being employed by Petitioner, but that she had not passed the written examination that is a prerequisite for certification. She did not take the examination during the course of her employment by Petitioner nor did she re-enroll in a certification course during her employment.

NA #2 commenced her employment with Petitioner on November 21, 2016 and her employment terminated on March 30, 2017, more than four months after Petitioner hired her. Between January 1, 2017 and March 30, 2017, NA #2 provided care to residents during 50 eight-hour shifts. CMS Ex. 4 at 19-69. Prior to being hired by Petitioner, NA #2 enrolled in a state accredited nurse aide certification program. She completed her classroom instruction but did not take the examinations that are prerequisite to certification. She did not take these examinations during her employment by Petitioner nor did she re-enroll in a certification course during her employment.

NA #5 started her employment with Petitioner on November 19, 2016 and ended her employment on April 17, 2017, more than four months after she was hired. She provided care to residents during 42 eight-hour shifts from January 1, 2017 until April 17, 2017. CMS Ex. 7 at 18-19, 30-32, 36. She enrolled in a nurse aide certification program on August 1, 2016 and completed the course work on September 1, 2016. However, she did not take the prerequisite certification examinations either prior to or during her employment by Petitioner, nor did she re-enroll in a certification course during her employment.

Petitioner employed NA #7 beginning on February 6, 2017. Her employment ended on June 3, 2017. She worked a total of 40 eight-hour shifts between February 21, 2017 and May 31, 2017, providing care to residents. CMS Ex. 9 at 1, 6-51. NA #7 began a nurse aide certification course on October 4, 2016 and completed her classroom instruction on November 17, 2016, prior to her employment by Petitioner. However, she did not take the examinations necessary for certification nor did she re-enroll in a certification course while Petitioner employed her.

NA #8 began working for Petitioner on October 9, 2017. Her employment ended on November 17, 2017. She worked 11 eight-hour shifts between November 4 and November 17, 2017 during which she provided care to residents. CMS Ex. 10 at 1-13. She did not attain certification as a nurse aide either prior to or during her employment. Nothing suggests that she took a certification course while employed by Petitioner.

Petitioner hired NA #10 on October 9, 2017. Her employment with Petitioner ended on November 14, 2017. During her employment this nurse aide provided care to residents during 10 eight-hour shifts. CMS Ex. 12 at 12-13. She did not become certified as a nurse aide before or during her employment by Petitioner. There are no facts to suggest that she took a certification course while employed by Petitioner.

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As to the five additional nurse aides – NAs #s 3, 4, 6, 9, and 11 – I do not find that the undisputed facts establish that these aides were neither certified nor actively working towards certification while employed by Petitioner. NA # 3, for example, became certified as a nurse aide during her employment. That was also true in the cases of NAs #s 4, 6, and 9. As concerns NA #11, the facts are ambiguous. This nurse aide ended her employment with Petitioner on November 8, 2017. She completed her classroom instruction for certification on November 3, suggesting that she was actively working towards certification during the period that Petitioner employed her.

I find Petitioner's arguments in opposition to CMS's motion to be without merit. First, Petitioner attempts to deflect attention from its employment of nurse aides who were not certified and not actively in the process of obtaining certification by pointing to its internal process of providing orientation and training to its nurse aides. Petitioner's Opposition Brief at 9-10. Petitioner argues that these nurse aides were qualified to provide care to residents based on their satisfying Petitioner's internal competency requirements.

That is not a legitimate defense. It is true that Petitioner had an orientation program. But, this program was not an approved nurse aide certification program. The regulations do not allow facilities to substitute their own unapproved training and orientation programs for that which is required by the regulations.

Second, Petitioner argues that several of its nurse aides had "completed" the course work for certification. Petitioner's Opposition Brief at 18-19. From this Petitioner asserts that these nurse aides were functionally certified even if they had not received certification. However, there is no such thing as "almost certified" as an acceptable substitute for certification. Employees who fail to pass the certification examinations aren't certified and they aren't equivalent to being certified. Thus, the fact that NAs #s 1, 2, 5, and 7 may have completed their classroom instruction for certification does not excuse the undisputed facts that they had not passed the required certification examinations and were not actively attempting to pass those examinations or re-enroll in a certification course during their employment by Petitioner.

Third, Petitioner argues that no facts exist showing that any of its uncertified nurse aides provided improper care to any resident. Indeed, according to Petitioner, the care that these uncertified nurse aides provided was exemplary. Petitioner's Opposition Brief at 11-12. This is a kind of "no harm, no foul" argument in which Petitioner contends that it should not be held noncompliant inasmuch as no resident experienced actual harm.

This argument, if accepted, would render meaningless the regulatory requirements governing the training and employment of nurse aides. Any facility could claim

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compliance even if it employed untrained nurse aides just so long as no resident is actually harmed by that employment practice.

The regulations requiring certification of nurse aides do not give facilities a pass for noncompliance in the absence of evidence of harm to residents. Perhaps more importantly, the fact that no resident is harmed says nothing about the potential for harm that exists when a facility employs uncertified nurse aides. With untrained nurse aides, the potential for harm exists with each new interaction between an aide or aides and a resident. The fact that no resident may have experienced harm in the past may simply be fortuitous.

Fourth, Petitioner contends that its residents expressed satisfaction with the care that they received from Petitioner's staff. Petitioner contends that it should not be penalized given the level of resident satisfaction. Petitioner's Opposition Brief at 12-14. This is another variant of Petitioner's "no harm no foul" argument and it also fails. Residents of a skilled nursing facility may be the last people to consult concerning whether the care that they receive satisfies regulatory requirements and meets professionally recognized standards of care. I do not find that residents are in any position to judge whether the care that they receive poses no potential for harm.

Finally, Petitioner argues that the uncertified nurse aides were supervised at all times when they provided care to residents. Petitioner's Opposition Brief at 20-24. It argues that nowhere, either in New Jersey or in federal law, is there a requirement specifying how nurse aides must be supervised nor is there any prohibition on nurse aides providing care to residents during the period when they are working towards certification.

This argument begs the question of whether Petitioner complied with regulatory requirements. Petitioner's noncompliance does not emanate from the level of supervision that its nursing staff provided to its uncertified nurse aides. Rather, it results from inarguable facts that Petitioner employed nurse aides who were neither certified nor actively seeking to become certified during the course of their employment by Petitioner.

Moreover, Petitioner's contention that the nurse aides in question were closely and directly supervised at all times when they provided care to Petitioner's residents isn't supported by the facts as alleged by Petitioner. Indeed, Petitioner tacitly concedes that at least some of its uncertified nurse aides were allowed to work without direct supervision during part of their employment by Petitioner.

To support its argument Petitioner relies on the affidavit of its director of nursing, Deborah Redinger. P. Ex. 15. But, as Ms. Rediger explains, nurse aides are supervised directly by Petitioner's nursing staff only during a "compliance period" - a period during which Petitioner's staff trains its nurse aides. After Petitioner's staff determines that its nurse aides are competent to perform their duties, they do so without direct supervision.

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Thus, and as CMS contends, Petitioner allows uncertified nurse aides to provide care without direct supervision.

As I have explained, Petitioner's internal procedures and training methods are no substitute for the certification that is required by law. There is no such thing as a functional equivalent to certification. Using uncertified nurse aides to provide care, as Petitioner so plainly did, violates applicable regulations and is grounds for CMS to impose a remedy.

In its pre-hearing brief Petitioner raised an additional argument. There, it asserts that CMS's findings of noncompliance and its remedy determination are invalid because the surveyors who conducted the survey leading to the noncompliance findings and remedy determination did not comply with protocol governing surveys.

This argument provides Petitioner with no defense. Hearings before me are de novo. They are not appellate reviews of surveyor performance. Consequently, the question of whether surveyors complied with protocol governing surveys has no bearing on my decisions in cases involving allegations of noncompliance against skilled nursing facilities.

At the hearing before me it is irrelevant how CMS obtains evidence and facts showing that a facility is noncompliant. If CMS provides evidence establishing a prima facie case of noncompliance (or in this case, undisputed material facts establishing grounds for summary judgment) – whatever the source of the evidence or those facts or how CMS obtained them – that shifts the burden to Petitioner to rebut. If Petitioner rebuts those facts or evidence then it prevails. If it fails to do so I will find it to be noncompliant. But, in no instance will my decision hinge on whether surveyors followed their protocol.

CMS determined to impose a per-instance civil money penalty of $20,965 against Petitioner. That penalty is within the legally authorized range for per-instance penalties. 42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3. I find it to be reasonable based on the undisputed facts of this case.

The penalty amount is at the upper end of the permissible range of per-instance civil money penalties. CMS's determination to impose this penalty is an exercise of discretion on its part. As the undisputed facts establish, Petitioner was noncompliant with regulatory requirements over a period of months when it employed the nurse aides in question without assuring that they were certified or actively working towards certification. During this period, these nurses provided hundreds of hours of resident care. CMS could have, had it chosen to do so, imposed civil money penalties for each day of Petitioner's noncompliance. 42 C.F.R. § 488.438(a)(1). Had CMS done so, those penalties could have, in total, resulted in penalty amounts that are much, much greater than that which CMS determined to impose here. In fact, the penalty that CMS

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determined to impose is but a small fraction of the total penalty amount that CMS had authority to impose.

In deciding whether a civil money penalty amount is reasonable, I consider factors set forth at 42 C.F.R. § 488.438(f)(1)-(4) and at 42 C.F.R. § 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). These factors include the seriousness of a facility's noncompliance, its compliance history, its culpability, and its financial condition.

I must decide the issue of penalty reasonableness based solely on undisputed facts. I may not speculate about any of the regulatory factors absent facts that pertain to those factors. Here, the undisputed facts relate only to the seriousness of Petitioner's noncompliance. Those facts show that Petitioner put its residents in harm's way. Even if no harm resulted to any of the residents, there was a significant risk for harm. Petitioner allowed uncertified nurse aides to provide direct care. As I state above, the care that these nurse aides provided to residents certainly involved interventions that would put residents at great risk for injury or other adverse consequences if not performed competently. Failure to assure that the nurse aides were certified meant that these employees had not attained the minimum competency requirements established by law. That, in and of itself, justifies the penalty.

In determining Petitioner's noncompliance, CMS found that the noncompliance was so egregious as to comprise immediate jeopardy for Petitioner's residents. A finding of immediate jeopardy level noncompliance has great significance in some cases. Where CMS imposes a daily civil money penalty the range of the penalty amount depends on whether there is a finding of immediate jeopardy level noncompliance. 42 C.F.R. § 488.438(a)(1)(i), (ii).

However, a finding of immediate jeopardy level noncompliance is not a determining factor in deciding the reasonableness of a per-instance civil money penalty like the one that CMS determined to impose here. In deciding the penalty amount I consider the regulatory factors that I describe above without reference to whether immediate jeopardy was present. For that reason I do not address either party's arguments about CMS's finding of immediate jeopardy.