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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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St. Catherine's Care Center of Findlay, |
DATE: June 14, 2004 |
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Centers for Medicare & Medicaid Services.
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Docket No.C-01-721
Decision No. Cr1190 |
| DECISION | |
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DECISION Petitioner, St. Catherine's Care Center of Findlay (Petitioner or Facility), is a long term care facility certified to participate in the Medicare and Medicaid programs as a provider of services. Petitioner challenges the Centers for Medicare & Medicaid Services' (CMS's) determination that, from April 11 through May 2, 2001, it was not in substantial compliance with program participation requirements, and, from April 11 through 17, 2001, its deficiencies posed immediate jeopardy to resident health and safety. Petitioner also challenges the penalties that CMS imposed: a Civil Money Penalty (CMP) of $4,550 per day for the seven days of immediate jeopardy, plus $600 per day for the remaining 15 days of noncompliance (total CMP $40,850); denial of payment for new admissions (DPNA) from April 27 through May 2, 2001; and loss of approval to conduct a Nurse Aide Training and Competency Evaluation Program for two years beginning April 11, 2001. For the reasons set forth below, I find that this case presents no genuine issue of material fact requiring an in-person hearing. I also conclude that the facility was not in substantial compliance with program participation requirements for the period in question, and that for seven days, from April 11 through 17, 2001, its deficiencies posed immediate jeopardy to resident health and safety. I find reasonable the amount of the CMP. I. Background As a condition for participation in the Medicare and Medicaid programs, skilled nursing facilities (SNFs) (Medicare) and nursing facilities (NFs) (Medicaid) periodically undergo surveys to determine whether they are in substantial compliance with program requirements, and the Secretary of Health and Human Services contracts with state survey agencies to conduct those surveys. Social Security Act (Act) � 1864(a); 42 C.F.R. � 488.20. The regulations require that each facility be surveyed once every 12 months, and more often, if necessary, to ensure that identified deficiencies are corrected. Act � 1819(g)(2)(A); 42 C.F.R. �� 488.20(a), 488.308. In this case, on April 11, 2001, the Ohio Department of Health (State Agency) completed an extended survey of the facility, concluding that it was not in substantial compliance with federal requirements for nursing homes participating in the Medicare and Medicaid programs. Specifically, the State Agency determined that the facility did not meet requirements under the following regulations:
CMS exhibit (Ex.) 14, at 1-36; Petitioner (P.) Ex. 5, at 1-36. (1) The State Agency also concluded that the facility's most serious deficiencies, which it cited under 42 C.F.R. � 483.13(b) (Tag F-223, Abuse) posed immediate jeopardy to resident health and safety. In a follow-up visit on April 19, the State Agency determined that the facility's deficiencies no longer posed immediate jeopardy, but that the facility's noncompliance continued. CMS agreed with the State Agency, and so advised the facility in a letter dated April 25, 2001. CMS imposed: 1) a $4,550 per day CMP for the seven days of immediate jeopardy (April 11 through 17), continuing at $600 per day effective April 18, 2001, until the facility achieved substantial compliance or its program participation was terminated; and 2) a DPNA effective April 27, 2001. The notice letter also advised that Nurse Aide Training and Competency Evaluation Programs could not be offered by or in the facility for two years because the facility had been subject to an extended survey after findings of substandard quality of care. CMS Ex. 1; P. Ex. 4. The State Agency subsequently conducted a second follow-up survey on May 3, 2001, and found that the facility had achieved substantial compliance. P. Ex. 2, at 6. By letter dated May 24, 2001, CMS advised Petitioner that the DPNA was discontinued effective May 3, 2001, the day the facility achieved substantial compliance, that CMS would no longer pursue the remedy of termination, and that the CMP of $600 per day was discontinued as of May 3, 2001. CMS Ex. 3; P. Ex. 3. The CMP thus totals $40,850. In the meantime, following informal dispute resolution (IDR), the State Agency amended its statement of deficiencies, and, by letter dated May 14, 2001, sent Petitioner the amended statement of deficiencies. P. Ex. 1. The amended statement removed the abuse citation (Tag F-223), but the deficiencies cited under Tag F-223 were cited at the immediate jeopardy level under Tag F-324 (42 C.F.R. � 483.25(h)(2) Quality of Care - Accidents). (2) The scope of the deficiencies cited under Tag F-250 (Social Services) was changed from "widespread" to "pattern" of deficiencies, reducing scope and severity from level F to level E. And some changes were made in the text of some of the other deficiencies. Compare P. Ex. 1 with CMS Ex. 14; see also CMS Ex. 9, at 3 (confirming the change from Tag F-223 to F-324) and P. Ex. 2, at 5. (3) The facility timely appealed, and the case was assigned to me. In a motion dated June 7, 2002, CMS moved for summary judgment. See CMS Motion for Summary Judgment and Memorandum in Support (CMS MSJ Brief). Petitioner opposed, arguing that "issues of deficiencies are in dispute" and "issues remain with respect to CMS's allegation of immediate jeopardy under Data Tag F-223 (Abuse)." St. Catherine's Care Center of Findlay's Response to Respondent's Motion for Summary Judgment (P. Response) at 1. CMS filed a reply brief, Opposition of CMS to the Petitioner's Response to Respondent's Motion for Summary Judgment (CMS Reply). With their briefs, the parties submitted proposed exhibits. Petitioner submitted six exhibits (P. Exs. 1-6) and a written declaration from Brian Braumiller, D.O. CMS submitted 20 exhibits (CMS Exs. 1-20). Petitioner objected to CMS Exs. 11, 18, and 20, characterizing CMS Ex. 11 as "not credible, trustworthy or reliable," and CMS Exs. 18 and 20 as "incomplete and not authenticated." Petitioner, St. Catherine's Motion to Delete Exhibits. I reviewed the parties' submissions. In an order dated December 4, 2003, I agreed with CMS that Petitioner had not articulated a material fact in dispute. I nevertheless declined to issue summary judgment, primarily because neither parties' submissions considered the changes made following IDR. I directed CMS to file an amended motion for summary judgment and memorandum in support, with affidavits, as appropriate. I directed Petitioner to respond to CMS's amended motion for summary judgment, and admonished that "if Petitioner contends that material facts are in dispute, necessitating an in-person hearing, it must not only articulate those facts, but must tender evidence in support of that contention." Order at 3 (Dec. 4, 2003). I urged the parties to familiarize themselves with the Board decisions on summary judgment, including Carrier Mills Nursing Home, DAB No. 1883 (2003), Livingston Care Center, DAB No. 1871 (2003), Crestview Parke Care Center, DAB No. 1836 (2002), Everett Rehabilitation and Medical Center, DAB No. 1628 (1997), and Carmel Convalescent Hospital, DAB No. 1584 (1996). Id. at 4. In accordance with my order, CMS filed its Amended Motion for Summary Judgment and Memorandum in Support (CMS Amended MSJ Brief). Attached to its brief were two additional exhibits, CMS Exs. 21 and 22. Petitioner responded with St. Catherine's Care Center of Findlay's Response to Respondent's Motion for Summary Judgment (P. Amended Response). CMS filed a Memorandum in Opposition to Petitioner's Response to CMS's Motion for Summary Judgment (CMS Amended Reply). Attached to P. Amended Response were declarations from occupational therapist (OT) Laura Colliflower, nurse consultant Thomas J. Schindler, and a supplemental declaration from Dr. Braumiller. Petitioner also attached OT Colliflower's resume, which I have marked P. Ex. 7 (3 pages), a document titled "Nonviolent Crisis Intervention Instructor's Manual," which I have marked P. Ex. 8 (13 pages), and documents titled "Nonviolent Crisis Intervention Training Roster," which I have marked P. Ex. 9 (6 pages). For purposes of this summary judgment ruling, and, in the absence of any objection, I admit CMS Exs. 1-10, 12-17, and 19, P. Exs. 1-9, the Colliflower, Schindler, and Braumiller declarations, and the Braumiller Supplemental Declaration. Without ruling on the merits of Petitioner's objections, I decline to admit CMS Exs. 11, 18, and 20, since these documents are not critical to CMS's case. (4) II. Issues I consider first whether summary judgment is appropriate. On the merits, the case presents the following questions:
III. Statutory and Regulatory Background The Act sets forth requirements for nursing facility participation in the Medicare and Medicaid programs, and authorizes the Secretary of Health and Human Services to promulgate regulations implementing the statutory provisions. Act �� 1819 and 1919. The Secretary's regulations governing nursing facility participation in the Medicare program are found at 42 C.F.R. Part 483. To participate in the Medicare and Medicaid programs, facilities periodically undergo surveys to determine whether they comply with applicable statutory and regulatory requirements for Medicare (SNFs) and/or Medicaid (NFs). They must maintain substantial compliance with program requirements, and, 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. Under the statute and "quality of care" regulation, each 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 resident's comprehensive assessment and plan of care. Act � 1819(b); 42 C.F.R. � 483.25. Specifically, the facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents. 42 C.F.R. � 483.25(h)(2). "Accident" is defined in the State Operations Manual (SOM) issued by CMS as "an unexpected, unintended event that can cause a resident bodily injury," excluding "adverse outcomes associated as a direct consequence of treatment or care (e.g., drug side effects or reactions)." SOM Appendix PP, Guidance to Surveyors, Part 2, SOP 483.25 Quality of Care (Rev. 274, June 1995)(SOM Guidance); See Woodstock Care Center, DAB No. 1726, at 4 (2000), aff'd Woodstock Care Center v. Thompson, 2004 FED App. 0095P (6th Cir.). If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. � 488.406, which include imposing a CMP. See Act � 1819(h). CMS may impose a CMP for the number of days that the facility is not in substantial compliance with one or more program requirements or for each instance that the facility is not in substantial compliance. 42 C.F.R. � 488.430(a). In situations where the deficiencies do not constitute immediate jeopardy, but have caused actual harm or have the potential for more than minimal harm, CMS may impose a CMP in the lower range of $50 to $3,000 per day. Penalties in the range of $3,050 to $10,000 per day are imposed for deficiencies constituting immediate jeopardy. 42 C.F.R. � 488.438. In setting the amount of the CMP, CMS considers: 1) the facility's history of noncompliance; 2) the facility's financial condition; 3) 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. 42 C.F.R. � 488.438(f). The factors in section 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. IV. Discussion
The right to an in-person hearing has never been absolute. Unless the parties raise a genuine issue of material fact, an administrative law judge (ALJ) may decide a case on summary judgment, without an evidentiary hearing. Lebanon Nursing and Rehabilitation Center, DAB No. 1918 (2004); Carrier Mills Nursing Home, DAB No. 1883 (2003); Livingston Care Center, DAB No. 1871 (2003); Crestview Parke Care Center, DAB No. 1836 (2002); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997); Carmel Convalescent Hospital, DAB No. 1584, at 27 (1996). To defeat a motion for summary judgment, the non-moving party may not rely on the denials of its pleadings, but is required to tender evidence of specific facts, in the form of affidavits and/or admissible discovery material, in support of its contention that a dispute exists. Crestview at 6 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986)). In determining whether this case can be decided by summary judgment, I apply the standard articulated by the Board in Crestview. I evaluate Petitioner's rationale for its alleged disputes of fact, and its proffered evidence "to see if a genuine dispute of fact has been raised." If I conclude that such a dispute has been raised, for summary judgment purposes, I resolve that dispute in favor of the nonmoving party, "just as if it had been established by a preponderance of the evidence." Crestview Parke Care Center, DAB No. 1836 at 8. See also Carmel Convalescent Hospital, DAB No. 1584, at 22 (where the petitioner had the opportunity to present its case with briefs and supporting documentation, but did not demonstrate a genuine dispute of material fact, the Board affirmed summary disposition); Glenburn Home, DAB No. 1806, at 17 (2002) ("[I]n reviewing a case where an ALJ failed either to obtain a written waiver or hold an oral hearing, we may nonetheless uphold the decision if the affected party either had conceded all of the material facts or proffered testimonial evidence only on facts which, even if proved, clearly would not make any substantive difference in the result.") and Cherrywood Nursing and Living Center, DAB CR845 (2001) ("Where inferences made from facts which are averred to support a motion must be made in a manner most favorable to the party that opposes the motion, it is not sufficient for a party simply to state that it disputes allegations of fact in order to avoid possible entry against it of summary disposition. That party must describe the asserted facts credibly in order to establish a dispute.") To establish that summary judgment is appropriate here, CMS points to the facts set forth in the Statement of Deficiencies and to additional evidence from the facility's own submissions, asserts that these facts are not in dispute, and that they establish the facility's noncompliance with the quality of care regulation at the immediate jeopardy level. See CMS MSJ Brief at 3 et seq.; CMS Amended MSJ Brief at 3-4. Petitioner does not directly challenge CMS's articulated facts. Instead, Petitioner points out that the "United Supreme Court" held in Celotex (6) that summary judgment is appropriate --
(Emphasis in original). P. Amended Brief at 1-2. I do not disagree. See Lebanon at 4-5. However, Petitioner also makes the wholly unsupported statement that CMS "bears all burdens of production, proof and persuasion," and argues:
P. Amended Response at 2. In fact, as discussed more fully below, CMS has set forth the basis for its motion and has identified portions of the record demonstrating the absence of a genuine issue of material fact on the essential elements of its case. In light of this, Petitioner's burden is straight-forward: identify which of CMS's articulated facts it disputes, and, where CMS has pointed to record evidence in support of its position on a fact identified by Petitioner as disputed, Petitioner must provide evidence that a dispute exists to justify an in-person hearing. Lebanon at 5. Conclusory remarks such as "there is a material fact as to the issue of substantial non-compliance for a great number of reasons," (P. Amended Response at 3) or "due consideration of Petitioner's evidence and arguments demonstrates a triable issue of material fact" (P. Amended Response at 18) do not identify disputed facts. Indeed, as I discuss below, far from identifying the facts with which it disagrees, Petitioner has affirmatively conceded most of the facts upon which CMS relies. Petitioner nevertheless suggests that CMS has failed to meet its "initial burden" because it has submitted no declarations of witnesses or comparable evidence showing the absence of a genuine issue of material fact. Petitioner argues that "evidence to support a motion for summary judgment must be of a type described in . . . Rule 56(c)" of the Federal Rules of Civil Procedure, and complains that CMS had submitted no affidavits or declarations in support of its motion. P. Response at 2; P. Amended Response at 1-2. In fact, Rule 56 specifically allows either party to move for summary judgment "with or without supporting affidavits." FRCP 56(a) and (b). See Celotex, 477 U.S. at 323 ("[W]e find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim.") Moreover, under Rule 12(c) FRCP, a party may also move for a judgment on the pleadings, and, if, based on the pleadings alone, no matters appear in dispute, judgment may be granted. Thus, even under the more stringent federal rules, a party may move for summary judgment or judgment on the pleadings simply by averring the facts it asserts to be non-contested. The opposing party must then show a genuine dispute as to those averred facts. If a party avers facts, even without supporting proof, and the opposing party does not contest them, under the federal rules, the moving party prevails so long as it is correct on the law. The federal rules obviously do not directly apply to these administrative proceedings. However, the rationale underlying those rules is sound. See Lebanon at 4. Petitioner challenges what it characterizes as CMS's underlying premise that "the mere fact that recorded instances of assault, attempted assault, and/or other so-called aggressive behaviors means that the conduct in fact happened and somehow implies or evidences a want of supervision." P. Amended Response at 3. If the facility's own records document "instances of assault, attempted assault, and/or other aggressive behaviors," and Petitioner offers no evidence to the contrary - indeed, Petitioner's own witnesses and employees acknowledge that "the conduct, in fact, happened" - I have no alternative but to conclude that the conduct, in fact, happened. Whether undisputed incidents of assault, attempted assault, and other behaviors establish a "want of supervision," and, thus, substantial noncompliance is a legal issue, not a question of fact that would require an in-person hearing. (7) Of course, CMS is entitled to summary judgment only if it also establishes that, based on the undisputed facts, it is entitled to judgment as a matter of law. I now consider that question.
The quality of care regulation, 42 C.F.R. � 483.25, imposes on facilities an affirmative duty designed to achieve favorable outcomes "to the highest practicable degree." Windsor Health Care Center, DAB No. 1902, at 16-17 (2003); Woodstock, DAB No. 1726, at 25-30. In ensuring adequate supervision, the facility is not required to do the impossible or be a guarantor against unforeseeable occurrence, but it is required to "take reasonable steps to ensure that a resident receives supervision and assistance devices designed to meet his or her assessed needs and to mitigate foreseeable risks of harm from accidents." 42 C.F.R.� 483.25(h); Windsor Health Care Center, DAB No. 1902, at 5; Asbury Center at Johnson City, DAB No. 1815, at 12; Koester, DAB No. 1750, at 25-26; Woodstock Care Center, DAB No. 1726, at 25.
Windsor, DAB No. 1902, at 5. Here, the parties agree that many of the facility's residents had serious mental illness and displayed significant behavior problems. Three particularly aggressive and sometimes dangerous residents, R15, R18, and R32, exhibited physically injurious behavior - hitting, punching, pushing, slapping, kicking, and biting - toward the residents and staff. The victims of these attacks sustained bruises, abrasions, and, on at least one occasion, lacerations requiring medical intervention. In presenting its position as to these incidents, Petitioner relies on the IDR submission signed by facility administrator, Sue Fretz. P. Ex. 6, at 1-21. Administrator Fretz was not the facility's administrator during the relevant time, however. Through the completion of the survey, Joelyn Etgen was the facility administrator, and Administrator Fretz apparently replaced her sometime shortly thereafter. See, e.g., P. Ex. 1, at 1, 34; P. Ex. 4, at 5. In her submissions to IDR, Administrator Fretz does not claim personal knowledge of the events, but, like the state surveyors, relies on her review of the facility treatment records. Nor does Petitioner submit here a written declaration from Administrator Fretz. Instead, it submits declarations from OT Colliflower and nurse consultant Schindler. Neither Colliflower nor Schindler discusses the specific allegations of fact put forth by CMS; instead, each incorporates the contents of Administrator Fretz's letter into her/his declaration. Colliflower Decl. at 1-2, �3; Schindler Decl. at 2, �5. (8) Notwithstanding the peculiarities of this evidentiary piggybacking, for summary judgment purposes, I accept the facts articulated in the Fretz submissions, although not the conclusions that Administrator Fretz and Petitioner's witnesses draw from those facts. (9) Resident 15 (R15). R15 was admitted to the facility on November 24, 2000, diagnosed with schizophrenia. At the time of the survey, he was 39 years old, weighed 148 pounds, and was taking multiple psychotropic medications. P. Ex. 1, at 22; see CMS Ex. 14, at 4; P. Ex. 6, at 1. According to his Minimum Data Set (MDS), completed December 5, 2000, he exhibited verbally abusive behavior, and socially inappropriate/disruptive behavior, although he had not exhibited physically abusive behavior within the preceding seven days. P. Ex. 6, at 29. According to his care plan, a portion of which Petitioner submitted, he was "known to be sexually inappropriate," and displayed paranoid/delusional behavior. Among the approaches targeting his inappropriate behavior, staff were to redirect "if possible." If not able to redirect, they were instructed to return him to his room, provide medications as ordered, consult his physician for medication adjustments, as needed, "provide safety to [R15] and all other residents during acute phase of behavior." Additional approaches were written in later, but not all of those entries are dated. An entry dated 3/28/01 says "may utilize CPI technique as indicated." Undated entries say "know that other resident behaviors may trigger [R15's] behaviors," and "Remove [R15] from source if he is agitated if able," and "Do not encourage or except (sic) inappropriate advances (i.e. hugging, kissing, touching) staff or other residents." P. Ex. 6, at 30-31. At the time his care plan was developed, December 5, 2000, R15 had not exhibited physically abusive behavioral symptoms, and his care plan does not identify as problems violent or physically aggressive behavior. The evidence establishes only one psychiatrist visit to the facility during R15's time there. On January 19, 2001, the facility's then attending psychiatrist and the physician identified as R15's treating physician, Dr. Nockowitz, visited the facility, and signed orders changing R15's medications. Dr. Nockowitz ordered 500 mg. Depakote, an anticonvulsant, twice a day, plus 100 mg. Thorazine, an antipsychotic, three times a day, and 10 mg. Zyprexa, an atypical antipsychotic, every night. P. Ex. 6, at 16, 33. Unquestionably, this is a powerful combination of drugs. The record also shows that R15 thereafter exhibited multiple instances of severe behaviors through the end of January and into February, including: increased agitation, hyper-pacing, verbal aggression, "pressured and explosive speech," violent comments. P. Ex. 6, at 34 et seq. On January 27, for example, the notes describe:
P. Ex. 6, at 38. See also P. Ex. 6, at 39-42 ("unpredictable mood swings," "severely agitated," "unable to redirect," "talking about killing [and] beating up a res[ident]," "verbal altercation," "verbal aggression toward staff.") Throughout the day on February 5, 2001, R15 is described in the nurses' notes as agitated and aggressive. A 3:30 p.m. note indicates that staff were unable to calm or redirect him. He threatened staff, used racial slurs against other residents, and refused to take any prn (as needed) medications. Later, "laughing hysterically," he told staff he had a nuclear bomb and God told him to kill white people. P. Ex. 6, at 42. Eventually, he took his prn Ativan, and apologized to the staff, saying, "I'm sorry. I know I'm doing it but I can't stop myself." P. Ex. 6, at 43. The nurses' notes indicate that at 11:05 a.m. on February 7, 2001, R15 was arguing with another resident, both talking loudly. He "grabbed the other [resident] and pushed him into [the] wall[,] causing harm to [the] other [resident]." He was "punching other [resident] in the face." Staff unsuccessfully attempted to separate them. P. Ex. 6, at 45. The sheriff's department was called and R15 was discharged from the facility, escorted out in handcuffs and shackles. Staff notified Dr. Mount (10) and Dr. Nockowitz. P. Ex. 6, at 45. R15 was readmitted to the facility on February 15, 2001. Petitioner has not claimed, and the record does not suggest, that the facility revisited his care plan or took any other specific actions to prevent recurrence of the February 7 incident. Nurses' notes dated February 21, describe R15 as "verbally abusive," with unpredictable mood swings. P. Ex. 6, at 47. On February 22, 2001, at 11:15 a.m., he had an altercation with another resident. According to the nurses' notes, he had been watching a video when the other resident started changing channels. "Racial slurs were exchanged," and R15 "puts hands around [the] other resident neck briefly." They were "easily" separated by staff. P. Ex. 6, at 3, 47. Another incident occurred on March 12, 2001, at 12:35 a.m. According to the nurses' notes, R18 "wouldn't leave him alone to watch TV, even though [R15] asked him to sev[eral] times. [R15] stood up, yelled at [R18], and shoved him backwards into easy chair." P. Ex. 6, at 3-4, 48. At 12:30 p.m. on March 24, R15 is described as "verbally aggressive," refusing his medication, and calling staff foul names. Staff attempted the interventions described in his care plan, with no effect. Although he apologized for his behavior at 3:00 p.m., at 4:30 p.m., he punched a resident in the chest and right eye. Someone then punched him in the jaw. According to the note, the incident began when the other resident stole R15's Bible. Staff gave R15 Ativan and "redirected" him. P. Ex. 6, at 4, 49. Nurses' notes again describe R15 as verbally abusive to staff at 1:10 p.m. on March 26. A 5:30 p.m. entry describes an incident in which he started yelling at an elderly woman at the dinner table. Staff characterize his behavior as "verbally abusive" and "threatening." P. Ex. 6, at 141. On March 27 and 28, notes describe R15 as "wound up," "very active," and refusing his medications. He used foul language, and pulled down his pants three times. He "lightly tapped" another resident on the buttocks with a belt. At 8:00 p.m. he threatened a nurse, and tried to hit her in the face. P. Ex. 6, at 142. On March 31, 2001, at 6:05 a.m., R15 pushed a resident backwards. According to the nurses' notes, he was in the TV area. The other resident tried to change the channel, and R15 became upset, "yelling, cursing." He "shoved" the resident backwards, with both hands on his shoulders. Staff efforts to intervene were not successful. P. Ex. 6, at 4, 50. About 40 minutes later, in the smoking room, R15 again became agitated, yelling and cursing at another resident. He pushed the resident and the other resident responded by pushing R15 against the wall, and hitting him on the arms, legs, and other parts of his body. R15 pushed the resident down to his hands and knees and was hitting him on the back and arms. "Other [resident's] head was hit." Staff separated them with difficulty. During the course of this altercation, R15 also injured himself by digging his fingers into his own hand and into the skin above his left eyebrow. P. Ex. 6, at 50. April 4 nurses' notes describe R15 as very agitated at 5:15 p.m. He picked up a chair as if to strike another resident, and was redirected with difficulty. He was taken outside and calmed down. A 7:00 p.m. note mentions that R15 frequently refused to take his medication, becomes "agitated," "verbally and physically aggressive," and "paces." P. Ex. 6, at 52. At 12:15 a.m. the morning of April 5, R15 was again "pacing, talking aggressively, using foul language." He is described as "ranting" on a variety of subjects, and using racial slurs. He focused his attention on one particular resident, who was sitting at a table, not saying anything to him. Again, staff were not able to redirect him, although at 4:00 a.m. he attempted to apologize to the resident with whom he had the earlier altercation. P. Ex. 6, at 52. On April 5, 2001, at 8:00 p.m., nurses' notes state that R15 became highly agitated, threatening another resident with bodily harm. He hit another resident in the face, and then picked up a chair and "was going to hit another resident with it." Staff separated them. P. Ex. 6, at 4, 52. A late entry affirms that at 8:00 p.m., he hit another resident in the face. P. Ex. 6, at 54. According to the nurses' notes, at 11:10 p.m., he was becoming verbally aggressive with another male resident, making threats regarding "fighting him," and saying "Get him out of here or I'll whip his [expletive deleted] tonight." Staff stood between the residents, but R15 started pushing the staff member. The note says that he calmed down, but also that his threats increased. Staff ultimately took his roommate to another room. P. Ex. 6, at 54. On April 6, 2001, R15 returned from an outing with his family, very agitated. Another resident, R19, tried to calm him down, and a fist fight ensued, with R19 suffering scratches to his right shoulder blade and lower rib cage, abrasions to his left shoulder blade, bruises to his right forehead and right cheek, abrasions to his right cheek, a scrape to the bridge of his nose, and a cut to the center of his lip. Staff attempted to intervene but were "unable to redirect." At 7:00 p.m., the sheriff was notified, and at 8:30 the sheriff's department removed R15 to an acute care psychiatric facility. P. Ex. 1, at 22-23, 45; P. Ex. 5, at 102, 118; P. Ex. 6, at 54. See CMS Ex. 14, at 3-4. In her IDR submission, Administrator Fretz acknowledges R15's behavior, but attributes it to "his disease process." P. Ex. 6, at 1 et seq. I do not disagree. Obviously, his were the actions of an individual with serious mental illness. Administrator Fretz points out the numerous incidents in which no one was seriously injured, argues that staff responded appropriately, and, remarkably, in some instances, she attempts to justify the resident's extremely inappropriate behavior. For example, with respect to the February 22, 2001 incident in which R15 "briefly" put his hands around another resident's throat, she asserts that the other resident "provoked him by changing channels and was using racial slurs." P. Ex. 6, at 3. Addressing the March 12 incident in which R15 pushed R18 into a chair, she notes that R15 was watching TV, and "the other resident 'would not leave him alone even though [R15] asked him several times.'" According to Administrator Fretz, R15 "was provoked in this incident. His reaction was to get up, push the provoker out of the way and leave the area. This is not unusual behavior for a mentally ill resident." P. Ex. 6, at 3-4. Administrator Fretz acknowledges that R15 "punched a resident in the chest and right eye" on March 24, but argues that the nurses' notes "clearly indicates (sic) that this incident only occurred after another resident stole [R15's] Bible," and points out that R15 was himself "hit by another and punched in the jaw." He reacted by twice punching the resident in the chest and eye. P. Ex. 6, at 4. Similarly, addressing the March 31 incident, she notes that another resident "caused [R15] to become upset after the other resident attempted to change the TV channel," so R15 pushed the resident backwards, "but [R15] was not being aggressive towards this other resident, but did push him out of the way, without injury, as he left the area." P. Ex. 6, at 4. She does not address the later, more serious altercation that resulted in R15's pushing another resident down and pummeling him. Administrator Fretz agrees that on April 5 R15 hit another resident, but adds "only after the other resident pushed [him]." She also concedes that he "picked up a chair as if he was (sic) going to hit the other resident," but emphasizes that he did not, in fact, hit the resident with the chair. Id. Addressing the altercation of April 6, which resulted in R15's final discharge from the facility, Administrator Fertz argues that because he spent the day with his family, the "facility was not able to monitor or provide intervention as behaviors escalated." (11) She does not deny that the fist fight with R19 occurred, nor that R19 was injured. She points out that staff intervened, although she also acknowledges that the interventions were not effective. Ultimately, she points out that the facility contacted the physician and the mental health crisis center, which "assisted in the discharge of the resident from the facility." P. Ex. 6, at 4. Resident 18 (R18). R18 was 50 years old, weighed 194 pounds, and was admitted to the facility with diagnoses of schizophrenia, bipolar affective disease, diabetes mellitus, hypertension, and hypothyroidism. He received multiple psychotropic medications. P. Ex. 6, at 5, 56. According to CMS, the nurses' notes document his hitting doors and the plexiglass window at the nurses desk, stealing food from other residents, attempts to elope, kicking a hole in a closet door, and verbal and physical abuse. P. Ex. 1, at 23. Again, although Administrator Fretz challenges some of the details alleged in the survey report, she generally concedes R18's behaviors and the incidents cited in the nurses' notes. Specifically, R18 was the other resident involved in the February 22 altercation with R15, which led to R15's putting his hands around R18's neck. P. Ex. 6, at 5, 58. A February 23 nurses note describes R18's stealing food from the trays belonging to other residents, and his becoming violent when asked to stop. He "used his fist" on doors and walls, used foul language to staff, demanded cigarettes, was "constantly trying to go into [the nurses station] to get things that don't belong to him." He grabbed at staff and "tries to feel them or kiss them." The interventions listed in his care plan had no effect. P. Ex. 6, at 58. Nurses' notes dated February 25, 2001, describe verbal confrontations with another resident over television. At 4:50 p.m., another resident slapped him in the face, claiming that R18 had hit him in the stomach, and he "was just hitting him back." Staff notified Drs. Mount and Nockowitz of the incident. P. Ex. 6, at 5, 59. On February 26, staff again describe R18 as "verbally and physically aggressive," hitting the nurses station door, slamming the door to the smoking room. He was apparently upset about the smoking schedule. Interventions were not successful. P. Ex. 6, at 59. At 9:40 a.m. on February 27, R18 hit a staff member in the back "for no apparent reason." Staff notified Dr. Nockowitz and R18's brother. P. Ex. 6, at 5, 60. Later that morning, R18 is described as "really disruptive" during exercises. That afternoon, staff again called Dr. Nockowitz's office. P. Ex. 6, at 60. At 9:25 a.m. on February 28, R18 grabbed a nurse's arm and pushed it backward. P. Ex. 6, at 60. (12) On March 3, 2001, at 8:05 p.m., a female resident complained of R18's inappropriately touching her. P. Ex. 6, at 61. A March 4 entry says that R18 "tries to kiss [and] hug [and] touch staff." P. Ex. 6, at 61. On March 7, 2001, the nurses' notes show that R18 became upset because another resident bought and ate pizza. P. Ex. 6, at 5-6, 63. An entry dated March 12 at 2:35 p.m. describes an "altercation" with another resident, apparently R15. Consistent with the nurses' notes for R15, R18 "kept bothering him" and was "in his way," preventing him from watching television. Several times, R15 asked R18 to leave him alone. R15 then stood up and "pushed [R18] backwards a few steps into easy chair [with] both hands on chest/shoulder area." Staff intervened. P. Ex. 6, at 63. On March 13, R18 was wearing his roommate's shirt. Staff asked him to change, and he "stomped" off to his room. "Another resident stepped in his path and [R18] 'pushed' him out of the way." The other resident fell. On March 14, 2001, R18 hit a resident on the top of the head. On March 16, he pulled a resident out of a chair. P. Ex. 1, at 24; P. Ex. 6, at 6. On March 22, R18 pushed and then punched a staff member in the face. Staff could not prevent him from running out the gate, although they retrieved him, and calmed him down. He refused his medication. P. Ex. 6, at 66. They informed his brother, who expressed concern and said that he wanted R18 seen by a psychiatrist as soon as possible. P. Ex. 6, at 66. (13) On March 24, R18 punched another resident in the face. This appears to be another incident involving R15. R18 stole R15's bible, an altercation ensued, and R18 punched R15 in the right jaw. P. Ex. 6, at 67. A March 27 note indicates that although R18 is diabetic and on a special diet, he sneaks food whenever he can get it. P. Ex. 6, at 67. Notes dated March 28 and 29 describe an inappropriate sexual advance toward staff, pushing himself into the nurses station and pushing an aide, pounding on the kitchen door, taking coffee from the cup of another resident, pounding on the tables. Staff attempted interventions with no effect. P. Ex. 6, at 69. On March 30, 2001, while playing cards with a wheel-chair bound resident, he slapped her in the face without provocation. Later that day, he hit another resident in the back after running up and down the corridors in an agitated state. He hit a staff member in the chest and pushed him against the door. He hit a resident who was sitting in a wheel chair, then ran from room to room, slamming doors, verbally abusing the staff, and upsetting the other residents. P. Ex. 6, at 68. Finally, at 2:40 in the afternoon, staff notified Dr. Ammons of the behaviors. P. Ex. 6, at 68. (14) At 6:40 a.m. on March 31, 2001, he struck another resident "in numerous body areas." Staff called Dr. Ammons at 10:45 a.m., who suggested a screen from Century Health. P. Ex. 6, at 70. R18 was discharged, transferred by ambulance to an acute care hospital. P. Ex. 1, at 23-24; P. Ex. 5, at 46, 103; P. Ex. 6, at 5-6, 71. Responding to this evidence, Administrator Fretz again points out the instances in which no one was injured, and argues generally that staff responded appropriately to the resident altercations. With respect to the female resident who accused R18 of inappropriate touching, Administrator Fretz does not dispute that the resident made the accusation, but observes that no staff member actually observed the incident. Without commenting specifically on the purported victim, Administrator Fretz is nevertheless dismissive of her charges, because "all of the residents on the unit are mentally ill," and "may have emotional disequilibrium and will fabricate stories." P. Ex. 6, at 5. I fully recognize the possibility that a mentally ill woman might not be the most reliable witness. However, R18 had a history of this type of behavior, as repeatedly documented by staff. That the facility would simply dismiss the accusation based on the purported victim's mental illness does not suggest a facility taking reasonable steps to mitigate foreseeable risks of harm. This record contains no evidence of any investigation into the charges, nor suggestion of facility efforts to protect residents (or staff) from R18's inappropriate sexual advances. Instead, Petitioner offers only Administrator Fretz's wholly inadequate suggestion that accusations from a mentally ill person need not be taken seriously because the mentally ill "fabricate stories." With respect to the March 13 incident, Administrator Fretz opines, based on her review of the nurses' notes, that R18's pushing another resident was not an act of aggression. I do not consider this an appropriate response. No matter how one characterizes the incident, R18 was obviously angry and he pushed someone down. P. Ex. 6, at 6, 64. Such actions unquestionably create a dangerous situation in which residents can be injured, and the facility is obligated to take reasonable steps to prevent this from happening. Resident 32 (R32). R32 was 49 years old and weighed 265 pounds. He was admitted to the facility in January 2001, with diagnoses of psychotic disorder, mental retardation, diabetes mellitus, and breast cancer. He also received multiple psychotropic medications. R32 physically assaulted other residents four times between February 25 and April 5, 2001. Specifically, on February 25, he slapped a resident in the face, claiming that the resident had hit him in the stomach. Staff notified Dr. Mount. P. Ex. 6, at 77. On February 26, he pushed a resident, claiming that "she was going to hit him." P. Ex. 6, at 77. On April 5, R32 "went over to [a] female resident" and "grabbed the top of her hair." He told her that "she had the devil in her that needed to come out." The victim was described as "screaming." P. Ex. 6, at 79. He later told staff that he would "hang all the nurses on [the] shift." P. Ex. 6, at 80. At 8:00 p.m. he became highly agitated, and pushed another resident to the floor, causing a laceration that required sutures. Staff notified Dr. Ammons and called the sheriff's department, which took him to a hospital psychiatric unit for treatment of his combative and unpredictable behavior. P. Ex. 6, at 80, 82. R32 was readmitted to the facility on April 9, 2001, but sent back to the emergency room on April 13, 2001, for "evaluation of behavior." P. Ex. 5, at 48, 57, 119. The record contains no nurses' notes for this period following his readmission. Dr. Braumiller's name appears on the transfer order sending R32 to the emergency room for "evaluation of behavior vs medical condition." The order is dated April 13, and R32 was transferred April 13. Dr. Braumiller signed the order on April 17. (15) Administrator Fretz asserts that the February 25 incident, in which R32 slapped a resident, was his first such incident even though he was admitted on January 16. P. Ex. 6, at 7. (16) She justifies his pushing another resident on February 26, because the other resident "appeared ready to hit him." P. Ex. 6, at 7. With respect to the events of April 5, she does not agree that R32 was "highly agitated." She also criticizes the survey report because it says that R32 "pulled" the other resident's hair. Administrator Fretz "does not read the nurses entry to mean that he pulled the hair," but that he "grabbed" the top of her hair. P. Ex. 6, at 7. I consider this too fine a distinction. Whether he pulled her hair or "merely" grabbed it, his actions were an unwelcome assault that left the victim "screaming." Administrator Fretz agrees that R32 pushed another resident at 8:00 p.m. that night, but points out that he was having hallucinations. Staff intervened and he was discharged. P. Ex. 6, at 7. Administrator Fretz asserts that "due to his diagnosis, any caretaker would expect him to be inappropriate at times." P. Ex. 6, at 8. Other incidents. Incidents involving other residents are documented: for example, a Resident Altercation Review form describes a March 30 incident involving a male and female resident. The woman threw a candy bar at the man. He picked it up and kept it. She tried to take his soda, but spilled it. He jumped up and punched her three times in the face. Staff separated them and "counseled on inappropriate behavior." The form indicates that no changes would be made to the man's care plan, but the facility would "review meds" and "educate staff regarding residents' horseplay." P. Ex. 6, at 85.
Assaults by residents who are out of control because of mental illness fall within the definition of accidents. Woodstock, DAB No. 1726, at 6, 17 et seq., but see 6th Cir. at 10. ("A resident so ill-supervised that he has the opportunity to assault other residents repeatedly and severely may well also be inadequately supervised to prevent accidents.") In its efforts to defend violent resident behavior, Petitioner misses the purpose of the quality of care regulation. No one blames mentally ill people for behavior attributable to their illnesses. Rather, the regulation requires that the facility try to protect residents and staff from that violent and dangerous behavior. That "all of the residents on the unit were mentally ill" does not justify the facility's failure to take reasonable steps to mitigate foreseeable risks of harm to them from accidents. Obviously, controlling symptoms of mental illness requires psychiatric interventions and oversight. Here, everyone in the unit had mental illness, and Petitioner does not deny that 45 residents displayed behavioral symptoms. (17) Yet, no psychiatrist even set foot in the facility between January 19, 2001 and April 16, 2001. According to Administrator Fretz:
P. Ex. 6, at 16, 105, 106, 107. Consistent with the Fretz statement, in a letter dated April 13, 2001, Dr. Braumiller tells Tom Schindler:
P. Ex. 6, at 107. So the documentary evidence and Administrator Fretz's statements establish that Dr. Braumiller only started seeing facility residents on April 16. (19) The evidence suggests that, before then, a mentally ill resident saw a psychiatrist only after he was involved in a behavioral incident so acute as to require his discharge in shackles, under the control of the sheriff. Aside from intervening when behaviors got out of hand, the facility did virtually nothing to prevent injury to its mentally ill, behaviorally-challenged residents. CMS asserts that notwithstanding its 45 residents with behavioral symptoms, the facility had no behavior management programs. Petitioner does not challenge the fact, but argues that CMS has not shown that a behavior management program is required.
P. Amended Response at 4. I agree that under 42 C.F.R. � 483.25, the facility has flexibility to choose its own methods for preventing accidents. However, as a matter of law, the facility is required to provide supervision and assistive devices designed to meet the resident needs and to mitigate foreseeable risks of harm. Providing its most aggressive residents, like R15, R18, and R32, with behavior management programs might have been an appropriate method. Dr. Braumiller apparently thought so. In his April 23, 2001 memo to Tom Schindler, Director of Operations, he opined that the patients would "benefit from behavioral therapy." P. Ex. 6, at 102. Instead of behavior management, Petitioner points to the resident care plans and staff training in a "crisis protection and intervention program" as the methods by which it attempted to mitigate foreseeable risks of harm. P. Amended Response at 4. OT Colliflower and nurse consultant Schindler declare that "most, if not all," staff had attended a training course in crisis prevention and intervention, and would "attempt to intervene and/or redirect the resident." If that failed, the facility "would monitor or try to sedate" the resident. Colliflower Decl. at � 3(d); Schindler Decl. at � 5(d). Petitioner's witnesses also conclude that "staff did nothing to aid, abet, sanction, tolerate, or instigate assaults." Colliflower Decl. at � 3(a); Schindler Decl. at � 5(a). (20) For summary judgment purposes, I accept that most of the staff attended the 8 to 10 hour training program described in the Colliflower declaration. Colliflower Decl. at � 3(d). However, as the undisputed facts demonstrate, the facility's approach did not prevent serious assaults and injury. Moreover, the facility's efforts here do not even rise to the level of services the Board deemed inadequate in Woodstock. There, a mentally ill resident was often described as "agitated" and "aggressive." He was involved in violent episodes. The facility summarized the treatment they provided for his behavioral problems:
(Citation omitted) Woodstock, DAB No. 1726, at 14. Woodstock staff also intervened by providing one-on-one counseling with redirection, and by notifying the resident's family, changing medications, and allowing the resident to handle his own cigarettes. Id. In contrast here, Petitioner developed no individualized behavior management programs, and provided neither psychiatric nor psychological evaluations. Although Petitioner relied heavily on psychoactive medications to control behavior, it offers no evidence that it carefully monitored the effect of those medications by using behavior flow sheets or by any other method. Petitioner nevertheless justifies its inaction by arguing that the facility "did the best it could under the circumstances," that "nobody possessed the power to predict the events that occurred," and that "the nature of these residents' mental illness made it impracticable for anybody to provide better supervision than the facility actually did." P. Amended Response at 17.
Dr. Braumiller explains "best it could under the circumstances" as a matter of economics. He seems to concede that the absence of a psychiatric presence in the facility, which results in the physician having to rely heavily on staff for information, "is detriment[al]," but blames Medicare and Medicaid reimbursement policies (21) for the facility's denying its residents necessary psychiatric resources.
Braumiller Decl. at 2, � 3. Petitioner also asserts that "a 'PASSAR' (sic) screening by a state agency indicated that these residents were qualified and appropriate for facility placement." P. Amended Response at 4; Colliflower Decl. at � 3(c); Schindler Decl. at � 5(c). PASARR (preadmission screening and annual resident review) screening is required by section 1919(e)(7) of the Act. The designated state agency (usually the state mental health authority) must determine whether the resident requires the level of services provided by a NF, and, if so, whether the individual requires specialized services for mental illness. 42 C.F.R. � 483.112. Neither federal reimbursement practices nor the PASARR screening process relieves the facility of its responsibility to provide its residents all care and services necessary to afford them their highest practicable physical, mental, and psychosocial well-being, including insuring adequate supervision and assistance devices to prevent accidents. Notwithstanding the purported opinions or policies of any outside agency, a facility is charged with limiting its admissions to those residents for whom it is capable of providing that care and those services. Woodstock, DAB No. 1726, at 40-41.
Ultimately, the Braumiller declarations add no additional facts to the case, are difficult to understand, seem to lack coherence, and contain inferences contradicted by the Fretz statements and the medical records. Without specifically relating his opinions to the incidents and individuals discussed here, Dr. Braumiller opines that --
Braumiller Decl. at 1-2, � 2. I find Dr. Braumiller's remarks puzzling. First his opinion does not seem to apply to the residents discussed here. Their medical records show pretty decisively that they could not have been considered "stable" at any time for which records are presented, and neither Dr. Braumiller nor anyone else suggests otherwise. Second, Dr. Braumiller says that an acute exacerbation of symptoms "cannot be seen." While the causes underlying a change in behavior may not be apparent, an exacerbation of symptoms is exactly what can be seen: the normally calm and stable individual suddenly acts out. I agree with Dr. Braumiller that these "exacerbations of symptoms" may be caused by environment or therapeutic drugs, (23) factors over which the facility has control. A facility should therefore pay careful attention to them to determine whether they effect an "exacerbation of symptoms." Hence, a facility might develop medication flow sheets (as Woodstock did) in order to track any relationship between behavior changes and medication. Dr. Braumiller analogizes mental illness to heart disease and opines:
Braumiller Decl. at 3, � 6. I find the analogy to heart disease interesting. A facility may not be able to prevent an individual with severe heart disease from suffering an attack and having to go to the hospital. But that doesn't justify the facility's failure to take appropriate action to prevent the acute episode. In the case of an individual with severe chronic heart disease, I would expect to see evidence that a cardiologist (or comparably qualified physician) examined and treated him. I would expect to see careful monitoring of blood pressure, and cholesterol levels. I would expect the imposition of appropriate diet, exercise, and medication regimes. Notwithstanding the facility's best efforts, the individual may still end up in the emergency room. However, if the facility takes reasonable care and the heart attack happens anyway, the facility is not at fault. On the other hand, if, as here, the facility fails to take reasonable care to address a significant, identified medical condition, it violates 42 C.F.R. � 483.25, whether or not the acute episode occurs. As pointed out in Woodstock:
Woodstock, DAB No. 1726, at 25, quoting 54 Fed. Reg. at 5,332. Thus, under the quality of care regulations, the facility does not have the option of throwing up its hands in despair on the theory that acute episodes are inevitable. Rather, it must provide treatment and services aimed at preventing those episodes.
Nor am I persuaded that "nobody possessed the power to predict the events that occurred." I note first that Administrator Fretz repeatedly opined that, based on the resident's diagnosis "any caretaker would expect" such inappropriate behaviors at times. See, e.g., P. Ex. 6, at 8. Moreover, the Board rejected a similar argument in Woodstock. Faced with facts similar to those presented here, Woodstock argued that "short of being invested with psychic powers or constantly following [him] around," the facility could have done nothing more to prevent the assaults. Woodstock, DAB No. 1726, at 15. The Board found no basis for Woodstock's suggestion, similar to Petitioner's here, that "it must somehow be provided advance warning of each adverse event in order to be responsible for taking reasonable measures to prevent injurious occurrences which it knows to be likely to take place at some point, if not a particular time or place." As the Board observed, not being able to foresee the exact time and place is inherent in the nature of accidents. Where, as here, the record is "replete with documentation warning of the propensities and manifestations that could predict . . . aggression," acute episodes are foreseeable. Woodstock, DAB No. 1726, at 27.
Finally, with respect to the Braumiller declarations, I note unexplained inconsistencies between his assertions and the rest of the medical record. In his initial declaration, Dr. Braumiller is less than precise in describing the particular basis for his opinions. He says that he bases his opinions "upon the information made available to me," which suggests that he learned the facts upon which he bases his opinions from another source, rather than from his own observations and experiences. Braumiller Decl. at 3, � 7. But in the same declaration, he provides a long list of bases for all of his opinions, including declaring himself "generally familiar with the delivery of care to the three residents at issue (Nos. 15, 18, and 32)," and asserting that he relies on "my own knowledge and observations about the residents at issue." Braumiller Decl. at 1, � 1. In his supplemental declaration he goes further and claims:
Braumiller Supp. Decl. at 1, � 3. This claim puts his declaration at odds with the treatment records and statements from Administrator Fretz, which unequivocally establish that Dr. Braumiller neither examined nor treated either R15 or R18. R15 was discharged on April 6, 2001. P. Ex. 5, at 102. The physician signature on his discharge order is illegible, but obviously is not the signature of Dr. Braumiller. Compare P. Ex. 5, at 102 with P. Ex. 5, at 172. R18 was discharged on March 31. P. Ex. 5, at 103. The discharge order was signed by Dr. Jane Broering-Ammons, who apparently was never physically in the facility and never actually saw him. She is the individual referred to by Administrator Fretz as "the new psychiatrist" who signed an agreement on March 15, but "could not physically visit the facility until 5-07-01." P. Ex. 5, at 103; P. Ex. 6, at 106. Both R15 and R18 had been permanently discharged from the facility before Dr. Braumiller even appeared on the scene. P. Ex. 5, at 46, 103; P. Ex. 6, at 71, 107. For summary judgment purposes, I must decide all disputes of fact in favor of the non-moving party. The application of this rule is less clear when the dispute is among Petitioner's own witnesses and evidence. I would have expected Petitioner to resolve any such discrepancies, but Petitioner did not do so here. I am also required to draw all reasonable inferences in the light most favorable to the nonmoving party. But see Lebanon at 2 (" [Arguably] no genuine dispute on the issue of noncompliance would be raised if the facts alleged in the declarations were clearly inconsistent with the residents' treatment records. . . .") Nevertheless, inasmuch as Dr. Braumiller does not allege material facts, I need not resolve these discrepancies. He does not even address, much less dispute, any of the specific facts upon which I base my conclusions. In fact, aside from his general claim of familiarity with the residents (apparently along with the 1,000 patients he sees per year), he does not provide any resident-specific information. His opinions are general conclusions about the nature of mental illness and its treatment. Moreover, as discussed above, even his ultimate conclusion as to the facility's compliance is conditional ("has done an excellent job with the limited resources.") The record here contains ample evidence that the facility knew its residents were at high risk for aggression, and yet did little or nothing to prevent the resulting dangers, repeated assaults, and serious injuries. The undisputed evidence therefore establishes that the facility was out of compliance with the quality of care regulation, 42 C.F.R. � 483.25. (24)
I next consider whether CMS's immediate jeopardy finding was "clearly erroneous." 42 C.F.R. � 498.60(c)(2). Immediate jeopardy exists if the facility's noncompliance has caused or is likely to cause "serious injury, harm, impairment or death to a resident." 42 C.F.R. � 488.301. As noted above, immediate jeopardy can exist regardless of the scope and severity of the deficiency, so long as the deficiency involves a potential for more than minimal harm. Lake City Extended Care Center, DAB No. 1658, at 17 (1998). This record is replete with examples of serious injury and harm to residents caused by the facility's noncompliance. See, e.g., P. Ex. 6, at 45 (R15 punched in the face); P. Ex. 6, at 4, 49 (R15 punched in chest and eye); P. Ex. 6, at 141 (R15 verbally abusive and threatening to an elderly woman); P. Ex. 6, at 50 (R15 pushed resident down to hands and knees and hit on back and arms. Other resident's head was hit.); P. Ex. 6, at 4, 52, 54 (R15 hit resident in face); P. Ex. 1, at 22-23, 45; P. Ex. 5, at 102, 118; P. Ex. 6, at 54 (Altercation with R15 resulting in R19 suffering scratches, abrasions, bruises to head, cut lip); P. Ex. 6, at 5, 59 (R18 slapped in the face); P. Ex. 6, at 6 (R18 hit resident on top of head; R18 pushed resident, who fell); P. Ex. 6, at 67 (R18 punched a resident in the face); P. Ex. 6, at 68 (R18 slapped a wheel-chair bound resident in the face. Hit another resident in the back); P. Ex. 6, at 70 (R18 struck a resident in "numerous body areas."); P. Ex. 6, at 77 (R32 slapped a resident in the face; R32 pushed a resident); P. Ex. 6, at 79 (R32 grabbed resident hair); P. Ex. 6, at 80 (R32 pushed resident to floor, causing laceration that required sutures); P. Ex. 6, at 85 (Male resident punches female resident three times in face). Inasmuch as the facility's deficiencies caused actual harm and had the potential to cause even more serious harm, I do not consider erroneous CMS's finding of immediate jeopardy.
Having found a basis for imposing a CMP, I now consider whether the amount imposed is reasonable, applying the factors listed in 42 C.F.R. � 488.438(f). Emerald Oaks, DAB No. 1800, at 10 (2001); CarePlex of Silver Spring, DAB No. 1683, at 16-17 (1999); Capitol Hill Community Rehabilitation and Specialty Care Center, DAB No. 1629 (1997). In reaching a decision on the reasonableness of the CMP, I may not look into CMS's internal decision-making processes. Instead, I consider whether the evidence presented on the record concerning the relevant regulatory factors supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found and in light of the other factors involved (financial condition, facility history, and culpability). I am neither bound to defer to CMS's factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS's discretion. Community Nursing Home, DAB No. 1807, at 22, et seq.; CarePlex, DAB No. 1638, at 8. For the days it determined the facility's deficiencies posed immediate jeopardy to resident health and safety, CMS imposed a penalty of $4,550 per day, which is at the lower end of the mandatory range ($3,050 to $10,000) for immediate jeopardy situations. For the remaining days of noncompliance, CMS imposed a penalty of $600 per day, which is also at the lower end of the mandatory range ($50 to $3,000 per day). (25) In support of the amount of the CMP, CMS points to the seriousness of the deficiencies, specifically, St. Catherine's foreknowledge that "increasingly violent and dangerous assaults were occurring within the facility and that its institutional resources were inadequate to ensure supervision of some of its residents so as to protect other residents," and to the facility's significant history of non-compliance. CMS Amended MSJ Brief at 8-9. For its part, Petitioner makes no argument as to the reasonableness of the CMP. (26) CMS provides the facility's history profile (Oscar Report) from February 2000. CMS Ex. 22. The document shows that, based on a February 2000 survey, the facility did not meet program requirements, with deficiencies presenting no actual harm but with the potential for more than minimal harm, the most serious constituting a pattern of deficiencies under Tag F-454 (facility designed to protect resident health and safety) and under the Life Safety Code. CMS Ex. 22, at 1. In the year 2000 survey, the facility was not found out of compliance with the quality of care requirements. (27) However, for the survey immediately preceding February 2000, which was performed December 17, 1998, the facility was out of compliance on the quality of care requirements, Tag F-324 (the facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents). The survey found a pattern of noncompliance that resulted in actual harm to facility residents that was not immediate jeopardy (scope and severity level H). That survey also cited H-level deficiencies under Tag F-272 (comprehensive assessments) and G level deficiencies under Tag F-314 (proper treatment to prevent and heal pressure sores). CMS Ex. 22, at 1. The facility thus had a poor compliance history, and had been cited for problems similar to those presented here, had been given opportunities to correct, but, ultimately did not achieve lasting correction. This type of history justifies an increased CMP. With respect to the other � 498.438(f) factors, Petitioner raised no issue as to its financial condition. If a facility contends that its financial condition or some other factor makes a CMP unreasonable, the facility must raise that contention on a timely basis before any question would arise as to CMS's responsibility for producing evidence as to that factor. Community Nursing Home, DAB No. 1807, at 22, et seq.; Emerald Oaks, DAB No. 1800. Where either party fails to take advantage of its opportunity to submit evidence of a facility's financial condition, that opportunity is waived. Community Nursing Home, DAB No. 1807, at 15-16. Applying the remaining factors, I find the deficiencies serious and the facility culpable. These were not isolated instances. The facility displayed a pattern of accepting seriously mentally ill residents with significant behavior problems and failing to provide them with necessary treatment and supervision, resulting in significant injury to themselves and other residents. No psychiatrist visited the facility until after the survey. Even then, the facility only brought one in because the surveyors insisted that "residents be 'physically' seen by a psychiatrist." See P. Ex. 6, at 16, 105-107. I recognize that other deficiencies were cited that were not the subject of this motion for summary judgment. Nevertheless, in this de novo review, I find the above factors - the seriousness of the quality of care deficiencies, the facility culpability, and the facility history - so compelling as to justify the penalties imposed (which are, after all, at the lower end of the mandatory range) notwithstanding the absence of findings on the other deficiencies. V. Conclusion For all of the reasons discussed above, I uphold CMS's determination that from April 11, 2001, until May 2, 2001, the facility was not in substantial compliance with program participation requirements, specifically 42 C.F.R. � 483.25(h)(2). Its deficiencies posed immediate jeopardy to resident health and safety from April 11 through 17, 2001. The amount of the CMP imposed, $4,550 per day for seven days and $600 per day for 15 days, is reasonable. |
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Carolyn Cozad Hughes Administrative Law Judge |
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1. Petitioner mismarked some of the pages of P. Ex. 5 as P. Ex. 4. See P. Ex. 5, at 2-19. 2. In a recent decision, the Sixth Circuit affirmed the agency's citing, under � 483.25(h)(2), deficiencies involving resident-on-resident assaults, but the Court hinted that such assaults might also appropriately be considered abuse. Woodstock Care Center v. Thompson, 2004 FED App. 0095P (6 th Cir.), at 9. 3. Inexplicably, CMS has continued to refer to the pre-IDR Statement of Deficiencies. See CMS Amended MSJ Brief at 3-4. I consider here the facts that relate to the deficiencies as cited post-IDR. See, P. Ex. 1. 4. CMS Ex. 11 appears to be an internal CMS memorandum that discusses the surveyor findings. Petitioner objects to it, in part, because it refers to comments contained in a sheriff's report. Ironically, Petitioner itself has submitted the portion of that report referred to in CMS Ex. 11. See P. Ex. 6, at 87. CMS Exs. 18 and 20 relate to the facility's financial condition. Inasmuch as Petitioner has not raised its financial condition as a factor that makes the amount of the CMP unreasonable, CMS is not required to produce any evidence as to that factor. Community Nursing Home, DAB No. 1807, at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 (2001). 5. I make Findings of Fact and Conclusions of Law (Findings) to support my decision in this case. I set forth each Finding in italics as a separate heading. 6. Petitioner provides no case citation, but I assume that Petitioner refers to the U.S. Supreme Court opinion in Celotex Corporation v. Catrett, 477 U.S. 317 (1986). 7. If Petitioner does not challenge the underlying facts, but asserts that, based on those facts, CMS has not established substantial noncompliance, Petitioner could appropriately have filed its own cross-motion for summary judgment. Even in the absence of such motion, if I determined that no material facts were in dispute and that Petitioner were entitled to judgment as a matter of law, I would enter judgment for Petitioner, rather than conduct an in-person hearing that serves no useful purpose. 8. OT Colliflower asserts that she "was working in the facility before, during and after the survey." Colliflower Decl. at 1, � 1. The source of nurse consultant Schindler's knowledge is murkier. He identifies himself as the Director of Clinical Operations for Strategic Nursing Systems, but does not explain the relationship between Strategic Nursing Systems and Petitioner. Schindler Decl. at 1, � 1. According to OT Colliflower's resume, during the time of the survey, she was also employed by Strategic Nursing Systems (P. Ex. 7, at 2), from which I infer a corporate relationship between Petitioner and Strategic Nursing Systems. 9. In his declarations, Dr. Braumiller neither discusses the specific facts nor refers to the Fretz submissions. 10. Neither party explains Dr. Mount's position in all of this. He may have been medical director, or co-medical director. He was not a psychiatrist. Although the record contains references to staff informing him of resident outbursts, I see no evidence of his actual presence in the facility. 11. As discussed below, Administrator Fretz's implication here - that staff monitoring and early interventions could have defused the resident's escalating behaviors - seems inconsistent with Dr. Braumiller's opinion that the "residents' conditions and mental illnesses manifested themselves in a manner that was unpredictable and unforeseeable, and thus the facility's response to abrupt and unprovoked incidents of assault would necessarily have to be reactive." Braumiller Supp. Decl. at 2, �5. 12. Petitioner submits only partial records, and this note stops mid-sentence, so the record does not disclose the outcome of this incident. 13. Notwithstanding his brother's expressed wishes, the evidence does not suggest, and Petitioner does not claim, that any psychiatrist examined R18 following this incident. R18 apparently did not see a psychiatrist prior to his discharge from the facility on March 31. Indeed, it appears that no psychiatrist examined this severely mentally ill man during this entire period. 14. As discussed in more detail below, Dr. Ammons succeeded Dr. Nockowitz as the facility's attending psychiatrist. She was ultimately replaced by Dr. Braumiller because she, like Dr. Nockowitz, refused to visit the facility. P. Ex. 6, at 16. 15. This is the first time Dr. Braumiller's name appears in the medical records. As discussed in more detail below, the facility only hired Dr. Braumiller on April 13, and he visited the facility for the first time on April 16. P. Ex. 6, at 104. 16. "[T]hat dangerous episodes did not occur daily or even that [facility] staff may have been providing supervision that was effective at times does not counteract the clear evidence in the record as a whole that serious and recurring problems existed before and after periods in which there were no negative outcomes." Woodstock, DAB No. 1726, at 15. 17. CMS provides a CMS document signed by the MDS (Minimum Data Set) Coordinator which shows the number of residents with behavioral symptoms. CMS Ex. 13. See, e.g., P. Ex. 6, at 28-29 for an example of a portion of an MDS form. According to the documents, 64 facility residents were prescribed psychoactive medication, of which 45 were prescribed antipsychotics, 41 antidepressants, and 28 antianxiety drugs. Fifty-two residents were diagnosed with depression, and 28 with dementia. CMS Exs. 13, 22. 18. A minor unexplained detail, April 16 and 17, 2001 fell on Monday and Tuesday, not Tuesday and Wednesday. 19. Dr. Braumiller signed his contract to act as co-medical director on April 23, 2001, almost two weeks after the start of the survey. P. Ex. 5, at 164. According to its terms, it was "anticipated" that he would dedicate approximately eight hours per month in that capacity. P. Ex. 5, at 159. He would be "making monthly visits, making notes on the chart, and reviewing medications." P. Ex. 5, at 177. 20. I note that whether staff "aided, abetted, sanctioned, tolerated, or instigated assaults" is a conclusion and not a fact. 21. In fact, federal law significantly limits reimbursement for services provided to individuals in institutions for mental diseases (IMDs). Medicaid does not reimburse for services to individuals like R15, R18, and R32, who are older than 22 and younger than 65, for services provided in IMDs. Act �� 1905(a)(1), 1905(a) (4), 1905(a)(15), 1905(h)(1). Historically, Congress has considered such financing primarily a state responsibility. See, e.g., S. Rep. 366, 89th Cong. 1 st Sess (1965) (legislative history to Community Mental Health Centers Act, Pub. L. 89-105). Apparently, the State of Ohio does not consider this facility an IMD, notwithstanding its high number of mentally ill residents. 22. Neither Dr. Braumiller nor the facility explains what "treated clinically" means in this context. 23. Elsewhere Dr. Braumiller is even more certain: "The environment at the instant of an episode has a significant effect on what the resident does to manifest the mental disease's presence." Braumiller Supp. Decl. at 2, � 5. 24. I note that if I declined to enter summary judgment here, the parties might nevertheless be left with nothing to do at an in-person hearing. Inasmuch as the parties agree that the relevant incidents occurred, CMS meets its burden of establishing a prima facie case by virtue of the uncontested facts, and need not produce a live witness to establish those facts. On its face, the direct testimony of Petitioner's witnesses fails to overcome that prima facie case, so CMS would have no reason to cross-examine Petitioner's witnesses. Moreover, because of its inconsistencies with the record as a whole, Dr. Braumiller's declarations could be impeached without any cross-examination. 25. Petitioner has not challenged the duration of the penalty. Neither its hearing request nor any of its other submission raise the issue. 26. Nor does Petitioner make any argument as to the reasonableness of the other remedies imposed. A facility may not appeal the choice of remedy, including the factors considered by CMS or the state in selecting the remedy. 42 C.F.R. � 488.408(g)(2). 27. At that time, the facility had significantly fewer residents with behavior symptoms, 30 as opposed to the 45 identified in the April 2001 survey. I find it noteworthy that all 30 had behavior management programs. CMS Ex. 22, at 4. | |