Windsor Post-Acute Care Center of Hayward, DAB CR5115 (2018)

DECISION

Petitioner, Windsor Post-Acute Care Center of Hayward, is a long-term care facility located in Hayward, California, that participates in the Medicare program.  Disregarding a resident’s care plan, one of the facility’s nurse aides attempted to transfer her without adequate assistance.  The resident fell and was subsequently diagnosed with a fractured hip.

Thereafter, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and imposed a civil money penalty (CMP) of $900 per day for 28 days of substantial noncompliance (March 9-April 5, 2016).  Petitioner appealed.  The parties have filed cross-motions for summary judgment.

I grant CMS’s motion and deny Petitioner’s.  The undisputed evidence establishes that, from March 9 through April 5, 2016, the facility was not in substantial compliance with Medicare program requirements; the penalty imposed is reasonable.

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Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys.  Facilities must be surveyed 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.  The state agency must also investigate all complaints.  Act § 1819(g)(4).

Here, responding to a complaint, surveyors from the California Department of Public Health (state agency) conducted a complaint investigation survey, which they completed on March 9, 2016.  CMS Ex. 1.  Based on their findings, CMS determined that the facility was not in substantial compliance with one Medicare participation requirement:  42 C.F.R. § 483.25(h) (Tag F323 – quality of care:  accident prevention) at scope and severity level G (isolated instance of noncompliance that causes actual harm but does not pose immediate jeopardy to resident health and safety).  CMS Ex. 1, 6.

Following a revisit survey, completed on April 6, 2016, CMS determined that the facility returned to substantial compliance on that date.  CMS Ex. 7.

CMS has imposed against the facility a CMP of $900 per day for 28 days of substantial noncompliance (March 9-April 5, 2016), for a total penalty of $25,200.  CMS Ex. 7.

The parties filed pre-hearing briefs (CMS Br.; P.Br.).  With its brief, CMS submitted 12 exhibits (CMS Exs. 1-12).  With its brief, Petitioner submitted three exhibits (P. Exs. 1‑3).  The parties have filed cross-motions for summary judgment (CMS MSJ; P. MSJ).  Petitioner separately filed a statement of additional undisputed facts (P. Facts).  Petitioner also responded to CMS’s motion.  (P. Response).

Issues

As a threshold matter, I consider whether summary judgment is appropriate.

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On the merits, the issues before me are:

• from March 9 through April 5, 2016, was the facility in substantial compliance with 42 C.F.R. § 483.25(h); and

• if the facility was not then in substantial compliance, is the $900 per-day penalty reasonable.

Petitioner also challenges the scope-and-severity determination, which I have no authority to review.  The regulations authorize review of a scope and severity determination if:  (1) a successful challenge would affect the range of the CMP; or (2) CMS has made a finding of substandard quality of care that results in the loss of approval of the facility’s nurse aide training program.  42 C.F.R. §§ 498.3(b)(14), 498.3(d)(10).  Here, the CMP range would not change if I lowered the scope and severity because the penalty CMS imposed is already in the lower of the two CMP ranges.  42 C.F.R. § 488.438(a)(1).  Petitioner has not claimed that it has a nurse aide training program, but, assuming it does, so long as CMS imposes a penalty of $5,000 or more (as it has here) the state cannot approve the program.  So the facility loses its approval without regard to the scope and severity finding.  Act § 1819(f)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv).

Discussion

1. CMS is entitled to summary judgment because the undisputed facts establish that facility staff did not provide one of its residents with the supervision and assistance she needed; the facility was therefore not in substantial compliance with 42 C.F.R. § 483.25(h).1

Summary judgment.  In reviewing the parties’ pre-hearing briefs and exhibits, I found no material facts in dispute.  So, during an April 4, 2018 pre-hearing conference, I called the parties’ attention to Rule 56(f) of the Federal Rules of Civil Procedure and suggested that summary judgment might be appropriate.  In a subsequent written order, I identified material facts not in dispute and, pursuant to Rule 56(f), directed the parties to address whether the case should be decided on summary judgment.  Order Following Pre-hearing Conference (April 5, 2018).  In response, the parties have filed cross-motions for summary judgment.

Summary judgment is appropriate here because the case presents no genuine issue of material fact (as the parties agree), and CMS is entitled to judgment as a matter of law.

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Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986); Ill. Knights Templar Home, DAB No. 2274 at 3‑4 (2009), and cases cited therein.  For its part, Petitioner has tendered no evidence of specific facts showing that a dispute exists.  See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).

Program requirement:  42 C.F.R. § 483.25(h) (Tag F323).  Under the statute and the “quality of care” regulation, each resident must receive, and the facility must provide, the necessary care and services to allow a resident 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.  To achieve this, the regulation mandates, among other requirements, that the facility “ensure” that each resident’s environment remains as free of accident hazards as possible and that each resident receives adequate supervision and assistive devices to prevent accidents.  The facility must therefore eliminate or reduce a known or foreseeable risk of accidents “to the greatest degree practicable.”  Del Rosa Villa, DAB No. 2458 at 7 (2012); Clermont Nursing & Convalescent Ctr., DAB No. 1923 at 9-10 (2004), aff’d Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F. App’x. 900 (6th Cir. 2005); accord, Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007) (holding that the facility must “take all reasonable steps to ensure that a resident receives supervision and assistance devices designed to meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”).  A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an “adequate” level of supervision under all the circumstances.  Briarwood, DAB No. 2115 at 5; Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff’d, Windsor Health Care Ctr. v. Leavitt, 127 F. App’x. 843 (6th Cir. 2005).

Facility noncompliance:  Resident 1 (R1) was a 94-year-old woman, suffering from dementia, muscle weakness, chronic kidney disease, heart failure, osteoarthritis, osteoporosis, and multiple other disorders.  She had a history of falling and a history of fractures.  CMS Ex. 4 at 1-2, 9.  Her care plan identified her as a fall risk.  CMS Ex. 4 at 10, 16; P. Facts at 2, 3.  According to her assessment, she required a “two-[plus] persons physical assist” for transfers, e.g., moving from bed to chair, wheelchair or into a standing position.  CMS Ex. 5 at 7; see CMS Ex. 3 at 2 (stating that the resident “always requires [a] 2-person assist for transfers”), 9, 10; P. Facts at 2, 3; P. Br. at 4 (conceding that staff identified R1 “as a two-person assist” and that “this requirement was well‑known” to facility staff).

Nevertheless, on December 1, 2015, one of the facility’s nurse aides attempted – without additional assistance – to transfer R1 from wheelchair to bed.  The resident fell.  CMS Ex. 3 at 7; CMS Ex. 4 at 5, 8-9; P. Response at 4; see P. Br. at 5 (describing as “errant and aberrant” the nurse aide’s actions).  A couple of days later, R1 complained of lower

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leg pain and staff noted swelling and slight discoloration on her left knee.  An x-ray showed that she had a left hip intertrochanteric (the point where the muscles of the thigh and hip attach) fracture.2 She was transferred to the hospital.  CMS Ex. 4 at 3, 4-5.

The Departmental Appeals Board has long held that a facility violates section 483.25(h) if it fails, without justifiable reason, to implement the accident precautions its own staff have determined are necessary to mitigate foreseeable accident risks.  Good Shepherd Home for the Aged, Inc. d/b/a The Good Shepherd Home, DAB No. 2858 at 14 (2018), citing Del Rosa Villa, DAB No. 2458 at 9, aff’d. Del Rosa Villa v. Sebelius, 546 F. App’x. 666 (9th Cir. 2013); NHC Healthcare, Athens, DAB No. 2258 at 13 (2009); Burton Healthcare Ctr., DAB No. 2051 at 9 (2006).  Petitioner does not explain or justify the nurse aide’s disregard for the explicit instruction that R1 receive a two-person assist for transfers.  To the contrary, Petitioner is highly critical of the nurse aide’s performance, characterizing it as “aberrant.”  P. Br. at 5.

Petitioner argues that the facility should not be held accountable for the nurse aide’s “independent decision – despite the assessments, plans, and records available to her – not to use a two-person assist.”  P. MSJ at 5.  But it is well-settled that a facility “cannot disavow responsibility for the actions of its employees,” through which it acts.  Springhill Senior Residence, DAB No. 2513 at 14 (2013), citing Beverly Health Care Lumberton, DAB Ruling No. 2008-5 (Denial of Petition for Reopening Decision No. 2156) at 6-7 (2008); Emerald Oaks, DAB No. 1800 at 7 n.3 (2001); North Carolina State Veterans Nursing Home, Salisbury, DAB No. 2256 (2009).

Petitioner also claims that R1’s fracture was unrelated to her fall, and, for purposes of summary judgment, I accept this assertion as true, but immaterial.  But see CMS Ex. 4 at 8-9 (“12/1/15 fall during transfer – noted L hip fracture with no displacement and diffuse osteopenia per x-ray done on 12/3/15 . . . .”).  “Whether there was serious harm, or the likelihood thereof is irrelevant to the issue of noncompliance since . . . the potential for more than minimal harm is the basis for finding noncompliance.”  Agape Rehab. of Rock Hill, DAB No. 2411 at 13-14 (2011), citing 42 C.F.R. § 488.301 (emphasis added).  R1 was a 94-year-old woman suffering from osteoporosis.  She had a history of fractures resulting from falls.  In December 2013, for example, she fell and fractured her ribs.  CMS Ex. 4 at 16.  Falling put her at risk for a serious injury, so preventing her from falling was vitally important.  That staff did not provide her with supervision necessary to protect her from falls unquestionably presented the likelihood of more than minimal harm.

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Based on the undisputed facts, the facility was not ensuring that R1 received adequate supervision and assistive devices to prevent accidents and was therefore not in substantial compliance with 42 C.F.R. § 483.25(h).

2. CMS’s determinations as to the duration of the facility’s substantial noncompliance and immediate jeopardy are consistent with statutory and regulatory requirements.

Once a facility has been found to be out of substantial compliance (as Petitioner was here), it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.  Ridgecrest Healthcare Ctr., DAB No. 2493 at 2-3 (2013); Taos Living Ctr., DAB No. 2293 at 20 (2009); Premier Living & Rehab Ctr., DAB No. 2146 at 3 (2008); Lake City Extended Care Ctr., DAB No. 1658 at 12-15 (1998).  The burden is on the facility to prove that it is back in compliance, not on CMS to prove that deficiencies continued to exist.  Asbury Care Ctr. at Johnson City, DAB No. 1815 at 19‑20 (2002).

The facility must show that the incidents of noncompliance have ceased and that it has implemented appropriate measures to ensure that similar incidents will not recur.  Libertywood Nursing Ctr., DAB No. 2433 at 15 (2011), citing Life Care Ctr. of Elizabethton, DAB No. 2367 at 16 (2011); accord, 42 C.F.R. § 488.454(a) and (e); Hermina Traeye Mem’l Nursing Home, DAB No. 1810 at 12 (2002) (holding that, to be found in substantial compliance earlier than the date of the resurvey, the facility must supply documentation “acceptable to CMS” showing that it was in substantial compliance and was capable of remaining in substantial compliance on the earlier date); Cross Creek Health Care Ctr., DAB No. 1665 (1998).  A facility’s return to substantial compliance usually must be established through a resurvey.  42 C.F.R. § 488.454(a); Ridgecrest, DAB No. 2493 at 2-3.

Here, the facility has not met its burden of establishing that it returned to substantial compliance any earlier than the date of the revisit survey.  Its deficiencies were not the type (like a leaky roof or a broken dishwasher) that lend themselves to a quick fix.  In‑service training (which the facility promised), might, if properly implemented, help the facility achieve substantial compliance but, by itself, does not establish substantial compliance.  Until the facility can demonstrate that its training and other interventions were effective, i.e., that staff capably followed the training, that management put effective monitoring tools in place, and that those interventions resolved the problem, the facility has not met its significant burden of demonstrating that it has alleviated the level of threat to resident health and safety.  Oceanside Nursing & Rehab. Ctr., DAB No. 2382 at 19 (2011); Premier Living & Rehab. Ctr, DAB CR1602 (2007), aff’d DAB No. 2146.  This is particularly important for a facility – like Petitioner – that seems to have difficulty maintaining substantial compliance.  As the following discussion shows, the facility was

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repeatedly out of substantial compliance with the quality-of-care regulation; it would apparently correct, but then fall out of substantial compliance once more.

I note, finally, that, although I have no authority to review the timing of the revisit survey, Petitioner can hardly complain about any delays.  42 C.F.R. § 498.3(b); see 42 C.F.R. § 498.3(d)(15).  It promised to complete its corrections on March 24, 2016 (CMS Ex. 1), and the survey team revisited the facility within two weeks, which seems imminently reasonable.

3. The penalties imposed are reasonable. 

To determine whether a civil money penalty is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) factors specified in 42 C.F.R. § 488.404; and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors in 42 C.F.R. § 488.404 include:  (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.

I consider whether the evidence 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 section 488.438(f) factors.  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.  Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1683 at 8 (1999).

Here, CMS imposes a penalty of $900 per day, which is at the low to very low end of the applicable penalty range ($50 to $3,000).  42 C.F.R. §§ 488.408(d)(1)(iii); 488.438(a)(1)(ii).  Considering the relevant factors, these penalties are reasonable.

CMS has come forward with evidence establishing that the facility has a less-than-stellar history, particularly with respect to quality-of-care.  The documents are:  CMS’s CASPER (certification and survey provider enhanced report), which shows the facility’s compliance history (CMS Ex. 9), and a survey report form (CMS-2567) for a survey completed on August 5, 2015 (CMS Ex. 10).  Petitioner has objected to this evidence, citing, generally, hearsay, relevance, and “lack of personal knowledge.”  I consider these objections frivolous.  First, the rules of evidence do not apply in these proceedings.  42 C.F.R. § 498.61.  But even if those rule applied here, records of regularly conducted activity are admissible under the federal rules, as are public records.  Fed. R. Evid. 803.

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But even more important, for purposes of summary judgment, the objections are irrelevant.  To avoid summary judgment on this (or any issue) Petitioner must affirmatively produce admissible evidence showing that a dispute exists.  Matsushita, 475 U.S. at 586 n.11; see also Vandalia Park, DAB No. 1939; Lebanon Nursing & Rehab. Ctr., DAB No. 1918.  Petitioner may not simply rely on denials, but must furnish admissible evidence of a dispute.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  Here, Petitioner does not even argue, much less present any evidence, suggesting that it disputes the earlier survey findings.

The undisputed evidence thus establishes that, during its annual survey, completed May 27, 2015, the facility was out of substantial compliance with 42 C.F.R. § 483.25(h) (Tag F323).  And it had a second quality-of care deficiency, 42 C.F.R. § 483.25 (Tag F309), at scope and severity level G, which meant that the deficiency caused actual harm.  Nor were those its only deficiencies.  It was out of substantial compliance with 42 C.F.R. § 483.20(k)(3)(i) (Tag F281), which requires that resident assessments meet professional standards of quality.  Its deficiencies under food services – 42 C.F.R. § 483.35(h)(2) (Tag F371) – and pharmaceutical services – 42 C.F.R. § 483.60 (Tag F425) – were widespread, cited at scope and severity level E.  The facility was also out of substantial compliance with 42 C.F.R. §§ 483.55 (Tag F411 – dental services); 483.70(d) (Tag F461—physical environment); and 42 C.F.R. § 483.75(o) – quality assessment and assurance).  CMS Ex. 9.

Another survey was completed on August 5, 2015.  The facility again was not in substantial compliance with the quality-of-care regulation, 42 C.F.R. § 483.25(h) (Tag F323), and that deficiency caused actual harm (scope and severity level G).  CMS Ex. 10.

The facility’s history alone justifies imposing CMPs that are substantially greater than the minimum, particularly in light of the facility’s erratic compliance with the quality-of-care regulation.  See H.R. Rep. No. 100-391(I), 100th Cong., 1st Sess. (1987) (expressing the goal of eliminating the “yo-yo” or “roller coaster” phenomenon); Florida Agency for Health Care Admin, v. Bayou Shores SNF, LLC, 2016 WL 3675462 at 19 (11th Cir. July 11, 2016); Heartland Manor at Carriage Town, DAB No. 1664 (1998).

Petitioner does not claim that its financial condition affects its ability to pay the CMP.

With respect to the remaining factors, I consider the deficiency here serious, regardless of whether R1’s fall directly caused her hip fracture.  For this elderly and infirm population, failing to prevent falls can have severe, even fatal, consequences.  Yet facility staff disregarded the resident’s identified need for a two-person assist.  For this, the facility is culpable and the penalties imposed are reasonable.

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Conclusion

For all of these reasons, I find that, from March 9 through April 5, 2016, the facility was not in substantial compliance with Medicare program requirements, and the penalty imposed – $ 900 per day for 28 days of substantial noncompliance – is reasonable.

1. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
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2. Petitioner disputes that the fall caused R1’s fracture.  As discussed below, even accepting this as true, for purposes of summary judgment, it is not material.
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