Sterling Place, LLC, DAB CR5796 (2021)

DECISION

Sterling Place, LLC (Petitioner or "the facility"), a skilled nursing facility (SNF) located in Baton Rouge, Louisiana, challenges the determination by the Centers for Medicare & Medicaid Services (CMS) to impose a per‑instance civil monetary penalty (CMP) of $10,000 based on Petitioner's noncompliance with Medicare participation requirements.  For the reasons discussed below, I find that there is no dispute as to any material fact and CMS is entitled to judgment as a matter of law.  The facility was not in substantial compliance with the Medicare program requirements and the CMP imposed is reasonable.

I.  Background

The Social Security Act (Act) establishes requirements for SNF participation in the Medicare program and authorizes the Secretary of Health and Human Services ("the Secretary") to promulgate regulations implementing those statutory provisions.  See 42 U.S.C. § 1395i-3; 42 C.F.R. pts. 483 and 488.  To participate in the Medicare program, SNFs must maintain substantial compliance with program participation requirements.  In order to be in substantial compliance, any cited deficiencies may "pose no greater risk to resident health or safety than the potential for causing minimal harm."

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42 C.F.R. § 488.301.  "Noncompliance" means "any deficiency that causes a facility to not be in substantial compliance."  Id.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with participation requirements.  42 U.S.C. § 1395aa(a); 42 C.F.R. §§ 488.10, 488.20.  The Act and its implementing regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  42 U.S.C. § 1395i‑3(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  CMS may impose a per-day CMP for the number of days an SNF is not in substantial compliance, or a per-instance CMP for each instance of the SNF's noncompliance.  42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. § 488.430(a).

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge (ALJ) to challenge the noncompliance finding and enforcement remedy.  42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

A surveyor from the Louisiana State Department of Health and Hospitals, Health Standards Section (state agency), completed a complaint investigation on December 15, 2017, and determined that Petitioner was not in substantial compliance with Medicare program participation requirements.  CMS Exs. 4; 9 at 1 (surveyor's testimony).1

In a letter dated January 12, 2018, CMS notified Petitioner that, based on the December 2017 survey, it was not in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2) (Tag F689).2  CMS cited this deficiency at the "G" level of scope and severity3 and imposed a $10,000 PICMP.  CMS Ex. 3 at 1.

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Petitioner, through counsel, timely requested a hearing on March 5, 2018.  CMS filed a pre-hearing brief and motion for summary judgment (CMS Br.) and 10 proposed exhibits (CMS Exs. 1-10), and Petitioner filed a brief and response in opposition to CMS's motion for summary judgment (P. Br.) and 10 proposed exhibits (P. Exs. 1-10).

Because I am granting CMS's motion for summary judgment, an oral hearing is unnecessary to allow the parties an opportunity to cross-examine witnesses.  Further, because I grant CMS's motion for summary judgment, I need not rule on CMS's objections to the written direct testimony submitted by Petitioner.

II.  Issues

The issues presented are:

Whether summary judgment is appropriate;

Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2); and,

Whether a per-instance CMP of $10,000 is reasonable.

III.  Discussion4

A.  Summary judgment is appropriate because material facts are not in dispute.

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010), aff'd sub nom. Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F. App'x 820 (5th Cir. 2010); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).  The moving party must show that there are no genuine disputes of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law.  Anderson, 477 U.S. at 248.  If the moving party meets its initial burden, the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial.'"

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis omitted).  "To defeat an adequately supported summary judgment motion, the non‑moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact -- a fact that, if proven, would affect the outcome of the case under governing law."  Senior Rehab., DAB No. 2300 at 3.  In determining whether there are genuine issues of material fact for hearing, an ALJ must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor.  Id.

It is well established that an ALJ is empowered to decide a case on a motion for summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 n.25 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep't of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep't of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010) ("All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing."  (emphasis added)); Crestview Parke Care Ctr., 373 F.3d 743, 748-50 (6th Cir. 2004) (explaining that "[t]he statute authorizing the imposition of penalties . . . requires . . . a hearing 'on the record'" and that the use of summary judgment is "valid" and "provides an alternative to in-person, oral hearings.").

The material facts establishing Petitioner's noncompliance with 42 C.F.R. § 483.25(d) are not disputed.  Although Petitioner generally disputes the finding of noncompliance, it does not present evidence disputing the material facts that underlie its noncompliance with section 483.25(d) (i.e., that Resident # 3 "frequently placed himself on the floor mat next to his bed"; while Resident # 3 was alone in his room, an unanchored dresser that held an unanchored television fell on him, and the television came to rest next to his head; and, Resident # 3 was hospitalized as a result of his injuries).  There is no genuine dispute as to any material fact that requires a hearing, and summary judgment in CMS's favor is warranted.

Resident # 3

Resident # 3, a man who was born in 1937, was admitted to the facility in April 2016.  P. Ex. 7 at 2.  Resident # 3's numerous active diagnoses included, but were not limited to, dementia, conduct disorder, major depressive disorder, abnormalities of gait and mobility, lack of coordination, chronic obstructive pulmonary disease, and heart failure.  P. Ex. 7 at 2-4.

Petitioner submitted evidence that it implemented a care plan for Resident # 3 in furtherance of a stated goal of reducing the number of "episodes of aggressive behavior."  P. Ex. 7 at 6-8, 10-11.  On October 4, 2017, Resident # 3 "was accused of pulling another resident[']s arm on the smokers['] patio," and on October 15, 2017, he "punched and slapped another resident and accused her of stealing" his money.  P. Ex. 7 at 10-11.  On

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October 23, 2017, Resident # 3 "had a fire extinguisher and attempted to hit the nurse" when he wasn't given a cigarette.  P. Ex. 7 at 7.  On October 30, 2017, Resident # 3 "placed himself on the floor multiple times during the night because he wanted to go smoke."  P. Ex. 7 at 8.  Thereafter, on November 8, 2017, Resident # 3 refused peri-care, at which time he "attempt[ed] to strike staff" when he "grabbed [a] bedside table and attempted to pick it up and shove it at [a] nurse."  P. Ex. 7 at 6 (capitalization omitted); but see P. Ex. 7 at 33 (departmental note5 reporting that Resident # 3 "shoved" the bedside table at the nurse).6   On November 13, 2017, Resident # 3 "placed himself on [a] mattress [on the floor] all night."  P. Ex. 7 at 8.

According to a January 26, 20187 late entry reporting a November 16, 2017 care plan meeting, "resident reviewed today . . . due to resident['s] repeated behaviors of getting on the floor."  P. Ex. 3 at 2 (capitalization omitted).  The entry reported that Resident # 3 "was placed on the mattress after the meeting," but the "attempt was unsuccessful [because he] struggled on the mattress[,] yelled out[,] placed legs over elevation to get out and eventually crawled out the end and got right back on the floor."  P. Ex. 3 at 2.  The entry reported that staff placed a fall mat on the floor.  P. Ex. 3 at 2.

An October 31, 2017 Minimum Data Set assessment reports that Resident # 3 had bilateral lower extremity impairment and used a wheelchair for mobility.  P. Ex. 7 at 46.  A functional status assessment of Resident # 3's upper extremities (shoulder, elbow, wrist, hand) reported no impairment that caused functional limitation in range of motion that interfered with daily functions or placed him at risk of injury.  P. Ex. 7 at 46.

Departmental notes report episodes consistent with the aforementioned care plan entries.  On October 3, 2017, Resident # 3 "became irate and upset when he was told he was out of cigarettes," and "then came into the nurses station and pulled [a] chart cart down because he was upset."  P. Ex. 7 at 39.  A November 13, 2017 entry documented that the night shift nurse reported that Resident # 3 had remained on a mattress on his floor the previous night and "when they put him in bed he rolls on to the floor."8   P. Ex. 7 at 25.  A November 15, 2017 entry reports that Resident # 3 was on his mattress on the floor.  P. Ex. 7 at 24.  Departmental notes report that hours later, Resident # 3 remained on the

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floor until his daughter asked that he be returned to his bed.  P. Ex. 7 at 24.  Staff documented that the "mattress continues on floor beside bed so if he rolls out he [won't] hurt hi[m]self."  P. Ex. 7 at 24 (capitalization omitted).

A November 16, 2017 departmental note indicates that staff placed a floor mat next to Resident # 3's bed.  P. Ex. 7 at 24.  When Resident # 3's daughter visited on November 18, 2017, she discovered him on the fall mat at his bedside.  P. Ex. 7 at 23.  Petitioner treated this incident as an unwitnessed fall.  P. Ex. 7 at 23.

On November 24, 2017, Petitioner's staff documented that Resident # 3 "keeps getting on the floor from bed" and "is on mattress on floor."  P. Ex. 7 at 21 (capitalization omitted).  A subsequent note reports that Resident # 3 "was put back on mattress several times today."  P. Ex. 7 at 21 (capitalization omitted).  The next day, on November 25, 2017, staff again reported that Resident # 3 was on the floor, documenting that he "was noted on his room floor banging, pulling and scre[a]ming."  P. Ex. 7 at 21.  Staff observed a skin tear at that time.  P. Ex. 7 at 21.

The November 30, 2017 Incident

On November 30, 2017, Resident # 3's daughter reported to staff that she had found him on the floor.  P. Ex. 7 at 20.  A departmental note entered at 7:54 pm that evening reports the following:

STAFF NOTED RES[IDENT] LYING ON FLOOR ON HIS BACK IN ROOM WITH DRESSER TURNED OVER ON HIM AND T.V. NEXT TO HIS HEAD ON THE FLOOR.  MODERATE BLEEDING NOTED TO FOREHEAD WITH HEMATOMA/LACERATION, ALSO A SKIN TEAR TO LEFT FOREARM AND ABRASION TO RT KNEE.  BLEEDING CEASED AS TOWELS APPLIED.  RES[IDENT] IS ORIENT[ED] TO NAME ONLY WITH CONFUSION DAILY AND IS UNABLE TO EXPLAIN WHAT HAPPENED.

P. Ex. 7 at 20 (capitalization in original).  The Director of Nursing (DON), Sharron Walker, RN, submitted the following undated handwritten statement:

I was leaving the facility for the day and [Resident # 3's daughter] came down to the nurses station and stated her Dad was on the floor.  I went to the room the resident was on the floor with dresser on top of him.  TV was face down on the left side above his head.  Ms. Webster LPN assisted with standing the dresser up.  Evelyn Perkins pushed draw[ers] in.  Evelyn Perkins and Serenna Webster assisted with [vital signs].  Evelyn phoned EMS as soon as dresser was off resident.  Resident was able to speak and

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move his legs and arms.  EMS present.  First aid rendered.  Resident transported with daughter to follow.

CMS Ex. 7 at 23.

A transfer summary completed at 6:32 pm on November 30, 2017, indicates that Resident # 3 had a large hematoma on the left side of his forehead, along with bleeding.  P. Ex. 7 at 53.  A radiological report captioned as an "ED Record" listed findings that included minimal traumatic fracture of the left low frontal bone extending through the inner and outer table of frontal sinus, orbital roof/medial orbital wall, that extends through the left inferior orbital rim and anterior wall maxillary sinus, along with adjacent fractures of nasal bones.  CMS Ex. 7 at 49.  Although there was no definite evidence of intracranial hemorrhage, minimal trace subarachnoid hemorrhage in the left mid frontal region could not be excluded.  CMS Ex. 7 at 49.  At approximately 11:00 pm on December 11, 2017, the hospital informed Petitioner that Resident # 3 had expired.  CMS Ex. 4 at 6; see P. Ex. 7 at 2.

According to Petitioner, the dresser that fell on Resident # 3 "is a standard piece of free standing furniture" that "has been continuously in service since 1999 and stands only 37" high."  P. Br. at 3; see P. Ex. 2 at 5.  Petitioner explained that "[t]here are similar dressers located in other rooms throughout the Facility which have also been in service for many years without similar incidents."  P. Br. at 3.  Petitioner reported that televisions in resident rooms were provided by residents or their families.  P. Br. at 3.

Petitioner submitted a Consumer Product Safety Commission (CPSC) report, Product Instability or Tip-Over Injuries and Fatalities Associated with Televisions, Furniture, and Appliances: 2017 Report.  P. Ex. 5.  The CPSC reported that 19,500 people are typically injured per year in accidents involving product instability or furniture tip-overs, and another 10,100 are typically injured per year in accidents involving falling televisions (to include televisions that fall in combination with furniture).  P. Ex. 5 at 2.  Further, between 2000 and 2016, there were 332 reported fatalities involving fallen televisions, with less than half of those instances involving furniture, as well.  P. Ex. 5 at 2.  As alluded to by Petitioner, the report addressed the risk of injuries to several age cohorts, particularly children; for example, and as will be discussed later in this decision, the CPSC reported that one-year-old children, on average, sustain 800 injuries per year involving fallen televisions (to include fallen furniture) and 1,700 injuries per year due to product instability or furniture tip-over.  P. Ex. 5 at 8; see P. Br. at 9 n.18 (discussing that the CPSC's "Anchor It" program focused on product instability and tip-over injuries with respect to children).  As for seniors (defined as age 60 or older), the CPSC reported that 3,600 seniors require emergency-department treatment each year for injuries caused by product instability or tip-overs of televisions, furniture, and appliances, with more than half of those injuries involving televisions and/or furniture.  P. Ex. 5 at 7.  Although the child cohort sustained, by far, the largest number of fatalities between 2000 and 2016

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(431 deaths), the CPSC reported that 39 seniors died as a result of accidents caused by product instability or tip-over during the same time period.  P. Ex. 5 at 16.  The CPSC explained that tip-over incidents "concern heavy objects that fall on an individual due to some type of interaction, such as climbing or exerting a force on the object while it is in one of its positions of normal use," and the "[normal] interaction with the product results in the center of gravity of the product changing" such that when the product falls on the individual "the injuries are typically crushing or compressing in nature."  P. Ex. 5 at 27.

The DON, Ms. Walker, submitted written direct testimony that "Resident #3 frequently placed himself on the floor mat next to his bed, because he preferred the floor mat especially when he wanted to smoke and could not."  P. Ex. 8 at 1 (footnote omitted).  Ms. Walker stated that "[e]ach time staff left his room, Resident #3 was free to remove himself from his bed to the floor mat, which he often did."  P. Ex. 8 at 2.  Ms. Walker further remarked that "[t]here was no reason for the staff to recognize any hazard from the television and dresser due to his placing himself on the floor mat across his room."  P. Ex. 8 at 2.  Ms. Walker also explained:

The dresser was located across the room from the bed and floor mat and there was no apparent danger from Resident #3's presence on the floor mat in front of his bed.  No staff member ever noted Resident #3 crossing the room and pulling on the dresser and television.  The staff never made a connection between Resident #3's behavior of placing himself on the floor mat and any danger from the television on the dresser.  The staff had no reason to expect that Resident #3 had sufficient strength and functional level to hold on to and pull the dresser and television on top of him or that he would do so.  There was no similar incident at the Facility with Resident #3 or any other resident.

P. Ex. 8 at 2.  Ms. Walker concluded that "there is nothing in the accident history of Resident #3 or any other resident to alert the Facility to the hazard presented to Resident #3 by his television on the dresser in his room and to cause the Facility to eliminate it."  P. Ex. 8 at 3.

Assistant Director of Nursing (ADON) Evelyn Perkins provided similar testimony to Ms. Walker, with verbatim or nearly verbatim repetition of some of Ms. Walker's statements.  P. Ex. 9.

Administrator Terry Anderson provided written direct testimony, stating, in part, that "[t]he staff never made a connection between Resident #3's behavior of placing himself on the floor and any danger from the television on the dresser, even though the behavior was discussed by the staff and various interventions were tried to keep Resident #3 in his bed."  P. Ex. 10 at 1.

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B. Petitioner has not raised a genuine dispute of fact that it failed to maintain an environment as free of accident hazards as is possible and provide adequate supervision to protect Resident # 3 from foreseeable risks of harm, and therefore, was not in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2).

Subsection 483.25(d) is part of the quality of care regulation at 42 C.F.R. § 483.25, which states that "[q]uality of care is a fundamental principle that applies to all treatment and care provided to facility residents."  Subsection 483.25(d) imposes specific obligations upon a facility related to accident hazards and accidents, as follows:  The facility must ensure that —

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

42 C.F.R. § 483.25(d)(1), (2).

The Departmental Appeals Board (DAB) has held that subsection 483.25(d)(1)9 requires that a facility address foreseeable risks of harm from accidents "by identifying and removing hazards, where possible, or, where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible."  Maine Veterans' Home - Scarborough, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care in section 483.25(h)(1)); see Bridge at Rockwood, DAB No. 2954 at 10 (2019) ("The correct question is whether the facility did what it reasonably could to ensure that all residents received supervision needed to 'mitigate foreseeable risks of harm' based on what it knew about the residents, their care needs, and the conditions in the facility.").  The provisions of section 483.25(d) "come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm."  Meridian Nursing Ctr., DAB No. 2265 at 10 (2009), aff'd sub nom. Fal‑Meridian, Inc. v. U.S. Dep't of Health & Human Servs., 604 F.3d 445 (7th Cir. 2010).  The DAB has held that subsection 483.25(d)(2) requires that a facility take "all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents."  Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 589 (6th Cir. 2003) (facility must take "all reasonable

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precautions against residents' accidents"), aff'g Woodstock Care Ctr., DAB No. 1726 (2000)).  Facilities are given "the flexibility to choose the methods" they use to provide supervision or assistive devices to prevent accidents, so long as the chosen methods constitute an "adequate" level of supervision for a particular resident's needs.  Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff'd sub nom. Windsor Health Ctr. v. Leavitt, 127 F. App'x 843 (6th Cir. 2005).

Analysis

Petitioner acknowledges that, "Prior to the Incident, the Departmental notes show that Resident #3 frequently placed himself on the floor mat next to his bed, because he preferred the floor mat when he wanted to smoke and could not."  P. Br. at 9 (footnotes omitted); see P. Exs. 3 at 2; 7 at 6, 8, 21, 23-26 (care plan and departmental notes documenting instances when Resident # 3 was on the floor of his room); see also P. Ex. 8 at 1 (testimony of DON that Resident # 3 "would intentionally place himself on the floor mat"); P. Ex. 9 at 2 (testimony of ADON that Resident # 3 "intentionally place himself [sic] on the floor mat"); P. Ex. 10 at 1 (testimony of Administrator that "staff never made a connection between Resident #3's behavior of placing himself on the floor mat and any danger from the television on the dresser").  It is an undisputed fact that Resident # 3 regularly placed himself on the floor of his room and Petitioner was aware that he did so.

Petitioner argues, "The evidence will demonstrate that Resident No. 3 was found on 11/30/17, lying on the floor on his back with a dresser on top of him and the television next to his head."  P. Br. at 2.  Petitioner further claims, "Under these circumstances, the dresser and television became an overwhelming external force as they tipped over pushing him down onto his back."  P. Br. at 2 (underline omitted); see P. Ex. 7 at 20 (Petitioner's November 30, 2017 entry that Resident # 3 had been found on his back with a dresser turned over on him and his television next to his head); CMS Ex. 7 at 23 (contemporaneous statement of Ms. Walker that she "went to the room the resident was on the floor with dresser on top of him" and the "TV was face down on the left side above his head").  It is undisputed that, on November 30, 2017, Resident # 3 was found alone in his room with a dresser on top of him and a television next to his head.

Petitioner also acknowledges that Resident # 3 "pulled" the dresser and television over.  Request for Hearing Statement of Issues and Matters for Appeal at 4 (reporting that "the fall was caused by the 'overwhelming external force' of the dresser and television pulled over by the resident falling on top of him."); P. Br. at 10 ("The Incident was caused by a 'risk' or 'hazard' in the environment.  The 'risk' or 'hazard' was created by the combination of his personal television being placed on top of the dresser by his family and then Resident #3 pulling the television and dresser over on top of him.").  It is an undisputed fact that Resident # 3 pulled the dresser that had a television on top of it, and that both fell to the ground, with the dresser landing atop Resident # 3.

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Although Petitioner reports it did not own the television that fell during the incident, it does not dispute that the dresser that fell on Resident # 3 belonged to the facility.  P. Br. at 10-11 ("The dresser has been continuously in service for more than 16 years and stands only 37" high.  There are similar dressers located in other rooms throughout the Facility which have also been in service for many years without a single incident.").  Petitioner also does not dispute that the dresser and television had not been anchored to the wall.  P. Br. at 13-14; see CMS Br. at 10.

CMS reported that Resident # 3 sustained injuries as a result of the November 30, 2017 incident.  CMS Ex. 4 at 1-2; CMS Br. at 5-6.  Petitioner has not submitted evidence to refute that Resident # 3 sustained injuries at that time, and therefore, this fact is undisputed.  See P. Ex. 7 at 20 (November 30, 2017 entry that Resident # 3 was bleeding from the left forehead area and that a hematoma was noted to the front and back of the head); see CMS Ex. 7 at 23 (DON's handwritten statement that EMS transported Resident # 3 to the hospital); CMS Ex. 7 at 48-51 (radiology report documenting facial fractures).

In summary, the following facts are undisputed:  Resident # 3 regularly placed himself on the floor and Petitioner was aware that he did so; while alone in his room, Resident # 3 pulled an unanchored dresser that held an unanchored television; the dresser in Resident # 3's room toppled on top of him and the television that had been on the dresser was found next to his head; and, Resident # 3 sustained injuries that required hospitalization.  The question is therefore whether, based on these undisputed facts, Petitioner complied with the Medicare requirements that it maintain a resident environment that is as free of accident hazards as is possible and that residents receive adequate supervision and assistance devices to prevent accidents.  42 C.F.R. § 483.25(d)(1),(2).

CMS argues that "Resident 3 was regularly found out of his bed lying on the floor, and any reasonable person could assume that left there long enough, he would likely attempt to pull himself up in order to use the bathroom or otherwise ambulate."  CMS Br. at 9-10.  CMS further argues that "the facility took no reasonable preventative measure to ensure [Resident # 3's] safety," and that the "dresser and television were not secured to the wall."  CMS Br. at 10.  CMS also contends that "when the facility had repeatedly found Resident 3 on the floor in his room, a simple, obvious, and reasonable solution would be to increase observation on the resident to ensure his safety."  CMS Br. at 10.

Petitioner argues, in pertinent part, that "the clinical record does not support a finding that the clinical condition of Resident #3 should have alerted the Facility's staff that Resident #3 had sufficient strength and functional level to hold on to and pull the dresser and

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television on top of him."10   P. Br. at 9.  Along those lines, Petitioner argues there "was no hazard presented by the condition of the room or furnishings the Facility provided."  P. Br. at 11 (underline omitted).  Petitioner argues the incident was "unavoidable," "could not have been prevented by an intervention," "could not have been prevented by supervision," and was an "'unavoidable accident.'"  P. Br. at 12-13 (underline omitted).

The DAB "has repeatedly held that section 483.25(d) obligates a facility to take "all reasonable steps to ensure that a resident receives supervision and assistive devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents."  Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017) (citing Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007) (citing Woodstock Care Ctr., 363 F.3d 583, 590 (6th Cir. 2003), affirming Woodstock Care Ctr., DAB No. 1726 (2000)).  The DAB has also explained:

For a risk to be foreseeable, it need not have been made obvious by having already materialized.  The regulation speaks in terms of ensuring that what is "practicable" and "possible" to do is done.  What is thus required of facilities is not prescience but reason and professional judgment in assessing what can be done to make residents (given their special needs) safe, through removing accident hazards, providing appropriate devices, and ensuring adequate supervision.

Josephine Sunset Home, DAB No. 1908 at 14-15 (2004).

Petitioner did not take all reasonable steps to prevent a foreseeable injury.  Resident # 3 was alone at the time he was found pinned under his dresser.  P. Ex. 7 at 8, 20.  Petitioner was unquestionably aware that Resident # 3 spent much time on the floor, and Petitioner has not submitted any evidence that it assessed the safety of such an atypical resident environment.  See P. Ex. 7 at 8 (care plan interventions for the "problem/need" of Resident # 3 placing himself on the floor).  Common sense dictates that a person who spends a significant amount of time on the floor, particularly someone with dementia, may face safety risks that are unique to that environment, such as being struck by falling objects, bumping into hard or sharp objects, and potential entanglement with items such as power cords.  Further, common sense also dictates that objects that ordinarily pose little or no risk for serious injury can pose a significant risk for serious injury, being that an object can strike the head of a resident who is on the floor.

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Further, despite the care plan approach that Resident # 3 should be placed in an area "where observation is possible" when he places himself on the floor, Petitioner has not submitted evidence that it actually put Resident # 3 under observation during these episodes.  P. Ex. 7 at 8.  This is noteworthy because Petitioner associated Resident # 3's behavior of placing himself on the floor with the goal that he "will have less episodes of aggression."  P. Ex. 7 at 8.  The evidence does not indicate that Petitioner placed Resident # 3 under observation when he was on the floor, nor did it develop and implement other measures to ensure his safety when he placed himself on the floor.

Petitioner argues that the "clinical record does not support a finding that the clinical condition of Resident #3 should have alerted the Facility's staff that Resident # 3 had sufficient strength and functional level to hold on to and pull the dresser and television on top of him."  P. Br. at 9.  However, Petitioner fails to cite to any evidence that it assessed whether Resident # 3 had sufficient strength or function to hold or pull on objects from his frequent position on the floor.  Petitioner further argues that Resident # 3 was unable to stand on his own, "had not walked in his room or corridor," and needed "extensive assistance with bed mobility."  P. Br. at 9.  Evidence that Resident # 3 was unable to stand or ambulate independently does not support a lack of risk; rather, such evidence could suggest a greater likelihood that Resident # 3 would use furniture or other objects to assist when attempting a self-transfer from the floor.11

Further, although Petitioner had no reason to believe Resident # 3 had the functional ability to hold on to and pull a dresser, Petitioner has not submitted evidence to support how it made such an assessment.  In fact, evidence submitted by Petitioner indicates otherwise.  The MDS assessed that Resident # 3 had no impairment in range of motion of his upper extremities.  P. Ex. 7 at 46.  Further, Resident # 3's episodes of aggression repeatedly evidence his physical capabilities.  On October 3, 2017, Resident # 3 pulled down a chart cart.  P. Ex. 7 at 39.  On October 16, 2017, Resident # 3 punched and slapped another resident.  P. Ex. 7 at 37.  A week later, on October 23, 2017, Resident # 3 attempted to hit a nurse in the face.  P. Ex. 7 at 36.  The next day, on October 24, 2017, Resident # 3 attempted to hit a nurse with a fire extinguisher.  P. Ex. 7 at 36.  And on November 8, 2017, Resident # 3 "grabbed a bedside table and attempted to pick it up and shoved it at [a] nurse."  P. Ex. 7 at 33.  Based on Resident # 3's documented ability to slap, punch, pick up a fire extinguisher, shove a bedside table, and pull down a chart cart, Petitioner has not factually supported its claim that it could not have known that Resident # 3 lacked the functional ability to hold and pull on a 37" dresser.

Further, Petitioner has submitted the aforementioned CPSC report summarizing product instability and tip-over injuries as evidence that the CPSC's "Anchor It" Campaign "was 'directed at children' and this 'only was an emerging area for adults and not publicized as a problem.'"  P. Br. at 9 n.18; see P. Ex. 5 at 3.  However, the CPSC report is otherwise

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not supportive of Petitioner's position, in that by detailing thousands of injuries and hundreds of fatalities, it makes clear that neither strength nor functional ability is necessarily required to topple furniture; in fact, the report undermines Petitioner's claim that there was "no reasonable probability that [Resident # 3] had sufficient strength to stand and/or pull the dresser over and on top of himself."  P. Br. at 9.  For example, the CPSC documented that one-year old children suffered, on average each year, 2,500 injuries requiring emergency department treatment due to television and furniture instability or tip-over, and that more than 100 one-year old children had died between 2000-2016 by accidents involving product instability or tip-over.  P. Ex. 5 at 8, 17.  Although Resident # 3 was of advanced age, the CPSC report demonstrates that even a one-year-old child may have the strength to cause an injury or fatality from product instability or tip-over.12

Petitioner argues that it had no notice of the hazard that would prompt it to anchor dressers and televisions, and "no dresser or other piece of furniture has ever fallen over and injured a resident."  P. Br. at 11.  The issue here is not whether Petitioner was required to anchor all dressers and televisions throughout the facility; rather, the issue is whether Petitioner took sufficient steps to prevent an accident involving Resident # 3, a resident with dementia who had experienced episodes of aggression, and who was known to spend a significant amount of time on the floor.  Resident # 3's insistence on placing himself on the floor is an atypical circumstance, as evidenced, in part, by his daughter's repeated requests that staff remove him from the floor.  See P. Ex. 7 at 25 (November 13, 2017 entry that Resident # 3's daughter "wants her dad put in the bed . . . [and later] agreed to let her dad stay on mattress on floor"); 24 ("November 15, 2017 entry that Resident #  3's daughter "insisted that resident be put back in bed.").  I consider whether Resident # 3's environment was as free of accident hazards as is possible and he received the supervision and assistance devices to prevent accidents.  Resident # 3, who was allowed to remain on the floor of his room without supervision, was found pinned under his dresser with a television alongside his head.  The record lacks any evidence that Petitioner assessed whether any measures, other than observation, should be implemented to ensure that Resident # 3 was safe when he remained on the floor.  Although there is no participation requirement that Petitioner anchor all furniture and televisions, Petitioner could have anchored Resident # 3's dresser and television to address the risk posed by his placing himself on the floor during episodes of aggression, particularly because Petitioner left him unsupervised on these occasions.  Petitioner did not take all reasonable steps necessary to prevent a foreseeable risk of harm from an accident.

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C. A per-instance CMP of $10,000 is a reasonable enforcement remedy for Petitioner's noncompliance with 42 C.F.R. § 483.25(d).

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, including a per-instance CMP.  In determining whether the per-instance CMP amount imposed against Petitioner is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f).  42 C.F.R. § 488.438(e)(3).  These factors include:  (1) the facility's history of noncompliance; (2) the facility's financial condition; (3) the factors specified at 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.  42 C.F.R. § 488.438(f).  The absence of culpability is not a mitigating factor.  Id.  The factors at 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 above 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.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002).  Unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002).

At the time of the survey, the baseline per-instance CMP range was from $1,000 to $10,000 prior to adjustment for inflation.  42 C.F.R. § 488.438(a)(2).  With inflation adjustment, the CMP range at the time of the survey was $2,097 to $20,965.  42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3; 82 Fed. Reg. 9174, 9182 (Feb. 3, 2017) (setting 2017 inflation adjustments).  CMS imposed a CMP of $10,000 for the noncompliance with 42 C.F.R. § 483.25(d), which falls in the middle of the per-instance penalty range.

Petitioner has not argued that the CMP is unreasonable based on application of any of the regulatory factors listed above.  Rather, Petitioner claims that "the imposition of the citation as a severity and scope of 'G' was not appropriate" and "[t]here is no basis for the finding that the Facility should have recognized the hazard and eliminated it under the circumstances."  P. Br. at 15.

The record does not include any evidence of a history of noncompliance.  Petitioner has not offered any evidence showing an inability to pay the PICMP.  However, Petitioner's noncompliance was serious, in that a resident was injured and transferred to the

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hospital.13  A mid-range $10,000 PICMP is entirely reasonable, if not inadequate, for noncompliance in a situation in which Petitioner did not prevent a foreseeable risk for harm to a resident.

IV.  Conclusion

For the reasons discussed above, I grant summary judgment in favor of CMS.  There is no genuine dispute of material facts, and I find that the facility was not in substantial compliance with the Medicare participation requirements.  A $10,000 PICMP is reasonable.

1. I neither rely on the testimony of CMS's witnesses, nor cite to the statement of deficiencies to establish undisputed material facts.  See CMS Exs. 4 (statement of deficiencies); 9-10 (written testimony of witnesses).  Although I reference the testimony of Petitioner's witnesses (P. Exs. 8-10), CMS is not prejudiced by not having an opportunity to cross-examine these witnesses.
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2. Tag F689 replaced Tag F323 when CMS revised its F-Tags in November 2017.  See CMS's F-Tag Crosswalk, https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationEnforcement/Downloads/F-Tag-Crosswalk.xlsx (last visited Jan. 22, 2021).
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3. Scope and severity levels are used by CMS and state survey agencies when selecting remedies.  The scope and severity level is designated by letters A through L.  Pub. 100-7, State Operations Manual (SOM), chap. 7, § 7400.5.1 (Factors That Must be Considered When Selecting Remedies), "Assessment Factors Used to Determine the Seriousness of Deficiencies Matrix" (table) (Rev. 161, eff. Sept. 28, 2016 (applicable at the time of the survey at issue)); see SOM, chap. 7, § 7400.3.1 (Rev. 185, eff. Nov. 16, 2018) (current version); see also 42 C.F.R. § 488.408.  As relevant here, a scope and severity level of "G" indicates a deficiency involving an isolated instance of actual harm to a resident but that does not cause immediate jeopardy to resident health or safety.
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4. Findings of fact and conclusions of law are in bold and italics.
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5. Although the departmental notes appear to be what are commonly referred to as progress notes, I use Petitioner's terminology of "departmental notes."
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6. A November 8, 2017 departmental note indicates that the facility received an order for Haldol following that incident and administered it by injection.  P. Ex. 7 at 32.
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7. Petitioner entered this late entry more than six weeks after Resident 3's death.
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8. Resident # 3's daughter observed him on the floor and requested that he be returned to his bed.  P. Ex. 7 at 25.
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9. The DAB referenced section 483.25(h)(1); that section was re-designated as section 483.25(d)(1) pursuant to regulatory revisions that became effective November 28, 2016.  81 Fed. Reg. 68,688 (Oct. 4, 2016).
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10. I do not address Petitioner's arguments that Resident # 3's injuries were not related to a fall; Resident # 3 need not have fallen in order for Petitioner to be out of compliance with 42 C.F.R. § 483.25(d)(1), (2).
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11. There is no evidence whether Resident # 3 could reach his call light from the floor.
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12. The CPSC explained that product instability is caused by a change in center of gravity and tip-overs are caused by "some type of interaction . . . by "exerting force on the object while it is in one of its positions of normal use."  P. Ex. 5 at 27.  Thus, simply pulling open a drawer while reaching up to the drawer from the floor could be an exertion of force while the dresser was in a position of normal use.
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13. Although Resident # 3 expired in the hospital, the record does not contain evidence establishing his cause of death.  Therefore, I do not consider Resident # 3's death as a factor when considering the reasonableness of the CMP.
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