Desert Canyon Post Acute, LLC, DAB CR6116 (2022)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services to impose a per-instance civil money penalty of $10,650 against Petitioner, Desert Canyon Post Acute, LLC, a Medicare-participating skilled nursing facility.

I. Background

I scheduled an in-person hearing in this case.  However, the parties advised me that they would not be cross-examining witnesses, all of whom testified via affidavit or declaration.  Because of that I decide this case based on the parties' written exchanges.

CMS filed a brief and 13 exhibits that it identified as CMS Ex. 1-CMS Ex. 13.  Petitioner filed a brief and a supplemental brief plus two exhibits that it identified as P. Ex. 1-P. Ex. 2.  Neither party filed objections to exhibits.  I receive the parties' exhibits into evidence.

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II. Issues, Findings of Fact and Conclusions of Law

1. Issues

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

2. Findings of Fact and Conclusions of Law

CMS alleges that Petitioner failed to comply substantially with the Medicare participation requirement codified at 42 C.F.R. § 483.25(d) (previously codified at 42 C.F.R. § 483.25(h)).  This regulation mandates a skilled nursing facility to ensure:  (1) that its resident environment remain as free from accident hazards as is possible; and (2) that each resident receives adequate supervision and assistance devices to prevent accidents.

Petitioner's compliance with the second prong of this regulation is at issue in this case.  CMS asserts that Petitioner failed to provide a resident, identified as Resident 1, with sufficient supervision and assistance to prevent her from falling.  Consequently, according to CMS, this resident fell multiple times, culminating with a fall that fractured her hip.

The regulation does not impose a strict liability requirement on a skilled nursing facility.  It requires a facility to provide supervision and assistance to its residents to reduce known or foreseeable accident hazards to the highest practicable degree, consistent with accepted nursing standards of practice.  Century Care of Crystal Coast, DAB No. 2076, at 6-7 (2007), aff'd, Century Care of Crystal Coast v. Leavitt, 281 F. App'x 180 (4th Cir. 2008).  To comply with the regulation, a facility must take all reasonable precautions to protect residents against sustaining accidents.  Woodstock Care v. Thompson, 363 F.3d 583, 589-90 (6th Cir. 2003).

A skilled nursing facility must assess each of its residents for possible accident risk, and it must act on its assessments.  A facility must not be passive.  The duty to protect is ongoing and never static.  As circumstances change so must the facility adapt to those circumstances.

Where, for example, a resident sustains a fall the facility must strive to ascertain the reason for the accident and must adopt all practicable measures to prevent additional falls from occurring.  If additional falls do occur, the facility must reassess the resident.  It must determine why previously implemented measures did not protect the resident from falling again, and it must undertake additional or new measures to provide additional protection to the resident.

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I find that Petitioner failed to comply substantially with these requirements.  Its failure flows directly from Petitioner's passive response to Resident 1's multiple falls. Petitioner's staff was not aggressive in addressing the resident's falls risk.  The resident fell repeatedly, even on consecutive days.  Her repeated falls required intensive assessments by Petitioner's staff of the resident's problems and demanded plans of action to address the risk that the resident would continue to fall and would be injured.  But Petitioner failed to make intensive assessments or to develop new and detailed plans to care for Resident 1.  The consequence of Petitioner's passivity was that Resident 1 eventually sustained a fall that left her seriously injured.

Resident 1 had gait abnormalities and muscle weakness.  She required staff assistance to perform all activities of daily living.  CMS Ex. 3 at 13-14.  The resident was so unstable that Petitioner's staff had to physically aid her to maintain her balance when she attempted to walk.  She spent much of her time confined to a wheelchair.

Resident 1's cognitive state exacerbated her physical problems.  On February 12, 2021, staff assessed the resident as having at least moderate cognitive deficits.  CMS Ex. 3 at 8; CMS Ex. 11 at ¶ 5.  The resident did not know what year it was and was unable to recall information that she had been given at the beginning of an interview.  The resident also was diagnosed to be suffering from a psychotic disorder, and staff determined that she had communication deficits related to her mental issues.  CMS Ex. 3 at 2, 25.  Resident 1 took psychotropic medication that could produce sedation, dizziness, weakness, and unsteadiness as side effects.  CMS Ex. 3 at 137-138, 141, 165-166, 179.

These deficits and impairments and the resident's physical dependence put Resident 1 at a high risk for sustaining falls and Petitioner's staff assessed her as being highly vulnerable to falling.  CMS Ex. 3 at 162-164.  The staff reiterated this assessment on multiple occasions.  Id. at 52-81.

In fact, the resident did fall, many times.  Resident 1 fell at least ten times during the roughly two-month period beginning on February 6, 2021.  CMS Ex. 3 at 82-136.  Among these falls were falls that the resident sustained over a very short amount of time on February 27, March 3, and March 4, 2021.  All the falls that the resident sustained were unsupervised.  Id.  Typically, staff – sometimes alerted by the resident's cries for help – would discover Resident 1 sitting or lying on the floor, either in her room or in one of Petitioner's common areas.  Some of these falls occurred when the resident sought to get out of bed.  Others happened when the resident attempted to transfer from her wheelchair without staff assistance.  Id.

On April 9, 2021, a member of Petitioner's staff found the resident sitting on the floor.  CMS Ex. 3 at 135.  As with some previous falls the resident had attempted to transfer from her wheelchair without assistance and out of staff's view, lost her balance, and fell.  The resident did not complain of pain immediately but after a short period of time

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complained of hip pain.  She was transferred to a hospital and diagnosed with a fractured hip that required surgery.

Petitioner's staff implemented a variety of interventions prior to Resident 1's April 9, 2021 fall, but these were palpably ineffective.  Interventions included encouraging the resident to use a bell to call for assistance, keeping a call light within the resident's reach, installing a double mattress on the resident's bed, equipping the resident with a bed and wheelchair seat alarm, and placing a lap buddy (a cushion) across the resident's thighs when she sat in her wheelchair.  CMS Ex. 3 at 149-154.  Staff implemented nearly all these interventions in 2020, months before the spate of falls experienced by Resident 1 during February-April 2021.  Id.  Staff implemented no additional significant interventions during the February-April period.  Rather, the resident's treatment record simply reiterates interventions that had been implemented previously.  Id. 

Staff did not perform a comprehensive assessment to determine whether some of these interventions were not working.  Resident 1's cognitive issues suggest that interventions that included supplying her with a bell, or a call light button, might be inutile.  Staff was obliged to determine whether these interventions were effective before relying on them, but they did not.

In fact, there is nothing in the record to suggest that Petitioner's staff comprehensively addressed Resident 1's falls during the February-April 2021 period when the resident was falling continuously.  Rather, the record shows cursory assessments and repetitive recitations of interventions that had been put into effect months previously.  CMS Ex. 3 at 82-136.

On February 6, 2021, after Resident 1 sustained the first of her long series of falls, Petitioner's staff recommended that the resident be considered for 1:1 (continuous) supervision.  If implemented, 1:1 supervision would have placed Resident 1 under constant supervision by at least one member of Petitioner's staff.

Members of Petitioner's staff agreed that the resident would have benefitted from 1:1 supervision.  Three staff members told a state agency surveyor that such supervision would have better protected Resident 1.  CMS Ex. 11 at ¶¶ 17, 18.  Moreover, members of Resident 1's family requested that the resident be provided with additional supervision by Petitioner's staff.  Id. at ¶ 19.

But Petitioner did not provide additional supervision.  The resident's records are devoid of any explanation for why she did not receive it.  Failure to implement 1:1 supervision was not due to a shortage of staff at Petitioner's facility.  CMS Ex. 11 at ¶ 13.

The evidence also shows that Petitioner did not follow its own policies in evaluating and addressing the risks encountered by Resident 1.  Petitioner's care planning policy

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directed its staff to develop a care plan for each resident that included "measurable objectives and timetables to meet a resident's . . . needs."  CMS Ex. 7 at 2.  Petitioner plainly failed to follow this policy in providing care for Resident 1.  Although the resident's care plan contains numerous entries, it fails to establish any parameters by which addressing the resident's fall risk could be evaluated.  CMS Ex. 3 at 82-136.

Petitioner also had a fall risk assessment policy.  That policy required the staff's interdisciplinary team to meet, to identify, and to implement appropriate interventions whenever a resident manifested a risk for falling.  That policy worked in tandem with another facility policy, a fall management policy.  CMS Ex. 7 at 8-9.  It directed staff to meet within 72 hours of a resident's fall and to implement or change appropriate interventions.  Id.  The record does not contain detailed minutes of meetings by Petitioner's interdisciplinary team to address Resident 1's repeated falls, nor does it show that the staff considered and developed new interventions beginning in February 2021, tailored to address the resident's condition.  Rather, it simply restates interventions developed previously.  CMS Ex. 3 at 82-136.

CMS argues that Petitioner also failed to protect Resident 1 from falling in that it failed to enroll the resident in a bowel and bladder training program that might have diminished the risk that she would attempt to visit the bathroom without assistance.

The evidence supports CMS's assertion.  Resident 1 was incontinent and might have benefitted from bowel and bladder training that was designed to improve her continence.  Petitioner's staff thought so based on an August 19, 2020 care plan developed by the staff which cited bowel and bladder training as an intervention.  CMS 3 at 51, 159.  However, this training was either not initiated or was terminated as of September 1, 2020, without explanation.  Id.; CMS Ex. 11 at ¶ 14.

It is certainly possible that Resident 1's cognitive deficits might have rendered bowel and bladder training inutile.  But if that is so, staff should have assessed her and made findings to that effect.  It did not.  Also, given that the staff clearly identified the resident's incontinence as exacerbating her risk of sustaining falls, the staff should have considered alternatives to bowel and bladder training if bowel and bladder training was determined to be of no benefit to the resident.  There is nothing in the record to show that the staff did that.

I find Petitioner's defenses to be without merit.

Petitioner paints a very different picture of the care it provided for Resident 1 than that described by CMS and confirmed by the evidence that I cite above.  In Petitioner's telling, Resident 1 didn't sustain falls prior to April 9, 2021. Rather, she had a penchant for intentionally placing herself gently on the floor in a seated position, immediately after receiving care from Petitioner's staff.  Petitioner's pre-hearing brief at 4.  Petitioner

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claims that Resident 1 is alert and oriented and mentally competent to make choices and decisions on her own behalf.  Id. at 5.  Petitioner contends that its staff contemplated providing 1:1 supervision of Resident 1 but did not do so because the resident made the informed choice not to be supervised continuously.  According to Petitioner:  "Resident 1 adamantly refuses a disruption to her personal space by the provision of a continuous one to one caregiver but will agree to a one to one intervention at some times."  Id. at 4.

Petitioner cites to nothing in the record to support these contentions.  Indeed, Petitioner cites to no exhibits to support any of its assertions.  Its fact claims are unmoored to any of Resident 1's treatment records.1

As an exhibit Petitioner filed a declaration from Michelle West, RN, a consultant.  P. Ex. 1.  Petitioner relies heavily on this declaration as support for its contentions.  Its pre-hearing brief recites the declaration virtually verbatim although it does not cite it.  I have reviewed Ms. West's declaration and find it not to be credible.

Ms. West is not employed by Petitioner.  She has no personal knowledge of the care that Petitioner provided to Resident 1.  She could only have derived her assertions of the facts from reviewing Resident 1's treatment records.  But, Ms. West doesn't cite to any of the records that are in evidence in this case.  Some of her assertions seem to come from thin air, as is the case with her assertion, adopted word for word by Petitioner as argument, that Resident 1 did not sustain falls but rather lowered herself gently to the floor on numerous occasions.  See P. Ex. 1 at 4, ¶ 14.2

Ms. West's contentions notwithstanding, Resident 1's treatment record is devoid of evidence supporting Petitioner's contention that Resident 1 didn't sustain falls but rather, gently sat on the floor.  As I have discussed, the treatment record documents that the falls that the resident sustained were unwitnessed.

No one can say precisely what precipitated the resident being found on the floor, but being on the floor is certainly the natural result of a fall.  On more than one occasion, the resident called out for help after she fell, not the sort of thing that one might do after sitting down deliberately.

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Resident 1's record consistently describes her falls as "falls."  CMS Ex. 3 at 82-136.  There is nothing in that record to suggest that the staff was using the term to describe something other than the term's common and ordinary meaning, nor is there anything in the record to suggest that the resident deliberately placed herself on the floor.

Ms. West's assertion that the resident's many falls were volitional also defies common sense.  This resident was so unstable that she could not stand or walk unassisted.  Intentionally lowering oneself to the floor requires muscle strength and coordination, something that this resident clearly did not possess.

I find Petitioner's assertion, adopting Ms. West's declaration virtually word for word, that Resident 1 was alert, mentally competent, and capable of making her own decisions – and therefore, competent to refuse supervision – also to be without support.  See P. Ex. 1 at 6, ¶ 23.  Petitioner contends that a psychiatrist reported on October 14, 2020, that Resident 1's thought processes were logical, relevant, and completely normal.  Petitioner's pre-hearing brief at 5.  Once again, the assertion is unmoored to Resident 1's treatment record.  Ms. West and Petitioner cite to nothing to support that contention.

Subsequent assessment of Resident 1's mental condition supersedes any findings that a psychiatrist might have made in October 2020.  Resident 1's cognition and judgment were definitely not intact or normal during the period from February through early April 2021, when the resident fell repeatedly.  As I have discussed, an assessment of Resident 1 made by Petitioner's staff in February 2021 found this resident to be suffering from at least moderate cognitive deficits, manifesting confusion as to date, and with poor memory.  She was also diagnosed to be suffering from psychosis and was taking psychotropic medications.  CMS Ex. 3 at 2, 25, 137-138, 141, 165-166, 179.

Furthermore, Resident 1 did not behave as if cognitively normal when interviewed by a state agency surveyor.  The resident told the surveyor that a fruit tree had fallen on her and that she was chased by someone like a police officer.  CMS Ex. 11 at ¶ 19.  The resident could not provide the surveyor with information about her April 9, 2021 fall.

The record likewise contains no support for Petitioner's assertion, once again based solely on Ms. West's declaration, that Resident 1 refused additional supervision.  See P. Ex. 1 at 4, ¶ 16.  Petitioner and Ms. West have pointed to no assessments, no nursing notes, no care plans, or anything else whatsoever in Resident 1's treatment record that supports this assertion.

Petitioner asserts that it did implement 1:1 supervision of Resident 1, evidently despite her alleged resistance to receiving that supervision.  Petitioner's pre-hearing brief at 11.  The record of the resident's care lacks evidence to support this claim, and I find Petitioner's assertion to be false.

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Petitioner seems to argue that Petitioner was justified in not enrolling Resident 1 in bowel and bladder training, contending that the resident was not found to be incontinent after her falls.  Petitioner's pre-hearing brief at 6-7.

The record does not clearly state whether the resident was continent or incontinent after her falls and, once more, Petitioner doesn't cite anything to support its assertion.  Nevertheless, I find it to be irrelevant that the resident might possibly have been found to be continent after her falls.  Petitioner's assertion that the resident was found to be continent after her falls is an ad hoc justification that is no substitute for an assessment of the resident's continence state and the utility of training.  There is nothing in the record to explain why Petitioner abandoned bowel and bladder training as an intervention only days after its staff had decided to provide that training.  There are no assessments of the resident, no conclusions that she would not benefit from that training, and certainly no conclusions that her continence had improved.

Petitioner also provides a long list of the interventions that its staff implemented, allegedly to protect Resident 1.  Petitioner's pre-hearing brief at 7-9.  Once again, Petitioner provides no source for these asserted interventions, aside from Ms. West's declaration, making it very difficult to conclude that Petitioner provided all of them and under what circumstances.

As I discuss above, it is true that Petitioner did implement some interventions to protect Resident 1 from falling.  CMS Ex. 3 at 149-154.  But, and as I explain, the staff implemented most of these interventions before February 2021.  These interventions failed to protect Resident 1 as is evidenced by her numerous falls during February-April 2021.  The record does not contain evidence that Petitioner's staff thoroughly reviewed the resident's status and made a reasoned decision that the interventions that had been adopted previously were sufficient to protect Resident 1 without implementing something in addition or substituting new interventions for those in place.

Petitioner contends that during the February-April period:  "Numerous revisions to Resident 1's Care Plan were created and implemented."  Petitioner's pre-hearing brief at 10.  Petitioner does not identify these alleged revisions or explain how allegedly they were implemented.  It is not possible to identify exactly what Petitioner is contending.

However, I have examined Resident 1's plan of care.  It is true that the staff made numerous entries between February and April, documenting the resident's falls and reciting interventions that had been developed and implemented months previously.  CMS Ex. 3 at 82-136.  However, the document lacks analysis why Resident 1 was falling and why she was falling so frequently.  Nor does it consider the obvious failure of previously implemented interventions to protect the resident.  Simply recording the falls that the resident sustained and reiterating previously adopted interventions is not

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evidence that Petitioner's staff was aggressively evaluating the risks that the resident was encountering or coming up with new or improved approaches to address those risks.

CMS imposed a per-instance civil money penalty of $10,650 to remedy Petitioner's noncompliance.  Petitioner has not contended that the penalty amount is unreasonable if it failed to comply substantially.  However, I have evaluated the penalty determination and I find it to be reasonable.

Per-instance civil money penalties are authorized by 42 C.F.R. § 488.438(a)(2).  The reasonableness of any penalty depends on evidence relating to factors identified at 42 C.F.R. §§ 488.438(f)(1)-(4) and 488.404 (incorporated by reference at 42 C.F.R. § 488.438(f)(3)).  These factors may include the seriousness of a facility's noncompliance and its culpability for that noncompliance.

I note that the penalty that CMS determined to impose falls at about the mid-point of permissible per-instance penalty amounts.  42 C.F.R. § 488.438(a)(2); 45 C.F.R. Part 102.

I find the penalty to be reasonable, based on the seriousness of Petitioner's noncompliance and its culpability.  The noncompliance in this case was extremely serious.  Resident 1, frail, unstable, and cognitively impaired, fell again and again without meaningful intervention by Petitioner's staff.  Staff not only passively allowed the resident to fall but failed to implement a recommended intervention – 1:1 supervision – that staff conceded might have helped the resident and that the resident's family thought would be beneficial.  The consequence of this passive lack of care was that the resident eventually sustained a serious injury from a fall.

Petitioner is culpable for its noncompliance.  The staff's failure to be more aggressive in addressing Resident 1's needs is simply inexplicable, especially given the frequency with which this resident was falling and the staff's evaluation of the resident's physical condition and mental state.

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Endnotes

¹  On October 18, 2021, I issued a standing order to the parties that included instructions for briefing the issues.  That order explicitly directed the parties to cite any evidence that they relied on by exhibit number and page.  Standing Order, ¶ 4(c).  Petitioner failed utterly to comply with this direction.  Its pre-hearing and additional brief are devoid of any citations.

²  Ms. West made no effort to tackle CMS's assertions head on and rebut them.