Abramson Residence, DAB CR6126 (2022)

DECISION

Based on a complaint investigation and survey completed in February 2017 by the Division of Nursing Care Facilities of the Pennsylvania Department of Health (PDH or state agency), Respondent, the Centers for Medicare & Medicaid Services (CMS), found Petitioner, Abramson Residence (Petitioner), out of substantial compliance with Medicare participation requirements.  CMS imposed a civil money penalty (CMP) against Petitioner of $1,910 per day from January 31, 2017 through April 25, 2017 for a total of $162,350.  As explained herein, I affirm the basis for the imposition of a CMP as well as the per-day amount but modify the duration of noncompliance to end April 18, 2017, for a total CMP of $148,980.

I.  Background

Petitioner is a skilled nursing facility (SNF) located in North Wales, Pennsylvania, certified by and participating in the Medicare and Medicaid programs.  As a result of a complaint investigation survey conducted by PDH between February 17 and February 21,

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2017, CMS found Petitioner to be substantially noncompliant with Tag F226¹ (42 C.F.R. § 483.12(b)(1)-(4) – freedom from abuse, neglect, and exploitation) ² and Tag F323 (42 C.F.R. § 483.25(h)³ – accident hazards/supervision and assistance devices) at the "G" scope/severity level.⁴  CMS Exhibit (Ex.) 1.

Petitioner submitted a plan of correction on February 21, 2017, CMS Ex. 20, and the state agency conducted a revisit survey on March 31, 2017.  PDH surveyors found Petitioner returned to substantial compliance concerning the deficiencies identified at the February 21, 2017 survey but discovered new deficiencies during the revisit survey.⁵  CMS Ex. 30.  As a result of these survey findings, CMS informed Petitioner on April 21, 2017 it would impose a denial of payment for new admissions (DPNA) effective May 6, 2017.  CMS Ex. 22 at 1-4.

On May 2, 2017, CMS informed Petitioner it would no longer impose a DPNA because an April 25, 2017 revisit survey by PDH confirmed the facility had returned to substantial compliance as of April 19, 2017.  Id. at 5.

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On January 8, 2018, CMS informed Petitioner it would impose a per-day CMP of $1,910 for deficiencies arising under 42 C.F.R. § 483.25(h), Tag F323 from January 31, 2017 through April 25, 2017, for a total of $162,350.  CMS Ex. 22 at 6-11.  CMS now concedes Petitioner returned to substantial compliance on April 19, 2017.  CMS Br. at 6 n.7.  With this concession, CMS now contends the proposed per-day CMP at issue here should be imposed from January 31, 2017 to April 18, 2017, for a total CMP of $148,980.

Petitioner timely sought review by an Administrative Law Judge in the Civil Remedies Division to challenge CMS's imposition of remedies and I was designated to hear and decide this case.  On March 7, 2018, I issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order) which, among other things, required the parties to file pre-hearing exchanges including briefs, exhibits, witnesses, and the direct testimony of any proposed witnesses.  Pre-hearing Order at 3.

II.  Admission of Exhibits

CMS filed its pre-hearing exchange which included a pre-hearing brief (CMS Br.), 37 proposed exhibits (CMS Exs. 1-37), and four proposed witnesses.  Petitioner subsequently filed its pre-hearing exchange including a pre-hearing brief (P. Br.), 36 proposed exhibits (P. Exs. 1-36), and 11 proposed witnesses.

On July 10, 2018, Petitioner filed a Motion to Exclude CMS Exhibits 1 and 11 as well as portions of CMS Exhibits 32, 33, 34 and 35.

On July 16, 2018, Petitioner filed a Motion for Sanctions against CMS.  On July 25, 2018, CMS filed a Request to cross-examine all of Petitioner's proposed witnesses and objected to Petitioner's Exhibits 1, 3, 22 and 27.

On July 26, 2018, Petitioner filed a Request to cross-examine all of CMS' proposed witnesses and Response to CMS' objections to Petitioner's Exhibits.

On July 30, 2018, CMS filed a Response to Petitioner's Motion for Sanctions and Petitioner's Objection to CMS' Exhibits.

On August 8, 2018, Petitioner filed a Reply to CMS' Response to Petitioner's Motion for Sanctions and Motion to Exclude CMS' Exhibits.

On December 4, 2018, I issued an Order Denying Petitioner's Motion for Sanctions and overruled Petitioner's Motion to Exclude CMS's Exhibits.

To accept evidence into the record and permit the parties to cross-examine opposing party witnesses, I held a hearing in this matter that took place on February 6, 2019, February 8, 2019,

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and June 26, 2019.⁶  At the outset of the hearing, I overruled CMS's objections to Petitioner's Exhibits and admitted into evidence Petitioner's Exhibits 1 through 36 as well as CMS Exhibits 1 through 37.  Following the hearing, CMS and Petitioner filed Closing Briefs (CMS Closing Br.; P. Closing Br.).

III.  Statement of Issues

The issues presented are:

1. Whether Petitioner was in substantial compliance with the deficiencies cited by PDH in its February 21, 2017 survey and relied upon by CMS to impose remedies against Petitioner; and
2. If Petitioner was not in substantial compliance, whether the remedies imposed by CMS are reasonable.

IV.  Discussion

1. Applicable Law

To participate in the Medicare program, a SNF must maintain substantial compliance with program participation requirements.  To be in substantial compliance, a facility's deficiencies may "pose no greater risk to resident health or safety than the potential for causing minimal harm."  42 C.F.R. § 488.301.  A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act (42 U.S.C. § 1395i-3(b), (c), and (d)), or the regulations at 42 C.F.R. pt. 483, subpt. B.  "Noncompliance" means "any deficiency that causes a facility to not be in substantial compliance."  42 C.F.R. § 488.301.

CMS may impose enforcement remedies against a facility that is not in substantial compliance with a participation requirement.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  Among other enforcement remedies and relevant here, CMS may impose a per-day CMP for the number of days a facility is not in substantial compliance.  42 C.F.R. § 488.430(a).  Before adjustments for inflation, a per-day CMP may range from either $50 to $3,000 per day for less serious noncompliance or $3,050 to $10,000 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  42 C.F.R. § 488.438(a)(1).

A facility has a right to appeal a "certification of noncompliance leading to an enforcement remedy."  42 C.F.R. § 488.408(g)(1); see also 42 C.F.R. §§ 488.330(e),

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498.3(b)(13).  However, CMS's choice of remedies and the factors CMS considered in selecting remedies are not subject to my review.  42 C.F.R. § 488.408(g)(2).

2. Resident CL1

CMS's allegations of "G" level deficiencies concern one resident at Petitioner's facility, Resident CL1.  CMS Ex. 1.  Abramson admitted Resident CL1 on March 4, 2013 with a history of falling and deemed her to be at risk for falls.  CMS Ex. 9 at 1.  The resident also had a well-documented history of abnormal posture, muscle weakness, osteoarthritis, osteoporosis, difficulty walking, a lean to the left side of her body, and a prior history of stroke.  CMS Ex. 9 at 1; CMS Ex. 10 at 1; CMS Ex. 12; CMS 14 at 40.  She also suffered from well-documented cognitive impairments including confusion, forgetfulness, and dementia.  CMS Ex. 12 at 1, 5; CMS Ex. 15 at 19; CMS Ex. 25 at 12.

Resident CL1 resided at Abramson from March 4, 2013 until her death on February 10, 2017.  CMS Ex. 13 at 2.  Throughout her nearly four-year tenure there, Petitioner consistently documented the resident to be at risk of falls that necessitated extensive assistance from facility staff.  CMS Exs. 9, 10, 11; P. Ex. 26.  Prior to the fall at issue here, Resident CL1 suffered four separate falls as a resident at Abramson:

-  A March 2013 fall resulting in a T12 compression fracture and a scalp laceration (CMS Ex. 10 at 13);
-  A fall on May 29, 2015 (CMS Ex. 10 at 25);
-  A fall on April 16, 2016 resulting in a pelvic fracture, abrasions, and a skin tear (CMS Ex. 10 at 13, 24, 25; CMS Ex. 14 at 19); and
-  A fall on December 22, 2016 (CMS Ex. 10 at 25).

A summary of Abramson's care plan⁷ for Resident CL1 documented her need for extensive two-person weight-bearing assistance for transfers and bed mobility and extensive one-person weight-bearing assistance for dressing.  CMS Ex. 5 at 1.  Resident CL1's April 2016 care plan demanded provision of various interventions to prevent falls, including:  a call bell; ambulation and transfer assist devices; assistance for transfers to and from bed and toileting when called for by the resident; and utilization of a bed alarm.  CMS Ex. 10 at 24.

However, that care plan did not require facility staff to provide the resident extensive two-person weight-bearing assistance for transfers and bed mobility or extensive one‑person weight-bearing assistance for dressing.  Id.  Petitioner did not document the need to provide Resident CL1 extensive two-person weight-bearing assistance for

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transfers and bed mobility and extensive one-person weight-bearing assistance for dressing until the resident's Minimum Data Set (MDS)⁸ was updated on November 4, 2016.  CMS Ex. 11.

3. The January 31, 2017 Fall

At 3:45 p.m. on January 31, 2017, Resident Care Assistant (RCA) Phong Quach went to Resident CL1's room to "get [her] ready for dinner."  CMS Ex. 6 at 1; CMS Ex. 7; CMS Ex. 8 at 1; CMS Ex. 27 at 8.  RCA Quach was the only facility employee present in Resident CL1's room.  CMS Ex. 6, 7, 8; P. Ex. 32.  She testified Resident CL1 was in bed resting at that time.  P. Ex. 32 at 1-2.  RCA Quach removed the splint on Resident CL1's left hand to clean her hand, placing the splint at the foot of the bed before she did so.  Id.  RCA Quach assisted Resident CL1 to sit up in bed and directed the resident to hold the headboard of the bed with her right hand by placing Resident CL1's hand there.  Id. at 2.

RCA Quach explained she had the resident sit up in bed because it was easier to reapply the splint on Resident CL1's hand while the resident sat as opposed to lying down.  Id.  RCA Quach turned away from Resident CL1 and moved to the foot of the bed to retrieve the splint to replace it on Resident CL1's hand.  Id.  As RCA Quach reached for the splint, Resident CL1 let go of the headboard and fell to the floor, sustaining injuries to her head and body.  Id.  RCA Quach asserted she "could not grab [Resident CL1] to break her fall in time," CMS. Ex. 7, and immediately called for help.  P. Ex. 32 at 2.

Petitioner transferred Resident CL1 to Abington-Lansdale Hospital for treatment of injuries sustained in the fall.  CMS Ex. 6.  Hospital staff diagnosed Resident CL1 with cervical spinal fractures, a head laceration, bruising, swelling, and a skin tear of her right great toe.  Id.

Resident CL1 was readmitted to Abramson on February 3, 2017.  CMS Ex. 14 at 21; CMS Ex. 15 at 6.  Upon readmission, the facility updated Resident CL1's care plan to require she receive extensive two-person weight-bearing assistance at all times.  CMS Ex. 5 at 2; CMS Ex. 10 at 25.

Resident CL1 died on February 10, 2017.  CMS Ex. 13 at 1.  An autopsy revealed she died in part from complications of the January 31, 2017 fall.  CMS Ex. 17 at 1.

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4. Petitioner did not substantially comply with 42 C.F.R. § 483.25(h), Tag F323.

42 C.F.R. § 483.25(h) requires facilities to minimize the possibility of accidents by keeping residents' environments as free of hazards as possible, and by providing adequate supervision and assistive devices.  The latter provision requiring adequate supervision is at issue here.  CMS contends Petitioner failed to substantially comply with this regulatory requirement, citing the facility's failure to incorporate two-person weight‑bearing assistance for transfers and bed mobility from a November 4, 2016 MDS assessment⁹ into Resident CL1's care plan, conducted only a few months before her fall.  CMS Br. at 11-15.  CMS argues the resident's fall was, as a result, foreseeable, meaning Petitioner did not take all reasonable measures to prevent accidents, as required by 42 C.F.R. § 483.25(h).  CMS Br. at 11-13; CMS Closing Br. at 3, citing Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007).

Petitioner contends it in fact provided adequate supervision and assistance to Resident CL1 because she only required one-person weight-bearing assistance for the care RCA Quach provided, namely helping the resident to sit up, removing her wrist splint, cleaning her hand, and replacing the splint.¹⁰  P. Br. at 9-19.  Petitioner relies chiefly on Resident CL1's October 2016 physical therapy (PT) notes which specified she required only 25% assistance while dressing and was able to sit on the edge of her bed, unassisted, for up to five minutes.  Id. at 12-14, 17-19; P. Cl. Br. at 5-8.

1. Petitioner was not entitled to disregard the November 2016 MDS in planning Resident CL1's care.

I am unpersuaded by Petitioner's contention that it reasonably relied on the October 2016 PT evaluation over the November 2016 MDS assessment to determine what level of assistance Resident CL1 needed for the care RCA Quach provided to her.  The Act requires skilled nursing facilities to "conduct a comprehensive, accurate, standardized, reproducible assessment[s] of each resident's functional capacity."  42 U.S.C. § 1395i–3(b)(3)(A); see also 42 C.F.R. § 483.20.  Facilities must use a "resident assessment instrument" (RAI) specified by CMS to conduct this comprehensive evaluation, which includes assessment of a resident's demographic information,

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customary routine, cognitive patterns, communication, vision, mood and behavior, psychosocial well-being, physical functioning and structural problems, continence, disease diagnoses and health conditions, dental and nutritional status, skin condition, activity pursuit, medications, special treatments and procedures, and discharge planning.  42 C.F.R. § 483.20(b)(1); see also Ctrs. for Medicare & Medicaid Servs., Long‑Term Care Facility Resident Assessment Instrument User's Manual Ver. 1.14 (Oct. 2016), available at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/NHQIMDS20 (eff. Oct. 1, 2016) (hereinafter MDS 3.0 RAI Manual 1.14).

While a facility must conduct an MDS assessment initially upon a resident's admission, it must also reconduct a comprehensive assessment within 14 days of a "significant change in the resident's physical or mental condition."  42 C.F.R. § 483.20(b)(2).  In addition, a facility must conduct a quarterly assessment using a different evaluative instrument at least every quarter.  42 C.F.R. § 483.20(c).  Finally, the regulations oblige facilities to maintain the results of these assessment as part of a resident's record for at least 15 months and use them "to develop, review, and revise the resident's comprehensive plan of care."  42 C.F.R. § 483.20(d).

In short, it is no exaggeration to say that the information generated in MDS assessments is the most comprehensive and accurate data a facility possesses to determine appropriate care and treatment for a resident.¹¹  Crawford Healthcare & Rehab., DAB No. 2738 at 6 n.9 (2016) ("The MDS is the foundation of the 'comprehensive assessment' that is required for all residents of long-term care facilities that participate in the Medicare program.").

In light of the statutory and regulatory significance placed on the MDS and its role in developing resident care plans,¹² Petitioner is hard-pressed to explain why an earlier assessment of more limited scope was a better metric to assess Resident CL1's functional limitations.  Petitioner's witness, Dr. Steinberg, opined that the MDS did not necessarily reflect the actual level of care required because that assessment required staff to capture the highest level of assistance a resident may have needed at any one time, not the

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amount typically needed.  P. Ex. 22 at 3-4.  I do not accept this opinion as credible or persuasive, particularly as it contradicts the statutory and regulatory priority assigned to the MDS.¹³

Resident CL1's treating physician, Dr. Gordon, gamely attempts to establish that a PT assessment would necessarily be more accurate as to limitations within the expertise of physical therapists (such as seated balance) than the broader assessment found in the MDS.  P. Ex. 24 at 4; see also Tr. 309, 311.  But, while this might be true of a PT evaluation that took place after an MDS assessment, it is not necessarily true of an older one.  Here, the PT assessment relied upon by Petitioner here occurred before the MDS assessment, and the facility did not conduct another one afterwards.  And even Resident CL1's physical therapists characterized her progress as "very inconsistent."  P. Ex. 25 at 2.

Meanwhile, both Dr. Steinberg and Dr. Warner-Maron opined that a resident's care plan need not mirror the MDS because the MDS is a "snapshot" of limited utility, while the care plan more dynamically reflects the current needs of a resident.  P. Ex. 22 at 3; P. Ex. 23 at 11.  This is simply wrong.  The MDS is derived from a comprehensive evaluation and is not a snapshot, which is why both the Act and its implementing regulations require facilities who wish to participate in the Medicare program to incorporate treatments or interventions based on the MDS into a resident's care plan.  42 U.S.C. § 1395i–3(b)(3)(A); 42 C.F.R. § 483.20; 42 C.F.R. § 483.21(b)(2).  Moreover, to argue a facility could rely on a care plan that it failed to update following a comprehensive MDS evaluation – in violation of the regulations – is plainly absurd.

Dr. Warner-Maron goes on to cite hypothetical scenarios where a resident's condition improves over a period of days to support her claim that a care plan need not match the most restrictive aspects of an MDS.  P. Ex. 23 at 12, 14.  Dr. Steinberg similarly claimed it would be unreasonable to impose limitations identified in the MDS because a resident might have had a "bad day" during the comprehensive evaluation that forms the basis of the MDS.  P. Ex. 22 at 3.  But the hypothetical scenarios these witnesses envision all feature evaluations showing gradual improvement in a resident's functional abilities after an MDS assessment took place.

As I have explained supra at note 11, facilities are not only permitted to update care plans with new patient data following a MDS assessment; they are obligated to do so.

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But this did not occur here.  Dr. Steinberg's claim that Resident CL1 may have simply had a "bad day" during the MDS evaluation is altogether fanciful and, more importantly, irrelevant, since the PT evaluation Dr. Steinberg believes to be more probative took place before the comprehensive MDS evaluation he wishes to ignore.¹⁴

Dr. Warner-Maron's efforts to demonstrate scenarios where it would be reasonable to discard limitations from a MDS evaluation are inapt because they are premised on documented improvement after an MDS assessment took place.  These hypotheticals have no bearing on the actual case before me, which concerns a 93-year-old woman with a history of falls, abnormal posture, muscle weakness, cognitive issues, and arthritis who most decidedly did not demonstrate improvement in her condition following the MDS assessment, which instead suggested deterioration since her PT assessment from a month earlier.  CMS Ex. 9 at 1; CMS Ex. 10 at 15.

For these reasons, I reject Petitioner's claim that it was reasonable for the facility to disregard the November 2016 MDS assessment in favor of the October 2016 PT assessment.  Petitioner should have looked to the November 2016 MDS assessment to determine the level of supervision appropriate for Resident CL1, and updated her care plan accordingly.

2. Whether the assistance provided by RCA Quach is characterized as dressing or bed mobility, Petitioner did not provide adequate supervision to Resident CL1.

The November 2016 MDS assessment established Resident CL1 required extensive two‑person weight-bearing assistance for bed mobility and extensive one-person assistance for dressing.  CMS Ex. 6; P. Ex. 26 at 6.  Petitioner argues that Resident CL1 was in the act of dressing at the time of her fall, which under both the November 2016 MDS assessment and Resident CL1's care plan required only one-person assistance.  P. Br. at 14-15; CMS Ex. 5 at 1; P. Ex. 26 at 6.

CMS appears to contend the care RCA Quach provided to Resident CL1 at the time of her fall required the level of assistance for bed mobility, but that the facility otherwise failed to provide an adequate level of supervision for dressing.¹⁵  Compare CMS Br. at 14

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("Petitioner had assessed Resident CL1 as needing the extensive assistance of two staff for bed mobility . . . .  By providing only one staff person for care . . .  Petitioner failed to provide Resident CL1 with adequate supervision."), with CMS Closing Br. at 12 ("Petitioner had determined [extensive one-person assistance] was the level of assistance necessary for Resident CL1.  RCA Quach simply did not provide that level of physical support . . . .").

Bed mobility, as that term is used by CMS in the MDS assessment tool that facilities are required to use, means "how a resident moves to and from lying position, turns side to side, and positions body while in bed or alternate sleep furniture."  MDS 3.0 RAI Manual 1.14 at 251.  Dressing is defined as "how resident puts on, fastens and takes off all items of clothing, including donning/removing a prosthesis or TED hose.  Dressing includes putting on and changing pajamas and housedresses."  Id.

Based on these definitions, I find the care RCA Quach provided to Resident CL1 necessarily required bed mobility by the resident.  RCA Quach declared that she entered Resident CL1's room to prepare her for dinner.  P. Ex. 32 at 1.  She first removed a splint from Resident CL1's left arm to wash and clean the resident's arm and hand.  Id. at 2.  The resident was lying in bed at the time.  Id.  After procuring a basin of warm water and a washcloth, RCA Quach cleaned the resident's arm and hand, and then "helped [Resident CL1] into a seated position while she remained in bed."  Id. (emphasis added).

The sequence of events described by RCA Quach – assisting Resident CL1 from lying down into a seated position to replace the splint she had removed – squarely meets the definition of bed mobility ("how a resident moves to and from lying positions . . . and positions the body while in bed . . . .").  MDS 3.0 RAI Manual 1.14 at 251.  By contrast, the reapplication of a splint meets neither the definition of "dressing" as that term is used in the RAI, nor the everyday meaning of the term.  While CMS's definition extends to the donning or removal of prostheses, it otherwise limits the meaning of dressing to putting on, fastening, or taking off "all items of clothing . . . ."  Id.  A splint is placed for the purpose of treatment; it is not a wardrobe choice.  Even if I were inclined to view the reapplication of a splint as more akin to donning clothing, the fact remains that Resident CL1 had to engage in bed mobility when she was repositioned by RCA Quach from lying to sitting in bed.

It is not clear from the record why RCA Quach could remove Resident CL1's splint and clean her arm and hand while Resident CL1 was supine but required the resident to sit up to reapply it.  But once she elected to have Resident CL1 change position and move to the side of the bed to sit, RCA Quach was obliged to secure a second staff member to assist

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her.  In short, the care provided by RCA Quach necessitated bed mobility by Resident CL1.  The comprehensive November 2016 assessment conducted by Petitioner required extensive two-person assistance for such care.  Petitioner simply opted to ignore this provision of the MDS assessment.  Given that the level of supervision provided by the facility to Resident CL1 was inadequate by the standards of its own comprehensive MDS assessment, Resident CL1's fall was altogether foreseeable.

Alternatively, even if I solely defined the care provided to Resident CL1 by RCA Quach to be "dressing," as Petitioner urges, both the October 2016 PT evaluations and November 2016 MDS assessment prescribed extensive one-person assistance for that task.  CMS Ex. 5 at 1; P. Ex. 21 at 1.  RCA Quach's own testimony establishes that she provided no physical support to Resident CL1 when she turned away to retrieve the resident's splint.  P. Ex. 32 at 2.  The aide instead relied on a 93-year-old woman with a history of falls, cognitive issues, and difficulty with balance and shifting weight to hold on to a headboard with one hand.  CMS Ex. 10 at 13, 24, 25; CMS Ex. 12 at 3, 5; CMS Ex. 14 at 19; CMS Ex. 34 at 5.  I cannot fairly describe this level of assistance as "extensive."

In sum, whether Petitioner was obligated to provide extensive two-person assistance to Resident CL1 for bed mobility or extensive one-person assistance for dressing, I conclude Petitioner did not provide adequate supervision to Resident CL1, in violation of 42 C.F.R. § 483.25(h), Tag F323.  Rather than unforeseeable, Resident CL1's fall appears to have been inevitable.

3. Petitioner's remaining arguments have no bearing on the outcome of this case.

Petitioner makes several arguments attacking the state agency surveyor's attention to detail, professionalism, and motivations.  P. Br. at 14-15; P. Cl. Br. at 16-21.  Petitioner's arguments are both unfounded and irrelevant.  The evidence of record in this matter substantiates PDH's finding of noncompliance by Petitioner with 42 C.F.R. § 483.25(h), Tag F323.  Any real or perceived flaws in the survey process are irrelevant and need not be addressed.  See Jewish Home of Eastern Pa., DAB No. 2254 at 6-7 (2009) (observing alleged bias or perceived discrepancies in the survey process are irrelevant when the objective evidence of record establishes noncompliance).

Petitioner also argues it would be improper for me to find it violated 42 C.F.R. § 483.25(h), Tag F323 because PDH found RCA Quach was not negligent in her supervision of Resident CL1 on January 31, 2017.  P. Br. at 3, 10; P. Cl. Br. at 13-15.  This argument is equally without merit.  It is true the PDH found RCA Quach was not negligent, but Petitioner conveniently fails to mention that this is because the state agency concluded Abramson failed to properly train its nursing staff:

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[Abramson] trained staff on "transfer" and "positioning" of residents.  However, prior to January 31, 2017, [Abramson] never trained staff that "transfer/positioning" included sitting residents up in bed . . . . Not until after the family filed a complaint with the [PDH] and a [PDH] surveyor visited [Abramson], did [Abramson] train its staff that "transfer/position" included sitting residents up in bed.  [RCA Quach] cannot be found negligent if the training and instruction she received for the [January 31, 2017] incident was contrary to the surveyor's finding three weeks after the incident.  [RCA] Quach followed [Resident CL1]'s plan of care based upon the instruction and training she received prior to January 31, 2017.

P. Ex. 10 at 10.  Accordingly, even if the state agency's conclusions had any impact on my own fact-finding, and they do not, it is clear PDH did not absolve Petitioner of liability as to whether it provided adequate supervision to Resident CL1; it instead absolved RCA Quach of personal responsibility because Petitioner had failed to adequately train her.  This finding is hardly helpful to Petitioner's cause before me.

5. The duration of the CMP is reasonable.

CMS initially imposed a CMP of $1,910 per day from January 31, 2017 through April 25, 2017.  P. Ex. 9.  Petitioner correctly observes that CMS determined the facility returned to substantial compliance on April 19, 2017, meaning the duration period for the CMP should have ended April 18, 2017.  P. Br. at 21-22.  CMS now stipulates before me that the facility returned to compliance on April 19, 2017.  CMS Br. at 17.  I therefore modify the duration of the CMP period to run from January 31, 2017 through April 19, 2017.

6. The $1,910 per-day CMP amount selected by CMS is reasonable.

CMS may impose civil money penalties on a facility "for either the number of days a facility is not in substantial compliance . . . or for each instance that a facility is not in substantial compliance."  42 C.F.R. § 488.430(a).  Even one instance of noncompliance is sufficient to impose civil money penalties on a facility.  42 U.S.C. § 1395i-3(h)(2)(B)(i)-(ii), (h)(3); 42 C.F.R. § 488.430(a).

In determining the reasonableness of the civil money penalty amount imposed by CMS, I look to the factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors include the seriousness of the deficiency and the facility's compliance history, financial condition, and degree of culpability.  42 C.F.R. §§ 488.438(f), 488.404.

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First, CMS correctly notes the applicable per-day CMP range is $105 to $6,289.  CMS Br. at 16, citing 42 C.F.R. § 488.438(a)(1)(i); 45 C.F.R. § 102.3; 82 Fed. Reg. 9174, 9182 (eff. Feb. 3, 2017).  The $1,910 CMP amount proposed by CMS is thus at the lower end of the potential range.

CMS argues that the seriousness of the deficiencies, the facility's history of noncompliance, and the degree of culpability all warrant the imposition of a $1,910 per-day CMP.  CMS Br. at 15-20.  Petitioner fails to discuss any of these regulatory factors or dispute their application.  P. Br. at 18-19.  Instead, the facility sets forth various due process and equitable arguments that have no bearing on CMS' statutory authority to impose remedies for violations of the Act, including the issuance of a per-day CMP.  Id. at 20-25.  I have no authority under the Act or its regulations to consider these arguments.

Despite Petitioner's apparent waiver of its opportunity to contest the CMP amount, I have considered the appropriate factors.  I conclude Petitioner's noncompliance was serious in nature.  Resident CL1 was an elderly resident with significant and well-documented cognitive and physical limitations.  Despite the clear demands for adequate supervision set forth in the facility's own comprehensive assessment of the resident in November 2016, Petitioner made no effort to update Resident CL1's care plan and provide her adequate supervision and assistance.  As a direct result, Resident 1 fell on January 31, 2017 and ultimately died as a result of injuries sustained from her fall.

I also find Petitioner's degree of culpability to be high as it failed to update Resident CL1's care plan following the comprehensive MDS assessment in November 2016, thus failing to alert its staff to the necessary level of assistance and supervision Resident CL1 required for activities involving bed mobility.

Finally, I have considered Petitioner's history of noncompliance and find the proposed per-day CMP amount to be reasonable.  State surveyors found the facility had a "D" level deficiency on January 12, 2017, only two weeks before Resident CL1's fall.  CMS Ex. 21 at 1.  Petitioner has otherwise been cited for 3 "E" level deficiencies, 2 "F" level deficiencies and 2 "D" level deficiencies since July 1, 2014.  Id. at 1-3.  Significantly, PDH found Petitioner still out of compliance in a March 31, 2017 revisit survey that occurred after the survey that forms the basis of the present appeal.  CMS Ex. 17.  PDH found a "G" level deficiency during that revisit that resulted when a member of Petitioner's staff served hot water without a lid to a resident, causing a first-degree burn.  Id.  I find Abramson's history of noncompliance more than sufficient to support the per‑day CMP proposed by CMS.

V.  Conclusion

For the foregoing reasons, I find Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h), Tag F323 for the deficiency cited by PDH in February 2017 and for

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which CMS imposed a per-day CMP in January 2018.  I find the imposition of a $1,910 per-day CMP for this noncompliance to be reasonable.  Consistent with the concession made by CMS, I modify the duration of the penalty to run from January 31, 2017 to April 18, 2017 for a total CMP of $148,980.

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Endnotes

¹  CMS subsequently rehoused this provision at 42 C.F.R. § 483.12(b)(1)-(4).  81 Fed. Reg. at 68,688, 68,855 (Oct. 4, 2016).  CMS now associates freedom from abuse, neglect, and exploitation under Tag F607.  State Operations Manual (SOM) App'x PP at 217-18, available at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Downloads/Appendix-PP-State-Operations-Manual.pdf (last rev. Nov. 22, 2017).  I refer to the tag and regulation in effect at the time of the survey throughout this decision.

²  CMS did not impose penalties against Petitioner under this regulation and tag.  CMS Ex. 22 at 6.  I therefore limit my discussion to the deficiencies cited under 42 C.F.R. § 483.25(h), Tag F323.

³  This provision is now found at 42 C.F.R. § 483.25(d), with some revisions.  81 Fed. Reg. at 68,828, 68,860.  The failure to provide supervision and assistive devices to prevent avoidable accidents is now associated with Tag F689.  SOM App'x PP at 284.

⁴  Scope and severity levels are used to guide the selection of remedies.  The scope and severity level, designated by letters "A" through "L," is selected from the scope and severity matrix published in the SOM, Ch. 7, § 7400.3.1 (Rev. 185, Nov. 16, 2018).  Facilities with deficiencies of levels A, B, or C remain in substantial compliance.  SOM, Ch. 7, § 7400.3.1, citing 42 C.F.R. § 488.301.  Levels D, E, or F indicate a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy.  Id.  Levels G, H, or I indicate a deficiency that involves actual harm that does not amount to immediate jeopardy.  Id.  Scope and severity levels J, K, and L include deficiencies that constitute immediate jeopardy to resident health or safety.  Id.  The matrix specifies which remedies are required and optional at each level based upon the pervasiveness of the deficiency.  Relevant here, a scope and severity level of "G" indicates an isolated deficiency that involves actual harm but does not pose an immediate jeopardy to resident health or safety.  Id. 

⁵  Because Petitioner has appealed only the deficiencies found in the February 21, 2017 survey, I will not discuss the deficiencies discovered during the March 31, 2017 revisit survey.

⁶  The February 2019 hearing dates resulted in the production of one hearing transcript (Tr.).  Due to technical issues, I held a supplemental hearing in June 2019 to permit the parties to re-examine one of CMS's witnesses, resulting in the production of a supplemental transcript (Supp. Tr.).

⁷  Referred to by facility staff at the hearing as a "Kardex," a proprietary filing system once commonly used to maintain a centralized depository of nursing records and orders and now sometimes generically used to refer to a central collection of patient records.  Supp. Tr. at 98:19-99:3.

⁸  Facilities are obliged to evaluate a new resident upon admission and create a Minimum Data Set, a comprehensive assessment of a resident's functional capabilities and health problems.  See 42 C.F.R. § 483.20(b)(1).  The MDS must be periodically updated when a resident experiences a "significant change" in his or her physical or mental condition.  42 C.F.R. § 483.20(b)(2).

⁹  Petitioner claims the MDS relied upon by CMS cannot be competent evidence because it is undated.  P. Br. at 18-19; P. Cl. Br. at 15.  This claim is specious.  The MDS at issue is a patient record generated by Petitioner and therefore in Petitioner's control; indeed, Petitioner submitted a document dated November 8, 2016 identical to the one relied upon by CMS.  P. Ex. 26 at 6.  Petitioner's own witnesses confirmed the two documents to be the same.  See P. Ex. 15 at 5; P. Ex. 23 at 7-8.

¹⁰  The parties dispute whether this constitutes "dressing" or "bed mobility."  I explain herein that under either construction, Petitioner did not provide adequate assistance to Resident CL1.

¹¹  Certainly, an evaluation more recent than a MDS assessment can lead a facility to vary from the limitations set forth in the MDS assessment, if warranted.  Indeed, facilities must update their approach to patient care in that case.  Harmony Court, DAB No. 1968, 2005 WL 835751 at 4 (2005) ("[C]are provided to residents [in] accord with their assessments and care plans does not limit a facility's duty to provide quality care to addressing needs spelled out in a resident's formal comprehensive assessment where other needs become evident after that assessment.") (citations omitted).

¹²  Though not cited as a basis for a deficiency here, facilities are obligated to develop a comprehensive care plan based on a comprehensive assessment within seven days.  42 C.F.R. § 483.20(d) (now 42 C.F.R. § 483.21(b)(2)).  Updating Resident CL1's MDS in November 2016 would therefore require updating her care plan well before January 2017, when she fell.  Petitioner's claim that it was entitled to rely on an earlier and less comprehensive assessment makes even less sense given that it shirked this obligation.

¹³  Dr. Steinberg's efforts to attack the credibility of the survey process and undermine the testimony of CMS Witness Goldman are equally unpersuasive as they are unsupported by the record before me.  He also opined as to whether Resident CL's fall was foreseeable and whether the level of supervision provided by the facility was adequate.  Resident CL1's treating physician Dr. Gordon similarly opined as to these issues.  P. Ex. 24 at 2-4.  I reject conclusory opinions from either party's witnesses as to legal issues I must decide.

¹⁴  It is somewhat ironic that Dr. Steinberg dismissed the MDS assessment as a "snapshot" in favor of a comparatively dated series of PT assessments in which the authors observed Resident CL1's efforts and abilities were "inconsistent in the unit due to time or day and/or fatigue."  P. Ex. 25 at 1.

¹⁵  PDH's initial notice of deficiencies stated Resident CL1 was being transferred at the time of her fall.  CMS Ex. 11; P. Ex. 3.  In the Independent Informal Dispute Resolution (IIDR) process, PDH amended its notice to state Resident CL1 was in the process of dressing.  CMS Ex. 28; P. Ex. 11.  I am not bound by the state agency's findings from the IIDR process.  Avalon Place Trinity, DAB No. 2819 at 12 n.8 (2017) ("While state agency surveys and their results are the foundation for any subsequent CMS enforcement action, once CMS does proceed with enforcement action, on appeal, the ALJ does not review CMS's conclusions or determinations about earlier state agency-level review (which could include IDR if the facility elects it), but rather reviews the record de novo and determines whether the facility was in substantial compliance with applicable requirements.") (citation omitted).