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                              Tri-Cities Nursing & Rehabilitation, DAB CR5029 (2018)
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Tri-Cities Nursing & Rehabilitation, DAB CR5029 (2018)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Tri-Cities Nursing & Rehabilitation,
	(CCN: 18-5433),
	Petitioner
	v.
	Centers for Medicare & Medicaid Services
Docket No. C-17-1007Decision No. CR5029February 21, 2018

        
              
    

      DECISION
I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose civil money penalties of $405 against Petitioner, Tri-Cities Nursing & Rehabilitation, for each day of a period that began on March 21, 2017 and that continued through May 31, 2017.
I. Background
The parties filed pre-hearing exchanges consisting of proposed exhibits and briefs.  CMS filed six exhibits that are identified as CMS Ex. 1-CMS Ex. 6.  Petitioner filed seven exhibits that are identified as P. Ex. 1-P. Ex. 7.  The parties’ exhibits included the written direct testimony of proposed witnesses.  Neither party objected to my receiving the opposing party’s exhibits and neither party filed a request to cross-examine the opposing party’s witnesses.  Consequently, this case is ready for a decision based on the written record.  I receive the parties’ exhibits into evidence.
Page 2
II. Issues, Findings of Fact and Conclusions of Law
A. Issues
The issues are whether Petitioner failed to comply substantially with a Medicare participation requirement and whether civil money penalties of $405 for each day of a period beginning on March 21, 2017 and continuing through May 31, 2017, are reasonable.
B. Findings of Fact and Conclusions of Law
Petitioner is a skilled nursing facility and applicable federal regulations govern its participation in Medicare.  These regulations include 42 C.F.R. § 483.90(a)(i), which mandates that skilled nursing facilities comply with the standards and requirements of the National Fire Protection Association (NFPA), as published in a document known as the Life Safety Code.1
 The 2012 version of the Life Safety Code includes a requirement that door locks (“releasing mechanisms”) be located no lower than 34 inches above the floor and no higher than 48 inches above the floor.  CMS Ex. 5 at 3 (excerpts from the 2012 edition of the NFPA Life Safety Code).
Petitioner concedes that the Life Safety Code governs its operations and it does not dispute the height requirement for door locks.  Moreover, Petitioner does not dispute the facts of this case.  At a March 2017 survey of Petitioner’s facility surveyors found that several of Petitioner’s doors had deadbolt locks located 52 inches above floor level.  That is four inches higher than the Life Safety Code permits.  CMS Ex. 2 at 2; CMS Ex. 4 at 3; CMS Ex. 6 at ¶¶ 3, 4.  Doors with locks at 52 inches included Petitioner’s resident care office, its director of nursing office, its social services office, its admissions office, its medication preparation rooms, and various storage and supply rooms.  CMS Ex. 4 at 3; CMS Ex. 6 at ¶ 5.  These locks were in obvious violation of the Life Safety Code and were, therefore, noncompliant with Medicare participation requirements.
Petitioner’s defense to these noncompliance findings is essentially that it did its best to resituate the locks once it learned that the locks were not installed according to standards.  Petitioner contends that its facility was constructed prior to the implementation of the 2012 Life Safety Code and that its door locks met applicable standards at the time of the building’s construction.  It asserts that it worked diligently to relocate the locks once it learned that it was not complying with the Life Safety Code, but was unable to do so immediately due to the fact that the locksmith with whom Petitioner contracted experienced an illness and also due to the need to order replacement locking mechanisms.
Page 3
Petitioner argues also that the locks in question were located on doors to areas that were generally off-limits to residents of the facility and so its code violation amounted to harmless error.
I find these defenses to be without merit.  First, the code deficiency is not, as Petitioner contends, harmless.  The requirement that locks be situated no higher than 48 inches above the floor takes into account the fact that residents of a skilled nursing facility are often wheelchair-bound and would have a problem reaching a door latching mechanism that is more than 48 inches above the floor.  Petitioner asserts that the doors at issue were to areas that are not generally accessible to residents.  But, that is patently not true.  A resident might need to meet with Petitioner’s director of nursing or other administrative personnel, for example.  If the resident were wheelchair bound these staff’s offices could be off-limits to that resident.
Moreover, Petitioner’s argument notwithstanding, it had plenty of time within which to resituate the mechanisms.  It cannot hold itself blameless for its failure to do so timely given the amount of time CMS afforded it to make the repairs.
The undisputed facts establish that surveyors told Petitioner’s management about the out of code locks during the March survey.  CMS Ex. 2 at 2; CMS Ex. 6 at ¶ 7.  CMS deferred imposing remedies against Petitioner in order to afford Petitioner the opportunity to correct its deficiency.  In response, Petitioner submitted a plan of correction in which it averred that it would correct the deficiency by no later than May 6, 2017.  P. Ex. 1 at 2; CMS Ex. 3 at 1; CMS Ex. 6 at ¶ 7.  However, it failed to do so and did not actually correct the deficiency until May 31, 2017.  Petitioner’s failure to complete the promised repairs became apparent to CMS only on May 17, 2017, when surveyors conducting a revisit survey discovered that the locks had not been resituated.  CMS Ex. 3; CMS Ex. 6 at ¶ 8.
Thus, there was a period of over six weeks between March 21, 2017 and May 6 of that year when Petitioner could have made the repairs that it promised to make without penalty by CMS.  Petitioner admits that it did not contact a locksmith until May 2, 2017, in order to request that repairs be made.  By waiting until the last minute Petitioner jeopardized its ability to make the repairs timely.2
 Petitioner cannot now take advantage of the fact that it opted to delay making repairs until the last possible minute.
Page 4
Petitioner does not argue that the penalty amount – $405 per day – is unauthorized, nor does it challenge the duration of its noncompliance, except to offer the excuses that I have considered and rejected.  I find the penalties, minimal in the regulatory scheme, to be reasonable given the potential for harm caused by Petitioner’s noncompliance.  I also find them to be reasonable in light of the fact that Petitioner chose to delay making repairs that it knew were necessary and that it had promised to make.


          /s/
        Steven T. Kessel

                      Administrative Law Judge
      1. Federal nursing home regulations were amended and recodified effective November 28, 2016. I cite to the recodified regulation inasmuch as the survey took place after its implementation. back to note 1
                      2. Petitioner delayed making the repairs because it had challenged the deficiency finding in an independent dispute resolution proceeding (IDR). It did not request that repairs be made until after it received an unfavorable IDR result. That choice was Petitioner’s to make but it does not gainsay the fact that it knew about the deficiency finding for weeks and did nothing during that time to correct it. back to note 2 Back to top
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