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                              Hillside Rehabilitation Center, DAB CR5445 (2019)
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Hillside Rehabilitation Center, DAB CR5445 (2019)








  
  
    

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





Hillside Rehabilitation Center,
(CCN: 465128),
Petitioner,
v.
Centers for Medicare & Medicaid Services
Docket No. C-17-464Decision No. CR5445October 10, 2019

        
              
    

      DECISION
Petitioner, Hillside Rehabilitation Center, is a long-term care facility located in Salt Lake City, Utah, that participates in the Medicare program. In just three days, incidents involving a particularly vulnerable resident resulted in at least one fall, two trips to the emergency room, and a hospitalization. Based on these incidents, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and imposed a per-instance civil money penalty (CMP) of $5,263. Petitioner has appealed, and CMS moves for summary judgment.
For the reasons set forth below, I grant CMS’s motion; I find that the facility was not in substantial compliance with Medicare program requirements and that the penalty imposed is not unreasonably high.
Background
The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to
**Page 2**
promulgate regulations implementing those statutory provisions. Act § 1819. The Secretary’s regulations are found at 42 C.F.R. Part 483. To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements. To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.” 42 C.F.R. § 488.301.
The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance. Act § 1864(a); 42 C.F.R. § 488.20. Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys. Facilities must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected. Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308. The state agency must also investigate all complaints. Act § 1819(g)(4).
In this case, surveyors from the Utah Department of Health (state agency) went to the facility to investigate a complaint. While there, they discovered unreported incidents of a resident’s falls and subsequent hospitalizations. They completed their investigation on December 21, 2016. CMS Exhibit (Ex.) 1.1
 Based on their findings, CMS determined that the facility was not in substantial compliance with one Medicare participation requirement: 42 C.F.R. § 483.25(d) (Tag F323 – quality of care: accident prevention) cited at scope and severity level G (isolated instance of substantial noncompliance that causes actual harm but does not pose immediate jeopardy to resident health and safety). Originating Case Decision (DAB e-file #1a); *see* CMS Ex. 1.
CMS has imposed against the facility one per-instance CMP of $5,263. Originating Case Decision (DAB e-file #1a).
Petitioner appeals, and CMS has moved for summary judgment.
With its pre-hearing brief and motion for summary judgment (CMS MSJ), CMS submits 12 exhibits (CMS Exs. 1-12). With its pre-hearing brief and opposition to CMS’s motion (P. Br.), Petitioner submits 13 exhibits (P. Exs. 1-13).
Issues
As a threshold matter, I consider whether summary judgment is appropriate.
**Page 3**
On the merits the issues are:
Was the facility in substantial compliance with 42 C.F.R. § 483.25(d); and
		If the facility was not in substantial compliance, is the penalty imposed – $5,263 per-instance – reasonable.
Discussion
**Summary judgment**. Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. *Bartley Healthcare Nursing and Rehab.*, DAB No. 2539 at 3 (2013), citing*Celotex Corp. v. Catrett*, 477 U.S. 317, 322-25 (1986); *Ill. Knights Templar Home*, DAB No. 2274 at 3-4 (2009), and cases cited therein.
The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.” *Livingston Care Ctr. v. Dep’t of Health & Human Servs.,*388 F.3d 168, 173 (6th Cir. 2004) (quoting *Celotex Corp. v. Catrett*, 477 U.S. at 323-24). To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists. *Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,*475 U.S. 574, 586 n.11 (1986); *see also Vandalia Park,*DAB No. 1939 (2004); *Lebanon Nursing and Rehab. Ctr.,*DAB No. 1918 (2004). The non-moving party may not simply rely on denials, but must furnish admissible evidence of a dispute concerning a material fact. *Ill. Knights Templar*, DAB No. 2274 at 4; *Livingston Care Ctr*., DAB No. 1871 at 5 (2003). In doing so, the non-moving party must show more than “some metaphysical doubt as to the material facts.” *West Tex. LTC Partners, Inc.*, DAB No. 2652 at 6 (2015), *aff’d, West Tex. LTC Partners, Inc. v. U.S. Dep’t. of Health & Human Servs.*, 843 F.3d 1043 (5th Cir. 2016); *1866ICPayday.com L.L.C.*, DAB No. 2289 at 3 (2009) (quoting *Matsushita Elec. Indus. Co. v. Zenith Radio*, 475 U.S. at 587).
In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party. *Brightview Care Ctr.*, DAB No. 2132 at 2, 9 (2007); *Livingston Care Ctr.*, 388 F.3d at 172; *Guardian Health Care Ctr.,*DAB No. 1943 at 8 (2004); *but see* *Brightview*, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable). However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions. *West Tex. LTC Partners, Inc.*, DAB No. 2652 at 6-7, 14-15; *cf. Guardian Health Care Ctr.*, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not
**Page 4**
preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”).
**Summary judgment applied to administrative review in Medicare cases**. It is well-established that an administrative law judge is empowered to decide a case on a motion for summary judgment, without an evidentiary hearing. *Shah v. Azar*, 920 F.3d 987, 996 (5th Cir. 2019) (citing *Cedar Lake Nursing Home v. U.S. Dep’t of Health and Human Servs.*, 619 F.3d 453, 457 (5th Cir. 2010)); *see Fal-Meridian, Inc. v. U.S. Dep’t of Health and Human Servs.*, 604 F.3d 445, 449 (7th Cir. 2010).2
 Nevertheless, there seems to be some confusion about applying such well-founded principles of civil litigation to these proceedings, with some ill-informed advocates suggesting that, to do so, denies a party a fundamental right. In one succinct observation, Judge Posner of the Seventh Circuit Court of Appeals gave lie to such misapprehensions: “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*.” *Fal-Meridian*, 604 F.3d at 449 (emphasis added).
In *Fal-Meridian*, the Seventh Circuit considered specifically the appropriateness of granting CMS summary judgment in a nursing home case involving (then) section 483.25(h).3
 The court sustained the ALJ’s granting summary judgment in CMS’s favor because the petitioner/nursing home did not tender “evidence that, if believed, would show that it had done everything possible (within the meaning of the regulation) to minimize the risks of an accident.” *Id.* at 451.
**Page 5**
Here, CMS has come forward with evidence – primarily the facility’s own documents – establishing facts showing that the facility was not in substantial compliance with section 483.25(d). For its part, Petitioner does not explain why it was not required to do more to keep its residents safe. Instead, it offers unsupported witness statements, attacks the veracity of its own documents, and spins fanciful explanations for the resident’s injuries. Speculation and unsubstantiated assertions do not satisfy a party’s burden to identify *specific* evidence demonstrating a material fact in dispute. *Shah v. Azar*, 920 F.3d at 995; *Pearsall Nursing and Rehab. Ctr. – North*, DAB No. 2692 at 7 (2016) (affirming summary judgment where Petitioner “refers broadly to ‘the evidence presented in [its] response’” but “identifies no specific evidence relevant to the material facts.”); *Forsyth v. Barr*, 19 F.3d 1527, 1533 (5th Cir. 1994). Ultimately, CMS is entitled to summary judgment because Petitioner presents no admissible evidence of specific facts showing that it did everything possible to minimize the risks of an accident.
***1. CMS is entitled to summary judgment because the facility did not tender evidence showing that it did everything possible (within the meaning of 42 C.F.R. § 483.25(d)) to minimize the risks posed to an exceptionally vulnerable resident, and the undisputed evidence establishes that the facility did not adequately investigate or report accidents.4***
**Program requirement: 42 C.F.R. § 483.25(d) (Tag F323)**. The statute mandates that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care. Act § 1819(b)(2). To this end, the “quality of care” regulation mandates, among other requirements, that the facility “ensure” that each resident’s environment remains as free of accident hazards as possible and that each resident receive adequate supervision and assistive devices to prevent accidents. 42 C.F.R. § 483.25(d). The facility must therefore eliminate or reduce a known or foreseeable risk of accidents “to the greatest degree practicable.” *Del Rosa Villa*, DAB No. 2458 at 7 (2012); *Clermont Nursing & Convalescent Ctr.*, DAB No. 1923 at 9-10 (2004), *aff’d*,*Clermont Nursing & Convalescent Ctr. v. Leavitt*, 142 F. App’x 900 (6th Cir. 2005); *accord* *Briarwood* *Nursing Ctr.*, DAB No. 2115 at 5 (2007) (holding that the facility must “take all reasonable steps to ensure that a resident receives supervision and assistive devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”). A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an “adequate” level of supervision under all the circumstances. *Briarwood*, DAB No. 2115 at 5; *Windsor*
**Page 6**
*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); 42 C.F.R. § 483.25(d).
**Resident 6 (R6)**. R6 was a 59-year-old woman, initially admitted to the facility on October 18, 2016, suffering from a long list of impairments, including acute and chronic respiratory failure and unspecified muscular dystrophy. CMS Ex. 2 at 1, 2. She was not ambulatory; her mobility was reduced; and she had a history of falls. CMS Ex. 2 at 4. To keep her safe, R6’s care plan called for “1-2 person extensive to total assist with transfers and mobility, as needed.” For transfers from bed-to-chair and chair-to-bed, the plan required a two-person assist with a Hoyer lift. CMS Ex. 2 at 4.5
**October 17, 2016 incident**. An “event report,” dated October 17, 2016, describes, very briefly and inadequately, an incident that occurred in the facility van as R6 was transported from the hospital to the facility: “Resident was being transported in facility van. When the van accelerated[,] her [wheelchair] tipped back and her head hit the back window.” The report characterizes the incident as a “fall” and describes R6’s injury as “neck and shoulder pain.” CMS Ex. 4 at 1. According to the report, staff notified the facility administrator, physician, and the resident’s family. CMS Ex. 4 at 2-4.
Notes that were not entered until October 24 (after R6’s second fall and discharge from the facility) indicate that staff called the resident’s sister and the resident’s son at 2:00 p.m. and 2:37 p.m., respectively, on October 17. According to the notes, staff informed them that R6’s wheelchair “tipped backwards in the van during the ride over to the community. The resident hit her head on the back window of the van.” Upon arrival at the facility, the van driver “immediately sought nursing attention.” The physician present assessed R6 and, “due to [her] medical history and comorbidities,” recommended that she be evaluated in the emergency room. The family agreed, and the facility sent R6 to the emergency room by ambulance. CMS Ex. 2 at 6.
In her written declaration, facility administrator Cody Morgan acknowledges that R6 herself “reported hitting her head after the incident on October 17, 2016.” P. Ex. 2 at 2 (Morgan Decl. ¶ 4).6
 Neither she, nor anyone else at the facility, claims to have
**Page 7**
investigated the matter. Indeed, Petitioner has produced no evidence establishing that, at the time of the incident, anyone interviewed the van driver or asked him for a written statement.
As of the time of the survey, more than two months later, the van driver still had not been interviewed (or if he had, the facility did not disclose this fact) and had provided no written statement explaining what happened in the van. After some delay, the surveyors were allowed to talk to him. According to the surveyors’ written declarations and their contemporaneous notes, Van Driver Victor Cruz told them that, while driving, “he heard a sound, and the resident called out for help.” When he pulled over, R6’s wheelchair was “tilted back onto the left rear wheel and the other three wheels had left the ground.” The resident had hit her head against the left window of the van and was still leaning against the window. He said that “he couldn’t understand how her wheelchair could have tilted so far.” CMS Ex. 7 at 4, 14-15 (Sabanovic Decl. ¶ 18); *see*CMS Ex. 8 at 4 (Lake Decl. ¶¶ 16, 17); CMS Ex. 9 at 3-4 (Boie Decl. ¶¶ 14, 15); CMS Ex. 10 at 3.
The account Driver Cruz now offers in his written declaration differs from what the surveyors recorded and from the facility’s own documentation. For purposes of summary judgment, I will accept the van driver’s claims that he secured R6’s wheelchair in the usual way; and, as he turned a corner, R6 called out to him. He pulled over, and saw that her wheelchair was “slightly tipped.” He did not know how that happened but speculated that it was caused by a “loose piece” on the wheelchair. He did not see or hear R6 hit her head. P. Ex. 3 at 2 (Cruz Decl. ¶ 7). Driver Cruz does not say anything about how securely R6 was strapped into the chair itself, except to say that he secured it “using one lap restraint belt.” P. Ex. 3 at 2 (Cruz Decl. ¶ 6).
If the van driver’s written declaration is to be believed, he did not report the incident because he purportedly didn’t see or hear anything particularly unusual, which raises unanswered questions about what prompted facility staff to document an accident that did not occur. CMS Ex. 2 at 2, 4, 6; CMS Exs. 4, 6; *see* CMS Ex. 5; P. Ex. 3 at 2 (Cruz Decl. ¶ 7). The regulations require that medical records be complete and “accurately documented,” so, by arguing that facility staff documented an incident that did not
**Page 8**
happen, Petitioner concedes that it was out of substantial compliance. 42 C.F.R. § 483.70(i)(1)(i)-(ii).
Ultimately, however, the facts Driver Cruz currently presents are not material. *See* discussion below.
**The injuries**. R6 spent much of the night of October 17 at the hospital; staff there administered narcotic pain medications – oxycodone and morphine – and took x-rays. She was prescribed a thoracolumbar sacral orthosis brace. CMS Ex. 5 at 1-2. The hospital physicians diagnosed “thoracic compression fracture, closed, initial encounter . . . fall from ground level.” CMS Ex. 5 at 2.
The facility’s fall log also characterizes the incident as a *fall* and indicates that the fall resulted in an injury, which it describes as a *fractured back*. CMS Ex. 6 (line 3 on the chart). Petitioner acknowledges that the tracking log notes R6’s diagnosis of fractured back, but claims (disingenuously) that the log “does not state that the incident in the van caused the fracture.” P. Br. at 5 (¶ 29). Because the fall log is a checklist, it does not include a lot of detail. But it is wholly consistent with the facility’s other documents describing the incident in the van. CMS Ex. 2 at 6; CMS Ex. 4. Moreover, the facility has not come forward with admissible evidence of any other incident to which the tracking log could possibly refer.
Instead, Petitioner suggests that R6 could have broken her back in September or early October, when she resided at another facility. Petitioner’s theory is based on rank speculation, anonymous double hearsay, and medical evidence that establishes the opposite of what Petitioner argues:
Without identifying the speaker or listener, Nurse Aide Amine Guianasou recounts that unnamed staff members from another facility “volunteered” that R6 suffered fractures and falls while at their facility.7
 Ex. 1 at 3 (Guianasou Decl. ¶ 9). We
**Page 9**
already know that R6 was fragile and had a history of falls; that some of these resulted in injury is not surprising, but it does not relieve the facility of its obligation to keep the resident safe from accidents.
		X-rays taken of R6’s hip and pelvis on September 23 show “no acute fracture.” P. Ex. 11 at 49. Petitioner, however, attacks the reliability of the radiologist’s conclusion by pointing out that R6’s decreased bone density limited the radiologist’s evaluation. P. Br. at 5 (¶ 31). I have no idea why Petitioner considers evidence that R6 had no pre-existing hip or pelvis fracture supports its claim that she had a pre-existing thoracic fracture.
		Medical records show that, on October 3, while residing at a different facility, Petitioner complained about *lumbar* (low back) – not thoracic – pain. P. Ex. 6 at 10, 27. As of four days before the incident, however, R6’s records show that she was “without current pathological fracture.” P. Ex. 6 at 3.
None of this so-called “evidence” counters the most-likely scenario that R6 fractured her thoracic vertebra (located in the upper spine) while traveling to the facility on October 17. But, ultimately, as discussed below, the cause of R6’s fracture is not material. The facility’s reaction to the report of an accident, by itself, constitutes substantial noncompliance.
**The facility’s substantial noncompliance**. The facility did not report or investigate the incident – which should have included interviewing the van driver, interviewing R6, and carefully examining the restraints and the wheelchair. CMS Ex. 7 at 5, 7 (Sabanovic Decl. ¶¶ 21, 31). By itself, failing to investigate an accident evidences inadequate supervision. If a resident sustains what appear to be accidental injuries, “a reasonable first step” to prevent the harm from recurring would be to ask about how or why the injuries occurred and to review existing safeguards to ensure that they were adequate and that they were implemented. *Lake Park Nursing and Rehab. Ctr.*, DAB No. 2035 at 11 (2006); *Beechwood Sanitarium*, DAB No. 1906 at 106-107 (2004) (affirming a finding of noncompliance with section 483.25(h)(2) based on the facility’s failure to investigate); *see Dumas Nursing and Rehab.*, DAB No. 2347 at 15 (2010) (finding that the facility’s failure to investigate properly means that it could not identify, understand, and correct its deficient practices); *Century Care of Crystal Coast*, DAB No. 2076 at 21 (2007) (“Clearly, the facility lost an opportunity to analyze and correct the problems that led to the elopement by failing to have an effective system for staff to report and investigate such episodes.”), *aff’d*, 281 F. App’x 180 (4th Cir. 2008).
By itself, the facility’s substantial noncompliance resulting from its failure to report or investigate this incident would be sufficient to support the civil money penalty imposed on it. But unfortunately for R6, the facility’s noncompliance was not limited to this incident.
**Page 10**
**October 20, 2016 incident**. R6 was eventually admitted to the facility on October 18, with a new diagnosis of “thoracic compression [fracture]” and complaints of severe back pain. CMS Ex. 2 at 9. She was about to experience even more trauma.
According to an October 20, 2016 nurse’s note, while R6 was being elevated in a mechanical lift, the right side upper loop of the sling came off the mechanical lift arm. R6 “slid *out of the sling onto her left posterior shoulder, her left leg stayed in the sling.*” CMS Ex. 2 at 7 (emphasis in original).8
An “event report” dated October 20, 2016, describes R6’s fall from the Hoyer lift. According to the report, at 2:00 p.m., R6 was being transferred, using a mechanical lift. Three staff members were present, two at her shoulders and one at her feet. As the lift was elevated and the wheelchair moved away, “the right side upper loop of the sling came off of the mechanical arm.” R6 slid out of the sling and onto her left9
 shoulder. Although the report says that she had no obvious injury, staff called an ambulance. She was transferred to the emergency room. CMS Ex. 3 at 1, 8.
Hospital records indicate that R6 was being moved by a hoist device that was “incorrectly hooked up” and that she fell from a height of approximately four to five feet. She struck her head but did not lose consciousness. She complained of pain in her left hip and right shoulder. CMS Ex. 5 at 3. Her thoracic/lumbar spine was tender, which physicians attributed to a “preexisting fracture from [a] recent fall.” CMS Ex. 5 at 3.10
 X-rays showed clavicle and left hip fractures. CMS Ex. 5 at 10; *see* CMS Ex. 5 at 5-10.
The facility’s fall log characterizes the incident as a fall and indicates that the fall resulted in an injury, which it describes as a fractured hip and shoulder. CMS Ex. 6.
R6 did not return to the facility. CMS Ex. 2 at 6.
**Page 11**
Administrator Morgan reported the event “internally,” but did not report it to the state agency. CMS Ex. 3 at 8. She interviewed the staff who were present when the accident occurred. CMS Ex. 3 at 8. Short accounts of those interviews are attached to the events report. The accounts, while incomplete, are generally consistent:
Physical Therapist Diosdado Articona said that he was positioned at the resident’s right shoulder, Nurse Aide Emilio Zegarra was on the left side of the lift, at the resident’s feet, and Nurse Aide Amine Guianasou was at the resident’s left shoulder. Nurse Aide Guianasou was at the control. As she moved the lift up, Physical Therapist Articona moved the wheelchair out from under the resident. The “right shoulder strap came off and the resident slid downward, landing on her right shoulder.” CMS Ex. 3 at 5.
		Nurse Aide Guianasou confirmed that Physical Therapist Articona was at the resident’s right shoulder and moved the wheelchair away. She was on R6’s left side, controlling the lift. Nurse Aide Zegarra was “at the bottom, moving the lift.” The right shoulder strap came off the lift, and “the resident fell onto the ground.” CMS Ex. 3 at 6.
		Nurse Aide Emilio Zegarra reported that he was at the right base of the lift; Nurse Aide Guianasou was at the resident’s left shoulder; and Physical Therapist Articona was at the resident’s right shoulder. “The lift was activated and [the physical therapist] moved the [wheelchair]. The [H]oyer was moved closer to the bed[,] and the right shoulder sling came off. The resident slid to the ground.” CMS Ex. 3 at 7.
Some important information is missing from these statements: who attached the right shoulder sling to the lift; and did the remaining staff check to ensure that all slings were attached properly. When interviewed by the surveyors, Nurse Aide Guianasou reported that the physical therapist attached the right strap. CMS Ex. 7 at 6 (Sabanovic Decl. ¶¶ 25, 26); CMS Ex. 7 at 16-17 (“She stated that the therapy guy put right side straps by the resident[’]s head. . . . her opinion was that the strap hoop was not all the way in.”). This is, of course, the reasonable inference to be drawn from the evidence: the physical therapist stood at the resident’s right shoulder. Petitioner has presented no admissible evidence suggesting a dispute over this fact. The witness declarations are purposefully vague: they confirm that the “one of the loops came off” but don’t identify which one or who attached it. P. Ex. 1 at 2 (Guianasou Decl. ¶¶ 8(f) and (h)); P. Ex. 4 at 2 (Articona Decl. ¶ 7(f)); P. Ex. 5 at 2 (Zegarra Decl.¶ 7(e)); *but see* P. Ex. 5 at 2 (Zegarra Decl. ¶ 7(g)) (indicating that the right side shoulder loop came off).
CMS also maintains that, of the three employees, the physical therapist was the least trained and experienced in using the Hoyer lift. Facility training records showed that both nurse aides had participated in and completed the Hoyer training. The facility
**Page 12**
produced no documentation showing that the physical therapist had any recent training. CMS Ex. 7 at 6-7 (Sabanovic Dec. ¶ 29). Both nurse aides describe training and extensive experience: “I have been trained on the Hoyer lift and used the Hoyer lift thousands of times.” P. Ex. 1 at 2 (Guianasou Decl. ¶ 5); “I have been trained on the Hoyer lift and used the Hoyer lift many times.” P. Ex. 5 at 2 (Zegarra Decl. ¶ 5). Administrator Morgan says nothing about the employees’ training and experience. CMS Ex. 2. For his part, Physical Therapist Articona is vague about his training and experience: “I have been trained on the Hoyer lift.” P. Ex. 4 at 2.
But these questions are not material. The undisputed evidence establishes that whoever attached the strap did so improperly, and the remaining staff in the room did not check to make sure that all straps were properly attached, which they are required to do. *See* CMS Ex. 7 at 7 (Sabanovic Decl. ¶ 30) (explaining that the Hoyer lift generally requires two caregivers; both are required to ensure that the straps are safely secured).
**Petitioner’s defense**. Petitioner’s answer to all of this is to blame the accident on a design defect in the lift itself. The problem with this claim is that no evidence supports it. Indeed, Petitioner’s argument does not even rise to the level of raising a “metaphysical doubt” as to the material facts. *See West Tex. LTC*, DAB No. 2652 at 6.
First, Petitioner submits no direct evidence of any problems with the lift itself. In fact, the facility’s quality assurance committee met on October 25, 2016. According to the committee report: “The lift and sling were carefully checked and examined for good working order, function and condition. Both the lift and the sling were found to be *in excellent condition*.” CMS Ex. 3 at 8 (emphasis added); *accord* CMS Ex. 3 at 2 (“in proper working order”); CMS Ex. 8 at 5 (Lake Decl. ¶¶ 19, 20); CMS Ex. 9 at 2 (Boie Decl. ¶ 10).
Instead, Petitioner points out that, on March 8, 2017, the Hoyer lift’s manufacturer made some changes in the design of the product. From this, Petitioner asks me to infer that R6’s fall was caused by a defect in the design. P. Br. at 8-9, 24. This is not a reasonable inference, and I will not draw it. Nothing in this record suggests that the earlier design was defective. Petitioner submits documents touting the (then) product as safe and “able to cope with even the most demanding and technical of resident handling situations,” although the literature cautions that “*[c]areful attention* to product design ensures correct ergonomic usage, protecting both the resident and caregiver from injury at all times.” P. Ex. 10 (emphasis added).
The design changes allowed for “more versatility, longevity, and cost efficiency to customers.” P. Ex. 9 at 4. Specifically, the new lift makes it possible to lift heavier patients (up to 700 pounds as opposed to 500); its monitoring technology meant that displays of servicing information (number of lifts, service interval period and the like)
**Page 13**
were improved; and its appearance is “updated.” P. Ex. 9. Nothing suggests that changes were made because the earlier model was unsafe.
**The facility’s substantial noncompliance**. Whoever attached the right strap to the lift made a mistake. At a minimum, each of the staff members present should have checked to ensure that all of the straps were attached properly. No one claims to have done so. The undisputed evidence thus establishes that the facility failed to do everything possible to minimize the risks posed to this exceptionally vulnerable resident.
***2. The penalty imposed is not unreasonably high.***
To determine whether a civil money penalty is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f): (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) factors specified in 42 C.F.R. § 488.404; and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety. The absence of culpability is not a mitigating factor. The factors in 42 C.F.R. § 488.404 include: (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.
I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the section 488.438(f) factors. I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion. *Barn Hill Care Ctr.*, DAB No. 1848 at 21 (2002); *Cmty. Nursing Home*, DAB No. 1807 at 22 *et seq*. (2002); *Emerald Oaks*, DAB No. 1800 at 9 (2001); *CarePlex of Silver Spring*, DAB No. 1683 at 8 (1999).
Here, CMS imposes a per-instance penalty of $5,263, which is in the low range for per-instance penalties ($2,063 to $20,628). 42 C.F.R. §§ 488.408(d)(1)(iv); 488.438(a)(2); 45 C.F.R. § 102.3; *see* 81 Fed. Reg. 61,538, 61,549 (Sept. 6, 2016).11
 Considering the relevant factors, this penalty is reasonable.
CMS offers no evidence of the facility’s history.
Petitioner does not claim that its financial condition affects its ability to pay this minimal amount.
**Page 14**
Applying the remaining factors, I have discussed above the failures to keep this extremely fragile resident safe. Notwithstanding the substantial injuries she suffered on October 17, the facility did not investigate, for which it is culpable. Then, knowing that she was extremely fragile and had recently suffered a serious injury, staff failed to exercise the necessary level of care and attentiveness to keep her safe while transferring her by means of the Hoyer lift. For this, the facility is culpable and the penalty imposed is minimal, considering the seriousness of the deficiency.
Conclusion
For all of these reasons, I grant CMS’s motion for summary judgment. The undisputed evidence establishes that the facility was not ensuring that R6 receive adequate supervision and assistive devices to prevent accidents. The facility was therefore not in substantial compliance with 42 C.F.R. § 483.25(d). The small penalty imposed – $5,263 per-instance – is reasonable.


          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge
      1. The surveyors were unable to investigate the subject of the original complaint because that resident was no longer at the facility.  Instead, the surveyors reviewed the care provided to a random sample of residents, which included Resident 6.  CMS Ex. 7 at 2 (Sabanovic Decl. ¶ 7). back to note 1
                      2. The courts that have considered applying principles of summary judgment to Medicare administrative proceedings have carefully avoided any suggestion that deciding a case on summary judgement means that it is decided without a hearing.  Throughout their decisions, they refer to deciding the case without an “oral hearing” or without an “evidentiary hearing.”  The courts recognize that, although a case may be decided on summary judgment (or based on the written record), an administrative law judge, by considering the evidence and applying the law, has granted the Petitioner a hearing, as required by sections 205(b) and 1866(h) of the Act.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”). back to note 2
                      3. The regulations governing long-term-care facilities have been revised since the Seventh Circuit issued its decision in Fal-Meridian; the requirement that facilities minimize the risk of accidents is now found at section 483.25(d).  81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (July 13, 2017).  However, the substance of the “quality of care” requirements – which are also statutory – has not changed, so decisions that pre-date the regulatory changes remain valid authority.  back to note 3
                      4. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision. back to note 4
                      5. A Hoyer lift is an assistive device used to transfer residents safely.  A sling is attached to the lift and positioned beneath the resident’s torso and legs.  After the straps are secured to the lift, the device can be activated to move the resident vertically and horizontally.  Obviously, it is critically important that the straps be secured properly before the lift is activated.  CMS Ex. 7 at 2 (Sabanovic Decl. ¶ 4); CMS Ex. 12; P. Exs. 8, 9. back to note 5
                      6. Given the placement (or misplacement) of the modifier, “on October 17, 2016,” Administrator Morgan’s testimony is ambiguous.  I assume she means that, after R6 arrived at the facility on October 17, she reported that she hit her head while en route from the hospital, not that R6 reported that she hit her head after she arrived at the facility.  My interpretation is consistent with all of the facility’s documentation.  Moreover, it would not help Petitioner’s case if R6 hit her head after she arrived at the facility.  All “injuries of unknown source” must be thoroughly investigated and reported.  42 C.F.R. § 483.12(c)(1), (2), and (4).  Here, the facility didn’t even mention such an incident, much less report it or investigate.  And Petitioner’s most recent theory – that the injury occurred long before R6 entered the van – is essentially made up out of whole cloth.  (See discussion below). back to note 6
                      7. Even if relevant, I consider this “evidence” so unreliable as to be inadmissible.  Although the federal rules of evidence do not strictly apply in these proceedings, they provide guidance for determining whether evidence is reliable.  Hearsay is generally not admissible under the federal rules.  Fed. R. Evid. 802.  Had the speakers here been listed as witnesses, subject to cross-examination, their statements would be admissible to prove the truth of the matters asserted.  Fed. R. Evid. 801(d)(1).  But they are not even identified; indeed the persons to whom they allegedly made the statements are not identified.  Under the rules, I could determine that these anonymous hearsay statements are inherently unreliable and decline to admit them for the purpose of establishing their underlying truth.  That Petitioner provides no underlying support for the hearsay claims makes them even more suspect.  Ultimately, however, these underlying facts are neither relevant nor material. back to note 7
                      8. This is an error.  In fact, R6 fell on her right shoulder, which she fractured.  CMS Ex. 3 at 5; CMS Ex. 5 at 3; CMS Ex. 8 at 3 (Lake Decl. ¶ 13). back to note 8
                      9. As noted, R6 fell on her right shoulder.  CMS Ex. 3 at 5; CMS Ex. 5 at 3; CMS Ex. 8 at 3 (Lake Decl. ¶ 13). back to note 9
                      10. Petitioner claims that this is an old fracture, likely occurring at R6’s prior facility. But no evidence supports this.  The only reasonable, and supported, inference is that this was the fracture identified following the October 17 incident.  But my decision does not turn on whether R6 was, in fact, injured as a result of either of these incidents.  For this population, any fall presents the potential for more than minimal harm.  Cal Turner Extended Care Pavilion, DAB No. 2384 at 16 (2011). back to note 10
                      11. Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, on January 19, 2017.  See Originating Case Decision (DAB e-file #1a) at 1; 81 Fed. Reg. 61,538 (Sept. 6, 2016). back to note 11 Back to top
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