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                              Lone Tree Convalescent Center, DAB CR5184 (2018)
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Lone Tree Convalescent Center, DAB CR5184 (2018)








  
  
    

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





Lone Tree Convalescent Center,
	(CCN: 05-6021),
	Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-17-275Decision No. CR5184September 7, 2018

        
              
    

      DECISION
Petitioner, Lone Tree Convalescent Center (“Petitioner” or “the facility”), challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with the Medicare program participation requirement that it ensure each resident receives adequate supervision and assistance devices to prevent accidents, as required by 42 C.F.R. § 483.25(h).  Petitioner also challenges the imposition of a civil money penalty (CMP) of $1,003 per day for the period October 31 through December 4, 2016.  For the reasons discussed below, I affirm CMS’s determination.
I.  Background
The Social Security Act (Act) establishes requirements for skilled nursing facility (SNF) participation in the Medicare program and authorizes the Secretary of Health and Human Services (“the Secretary”) to promulgate regulations implementing those statutory
Page 2
provisions.  *See*42 U.S.C. § 1395i-3; 42 C.F.R. pts. 483 and 488.1
  To participate in the Medicare program, an SNF must maintain substantial compliance with program participation requirements.  In order to be in substantial compliance, an SNF’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.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  *Id*.
The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with participation requirements.  42 U.S.C. § 1395aa(a); 42 C.F.R. §§ 488.10, 488.20.  The Act and its implementing regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  42 U.S.C. § 1395i-3(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  CMS may impose a per-day CMP for the number of days an SNF is not in substantial compliance or a per-instance CMP for each instance of the SNF’s noncompliance.  42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. § 488.430(a).  A per-day CMP, without consideration of inflation adjustment, could 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 posed immediate jeopardy to the health and safety of residents.2
 42 C.F.R. § 488.438(a)(1).
If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge (ALJ) to challenge the noncompliance finding and enforcement remedy.  42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).
The California Department of Public Health (state agency) completed a complaint survey at Petitioner’s facility in Antioch, California, on October 31, 2016, and a follow-up
Page 3
survey on December 5, 2016, and cited two deficiencies,3
 to include noncompliance with 42 C.F.R. § 483.25(h) (Tag F323, free of accident hazards/supervision/devices), cited at the “G” level of scope and severity.4
  *See*CMS Exs. 1, 10.  In a letter dated November 16, 2016, CMS informed Petitioner that it would impose, *inter alia*, a per-day CMP of $1,003, effective October 31, 2016.  CMS Ex. 10 at 1-7.  In a subsequent letter dated January 9, 2017, CMS informed Petitioner that it had returned to substantial compliance as of December 5, 2016.  CMS Ex. 10 at 8-10.
Petitioner timely requested a hearing on January 13, 2017.  Pursuant to my Acknowledgment and Pre-Hearing Order (Pre-Hearing Order), CMS filed a pre-hearing brief and 13 proposed exhibits (CMS Exs. 1-13), and Petitioner filed a pre-hearing brief and 25 proposed exhibits (P. Exs. 1-25).
In an Order dated June 29, 2017, I admitted all proposed exhibits, with the caveat that the written testimony of the witnesses for whom cross-examination had been requested would be provisionally admitted pending the presentation of each of these witnesses for cross-examination.5
 *See*Pre-Hearing Order, §§ 8, 9, 10 (addressing that a hearing is for the purpose of cross-examination of witnesses).  At that time, I overruled Petitioner’s objection to CMS Ex. 7.  All witnesses appeared at the September 5-6, 2017 hearing, and
Page 4
therefore, I have admitted all proposed exhibits.  *See*Transcript (Tr.) at 9.  The parties submitted post-hearing briefs (P. Post-Hrg. Br., CMS Post-Hrg. Br.) and reply briefs (P. Post-Hrg. Reply, CMS Post-Hrg. Reply).  The record is closed, and the matter is ready for a decision on the merits.
II.  Issues
The issues presented are:
Whether Petitioner was in substantial compliance with the Medicare program participation requirement at 42 C.F.R. § 483.25(h);
Whether, from October 31 through December 4, 2016, Petitioner was out of substantial compliance with program participation requirements;
If Petitioner was not in substantial compliance, whether a per-day CMP of $1,003   is reasonable.
III.  Discussion6
***A.  Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h) because it did not provide the supervision and assistance devices necessary to prevent a foreseeable accident, and as a result, Resident # 1 sustained an injury in a fall when being transferred from her bed to a wheelchair.***
**Factual Background**
Resident # 1, an 84-year-old female, was admitted to the facility on August 1, 2015, with a primary diagnosis of Alzheimer’s disease.  CMS Ex. 5 at 1.  Resident # 1 had additional diagnoses that included cachexia (wasting syndrome), Type 2 diabetes mellitus with neuropathy, major depressive disorder, and hypertension.  CMS Ex. 5 at 1, 19.  On May 5, 2016, Petitioner completed a Minimum Data Set (MDS) in which it reported that Resident # 1 had a Brief Interview for Mental Status (BIMS) score of 3.7
  That same day,
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Petitioner also coded, for purposes of the MDS, that Resident # 1 transferred with extensive assistance and that Resident # 1 required a two-person assist for transfers.8
Resident # 1 had a fall on August 27, 2015, at which time the facility reported the fall was “unwitnessed” and that she was “found on floor on her back.”  CMS Ex. 5 at 4.  Resident # 1 had another fall on December 15, 2015, at which time she was “assisted to floor in sitting position attempting to transfer self [wheelchair] to bed.”  CMS Ex. 5 at 4.
Petitioner administered Resident # 1 a Morse Fall Scale in May 2016 and assigned a score of 90, which resulted in her being designated as being at high risk for falling.  P. Ex. 18 at 1.  The fall risk score included, as a factor, that Resident # 1 had a previous history of falling.  P. Ex. 18 at 1.
In August 2016, three months after being assigned a fall risk score of 90, Petitioner administered another Morse Fall Scale in which it determined that Resident # 1 had no previous falls and that her fall risk score had remarkably improved from 90 to 15.  CMS Ex. 5 at 13; *see*P. Ex. 18 at 1.  Based on the August 2016 fall risk score, the facility categorized her risk for falls as low.  CMS Ex. 5 at 2, 13.
Resident # 1 had care plans in place.  CMS Ex. 5 at 2-8, 17.  A one-page fall risk care plan contained a combination of pre-printed “check the box” fields and marginally legible or illegible handwritten notations.  CMS Ex. 5 at 2.  Handwritten entries at the top of the fall risk care plan, dated August 1 and 5, 2016, report that Resident # 1 had a change in her Morse Fall Scale score, and that her fall score was *not* “10 or higher (high risk)”9
 and that she was a “low risk [for] falls.”  CMS Ex. 5 at 2.  The facility checked a pre-printed “PROBLEM” on the form that reported Resident # 1 “[a]ttempts unsafe self transfers or ambulation,” but qualified in a handwritten notation that this was only a problem “[at] times.”  CMS Ex. 5 at 2.   Under “APPROACHES,” there is a marginally legible handwritten entry adjacent to the pre-printed field for “Seat walker” (which is not checked) noting “assist/extensive [with] transfer.”  CMS Ex. 5 at 2.   In a separate handwritten entry under the heading of “APPROACHES,” Petitioner stated the following:  “Assist [with] transfers – non ambulatory.”10
  CMS Ex. 5 at 2.  With respect
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to Resident # 1’s “PROBLEMS,” Petitioner entered handwritten entries reporting Alzheimer’s dementia with behavioral disturbances and that Resident # 1 “wanders about [the] facility.”  CMS Ex. 5 at 2.  Petitioner also reported that Resident # 1 had an “[u]nsteady gait and/or balance.”  CMS Ex. 5 at 2.
Resident # 1’s care plan includes an August 13, 2015 entry identifying the broad problem of “SELF CARE DEFICIT/IMPAIRED MOBILITY.”  CMS Ex. 5 at 8.  One approach listed for this problem directed “BED MOBILITY/TRANSFER: PROVIDE EXTENSIVE SUPPORT.”  CMS Ex. 5 at 8.  Another care plan entry identified a problem that Resident # 1 “REJECTS CARE AT TIMES.”  CMS Ex. 5 at 7.  Petitioner’s interdisciplinary team updated this entry on August 9, 2016 (Tr. at 109), at which time it added a new problem that Resident # 1 is “resistant to ADLs, incont[inent] care, transferring [at] times”11
 and that she “swings [her] arms / attempts to hit.”12
  CMS Ex. 5 at 7.  Petitioner did not add any additional approaches to address these new problems.  CMS Ex. 5 at 7.
Petitioner completed another MDS assessment of Resident # 1 in August 2016.  CMS Ex. 9 at 7-9.  The MDS documents that Resident # 1 required extensive assistance with transfers during the seven-day assessment lookback period, meaning that Resident # 1 was “involved in [the] activity; staff provide weight-bearing support.”  CMS Ex. 9 at 8, 15; *see*P. Ex. 15 at 2-4 (testimony of Karen Pillow, RN, Director for Nursing Services for ACT Healthcare Business Solutions, which contracts with Petitioner, that Petitioner completed the MDS based on a review of data collected during a seven-day lookback period); P. Ex. 6 (Documentation Survey Report v2, dated July and August 2016, recording daily data such as ADL assistance provided to Resident # 1 and behavioral observations recorded by Petitioner’s staff).  With respect to the amount of support that Petitioner provided during the lookback period, Petitioner coded that it provided “2+ person physical assist.”13
  CMS Ex. 9 at 8.  The August 2016 MDS also reported that
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there were behavioral symptoms that Resident # 1 did not direct toward others, such as, but not limited to, verbal/vocal symptoms like screaming and disruptive sounds.  P. Ex. 5 at 1.  Resident # 1 did not exhibit any hitting, kicking, pushing, scratching, or grabbing.  P. Ex. 5 at 1.  Further, the MDS indicated that the behavioral symptoms did not put the resident at risk for injury or interfere with care, and that the resident did not reject care.  P. Ex. 5 at 1; *but see* CMS Ex. 5 at 7 (care plan entry that Resident # 1 was resistant to ADLs, to include transfers, and would swing her arms and attempt to hit).
Petitioner compiled ADL logs for Resident # 1 in July and August of 2016, and these logs document that, on the majority of occasions, Resident #1 had total dependence14
 on Petitioner’s staff to fully perform transfers without her involvement.  P. Ex. 6 at 1-2.  Of the 38 transfers logged in July 2016, Petitioner’s staff documented that on 21 occasions Resident # 1 had total dependence on Petitioner’s staff for the transfer.15
  P. Ex. 6 at 1.  Likewise, from August 1 through 10, 2016, Petitioner’s staff logged that Resident # 1 had total dependence on staff for five out of nine transfers, and that Petitioner provided a one-person assist on one of the five occasions in which Resident # 1 was totally dependent on staff for her transfer.  P. Ex. 6 at 2.  With respect to the support provided to Resident # 1 during transfers in July, Petitioner provided a one-person assist on 20 occasions and a two-person assist on 18 occasions.  P. Ex. 6 at 1.  From August 1 through 10, 2016, Petitioner transferred Resident # 1 with a one-person assist on three occasions and with a two-person assist on six occasions.  P. Ex. 6 at 2.
Three certified nurse aides, Baldwinder Banga, Cynthia Floyd, and Ms. Monroe, documented and assisted Resident # 1 with more than half of her transfers from July 1,
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2016 through the date of Resident # 1’s discharge from the facility in August 2016.16
  P. Ex. 6 at 1-2; *see*P. Ex. 7.  Ms. Banga utilized a two-person assist on all nine occasions that she transferred Resident # 1, and Ms. Floyd utilized a two-person assist on seven of the eight occasions that she transferred Resident # 1.  P. Ex. 6 at 1-2; *see*P. Ex. 7; P. Ex. 12 (testimony of Ms. Floyd).  However, unlike Ms. Banga and Ms. Floyd, Ms. Monroe opted to utilize a one-person assist on all 11 of the documented occasions that she transferred Resident # 1 beginning on July 1, 2016, and continuing through August 11.  P. Ex. 6 at 1-2.
Ms. Monroe explained to the surveyor that most of Petitioner’s staff do not want to transfer Resident # 1 to her wheelchair because she “puts up a fuss.”  CMS Ex. 1 at 5; P. Ex. 11 at 4 (testimony of Ms. Monroe, stating: “When I made the statement to [the surveyor] regarding other staff not wanting to put [Resident # 1] in the wheelchair because she puts up a fuss, I meant that she would fuss verbally by crying out and yelling, saying she could do it (referring to transfers) . . . .”).  Ms. Monroe documented that of the eleven times she transferred Resident # 1 in July and August 2016, she always used a one-person assist.  P. Ex. 6 at 1-2.  Further, on all but one occasion that Ms.
Page 9
Monroe assisted her, Resident # 1 required extensive assistance with the transfer, but she was totally dependent at the time of the transfer on August 11, 2016.17
  P. Ex. 6 at 1-2.  Petitioner’s behavioral monitoring log for Resident # 1 for the month of August 2016 documents that Ms. Monroe observed on three occasions in August 2016 that Resident # 1 exhibited “frequent crying” and had previously exhibited this same behavior.  P. Ex. 6 at 3.  Although Ms. Monroe reported that other staff did not want to transfer Resident # 1 due to her putting up a fuss by crying out and yelling (P. Ex. 11 at 3), this allegation is not supported by the available evidence.  For example, Ms. Banga used a two-person assist on all nine occasions that she transferred Resident # 1 in July and August 2016.  P. Ex. 6 at 1-2; *see*P. Ex. 7.  Although Ms. Banga documented that Resident # 1 had total dependence and required full staff performance of every one of those nine transfers, Ms. Banga did not observe any behavioral symptoms on August 1, 6, and 8, to include crying or yelling.  P. Ex. 6 at 3; *see*Tr. at 115 (testimony of Ms. Pillow that code “12” at P. Ex. 6 at 3 “indicates that no behavior – none of the above behaviors were observed”).
At approximately 2:00 pm on August 11, 2016, Resident # 1 fell during a transfer from her bed to a wheelchair for which Ms. Monroe had provided a one-person assist.  P. Ex. 20 at 1.  Shortly thereafter, at 2:09 pm, Ms. Monroe charted that Resident # 1’s level of self-performance of the transfer was “total dependence,” meaning, according to Petitioner’s ADL log, that Resident # 1 had “TOTAL DEPENDENCE – Full staff performance.”  P. Ex. 6 at 2.  At 2:10 pm, Ms. Monroe charted her observation that Resident # 1 had exhibited frequent crying, which she reported was not a new behavior.  P. Ex. 6 at 3; *but see*Tr. at 90 (response of “No” by Ms. Monroe to a question of whether she had ever observed that Resident # 1 “exhibited behaviors such as yelling or crying at the time of an attempted transfer.”).  Although Petitioner has given several accounts of Resident # 1’s August 11, 2016 fall, the record does not include any contemporaneous documentation by Petitioner regarding Ms. Monroe’s own account of the fall, such as a signed statement by Ms. Monroe as part of its investigation.  In fact, staff members other than Ms. Monroe provided all the documented accounts of Resident # 1’s fall, and none of these reports identify the source of the reported information.
A licensed vocational nurse, Alysa Servida, authored a health status note at 2:26 pm on August 11, 2016, in which she stated the following:  “CNA was assisting resident into wheelchair.  Resident started to slip down while CNA was holding her from behind.  CNA slowly helped resident onto the floor.  No injuries noted at this time.”  CMS Ex. 5 at 19.  Ms. Servida did not document how she learned of this account of the fall.
Marian Carter, the Director of Nursing, signed a post-fall observations form on August 17, 2016, that reported an “Effective Date” of “8/11/2016 14:30.”  CMS Ex. 5 at 20-22.
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Ms. Carter explained:  “CNA was attempting to transfer resident into the [wheelchair] when the resident grabbed the right side of the [wheelchair].  While trying to release her hand grip, the [wheelchair] started tilting to the right and the resident started to fall.  CNA assisted resident to the floor.”  CMS Ex. 5 at 20.  Ms. Carter remarked that Resident # 1’s legs “were to the right side of resident, bent,” and that the only observed injury was a 1 cm skin tear/scratch on the left thumb and 1 cm redness on her right outer ankle.18
  CMS Ex. 5 at 21, 22.   In her report, Ms. Carter did not document any musculoskeletal deformities, swelling, or skin discoloration involving the legs or hips.  CMS Ex. 5 at 22.  Further, Ms. Carter did not document the source of the information she reported, to include which, if any observations, were her personal observations.19
On August 12, 2016, one day after Resident # 1’s fall, Vasty Mejia, a registered nurse, completed a fall scene investigation report.20
  P. Ex. 20.  Ms. Mejia reported that at the time of the fall, Resident # 1 “was getting assisted transferring into [wheelchair],” and that the wheelchair “tilted [right] causing resident to start to fall” and the “CNA then assisted resident to the floor gradually.”  P. Ex. 20 at 2.  Ms. Mejia documented that Resident # 1 was confused and alert and oriented *only to* person, which she reported was the same has her “usual mental status.”  P. Ex. 20 at 2; *but see*CMS Ex. 5 at 4 (August 9, 2016 weekly nursing observation reporting that Resident # 1 was alert and oriented x 4 (to person, place, time, and situation)).  Ms. Monroe reported, in response to a question asking about “the life of the resident before the fall,” the following:  “[H]ours prior to [Resident 1’s] assisted fall, her behavior was no different than any other day.  She had been given a bed bath and put into regular clothing by me (Kim Monroe CNA) I believe she ate 100% of her breakfast and took a nap [until] lunch.”  P. Ex. 20 at 3.
Ms. Pillow recorded an “Incident Note” in progress notes on August 15, 2016, in which she stated:
CNA was transferring resident from bed to wheelchair, resident appeared to become weak, and CNA assisted resident
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to the floor.  Per CNA, resident usually holding onto person transferring her, however on this occasion resident grabbed wheelchair and would not let go, wheelchair tilted to the right, requiring CNA to assit [sic] her to the fall.
P. Ex. 10 at 1.
In the statement of deficiencies, dated October 31, 2016, the state agency reported the following based on a conversation between the surveyor and Ms. Monroe:
During an interview on 8/19/16 at 11:15 a.m., [Ms. Monroe] stated she was assisting Resident 1 to the wheelchair at 2:10 p.m. on 8/11/16.  [Ms. Monroe] stated she sat Resident 1 up on the side of the bed and lifted her by holding her around the waist.  [Ms. Monroe] told Resident 1 to hold onto her.  Resident 1 reached to grab the arm of the wheelchair.  The wheelchair tilted and [Ms. Monroe] and Resident 1 went to the floor.  [Ms. Monroe] further stated most staff do not want to put Resident 1 in the wheelchair because it is not easy.  [Ms. Monroe] stated, “She puts up a fuss.”
CMS Ex. 1 at 5.
The first account of Resident # 1’s August 11, 2016 fall, as given directly by Ms. Monroe, is contained in Ms. Monroe’s written direct testimony that Petitioner submitted in May 2017.  P. Ex. 11.  Ms. Monroe explained that Resident # 1 “was an extensive assistance transfer, meaning with some weight bearing.”  P. Ex. 11 at 2.  Ms. Monroe gave the following account of the August 11, 2016 fall:
[O]n August 11, 2016, I had removed the left-side armrest of the wheelchair, placing the chair alongside of the bed nearest the footboard, and had both hands and arms around [Resident # 1’s] waist as she sat on her bed next to the wheelchair.  I told [Resident # 1] to hold onto my shoulders as if to give me a hug, which she did.  This was the same way I had transferred her on prior occasions.  It was during the transfer on August 11, 2016 that [Resident # 1] let go and grabbed the right arm of the wheelchair, while I still had my arms around her waist.  I told [Resident # 1] to let go of the right arm of the wheelchair.  The wheelchair started to tilt to the right, where she would not be sitting in the wheelchair if I were to let go, also not allowing me to put her back in bed, so I assisted [Resident # 1] to the floor in a sitting position.
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P. Ex. 11 at 3.
Resident # 1 remained in the facility for two days after her fall on August 11, 2016.  Petitioner’s ADL logs, along with Ms. Monroe’s testimony, indicate that Resident # 1 did not transfer out of her bed from August 11 through 13, 2016.21
  P. Exs. 6 at 2; 11 at 3-4.  An August 13, 2016 progress note documents that a CNA discovered that same morning that Resident # 1 had “skin discoloration, inflammation, [and] deformity to [r]ight knee,” and that she “cries ou[t] in pain with movement and gentle touch.”  P. Ex. 10 at 1.  The progress note also documents “skin discoloration/inflammation to [r]ight ankle, skin discoloration to [r]ight hand/arm.”  P. Ex. 10 at 1.  Another August 13, 2016 progress note, charted only two minutes later, documents the following:
Resident had witnessed fall on 8/11/2016 at AM shift.  About 6 am assigned CNA reported that . . . resident’s leg look[ed] swollen and patient does not want to move her leg[.]  Immediately [sic] arrival in the room Resident’s right knee noticed internally rotated.  Right thigh swollen, and right knee noticed swollen with bruise and right ankle noticed with bruise.  Resident demonstrated signs 8/10 pain.  Splint applied to right leg to keep immobilize[d].  Tylenol 325 mg two tabs given [as needed] order about 6:15 am.  Based on signs/symptoms of right leg resident needed immediately [sic] evaluation by MD.  AM shift Team Leader called Kaiser MD.  Per MD order resident transferred to ER Kaiser by 911 call.  Resident picked up by [ambulance] staff about 6:45 AM.  Family was notified by AM Team leader.
P. Ex. 10 at 1.
Following her transfer to an acute care hospital, a physician evaluated Resident # 1 and diagnosed bilateral distal femur fractures.  P. Ex. 3 at 2.  X-rays revealed that Resident # 1 had a comminuted and depressed fracture of the left femur and a
Page 13
comminuted and displaced fracture of the right mid to distal femoral shaft.  P. Ex. 3 at 1.  Resident # 1 had surgical open reduction and internal fixation of the right distal femoral fracture, and had casting stabilization on the contralateral side.  CMS Ex. 8 at 1-2.  Although Resident # 1’s physician reported she was admitted to the hospital “for [a] femur fracture after mechanical fall” (CMS Ex. 8 at 4), Dr. Karl Steinberg, a witness who testified on behalf of Petitioner, opined that “[s]ometimes we see spontaneous osteoporotic fractures that occur with basically just trivial amounts of everyday types of stress.”22
  Tr. at 161.
**Facility policies**
Petitioner has a falls and fall risk management policy that requires Petitioner’s staff, with input from the attending physician, to “identify appropriate interventions to reduce the risk of falls.”  CMS Ex. 7 at 1.  Petitioner has a policy addressing the clinical protocol for falls.  CMS Ex. 7 at 2-4.  Pursuant to that policy, Petitioner recognized that risk factors for subsequent falls included “lightheadedness or dizziness, multiple medications, musculoskeletal abnormalities, peripheral neuropathy, gait and balance disorders, cognitive impairment, weakness, environmental hazards, confusion, visual impairment, and illnesses affecting the central nervous system and blood pressure.”  CMS Ex. 7 at 2.
**Relevant authority**
Medicare program requirements include 42 C.F.R. § 483.25, which states that “[e]ach resident must receive and the facility must provide the necessary care and services to
Page 14
attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.”  Subsection 483.25(h) imposes specific obligations upon a facility related to accident hazards and accidents, as follows:
(h)  *Accidents*.  The facility must ensure that —
(1) The resident environment remains as free of accident hazards as is possible; and
	(2) Each resident receives adequate supervision and assistance devices to prevent accidents.
The Departmental Appeals Board (DAB) has held that subsection 483.25(h)(1) requires that a facility address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or, where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  *Maine Veterans’ Home - Scarborough*, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care in section 483.25(h)(1)).  The provisions of section 483.25(h) “come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm.”  *Meridian Nursing Ctr.,*DAB No. 2265 at 10 (2009), *aff’d, Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs.,*604 F.3d 445 (7th Cir. 2010).  The DAB has held that subsection 483.25(h)(2) requires that a facility take “all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  *Briarwood Nursing Ctr.*, DAB No. 2115 at 11 (2007), citing *Woodstock Care Ctr. v. Thompson*, 363 F.3d 583, 590 (6th Cir. 2003) (facility must take “all reasonable precautions against residents’ accidents”), *aff’g* *Woodstock Care Ctr.*, DAB No. 1726 (2000).  Though a facility has the flexibility to choose the methods of supervision and assistance used to prevent accidents, it must also “provide supervision and assistance devices that reduce known or foreseeable accident risks to the highest practicable degree, consistent with accepted standards of nursing practice.”  *Heritage Plaza Nursing Ctr.*, DAB No. 2829 at 6 (2017), citing *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).
**Analysis**
Petitioner contends that it “provided adequate supervision for the resident . . . .”  P. Post-Hrg. Br. at 1.  Petitioner further contends that Resident # 1 “was assessed to receive ‘extensive assistance’ for transfers” and that “[e]xtensive support is defined as the resident is involved in the activity, and the staff provide weight bearing support, which was appropriate for Resident 1.”  P. Post-Hrg. Br. at 2.  Petitioner further argues that “CNAs make a judgment call on how much weight-bearing assistance to provide a
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resident, to let the resident do as much of it as possible.”  P. Post-Hrg. Br. at 4.  Petitioner further argues that “[b]y having Resident 1 perform more of the transfer herself with a single-person assist when appropriate, Lone Tree was maintaining her functional status, to have as much independence as possible and not have her more reliant or dependent on even more weight-bearing assistance for transfers.”  P. Post-Hrg. Br. at 9.  Petitioner contends that CMS “neglect[ed] to acknowledge testimony by Dr. Steinberg, an expert in the long-term care field, that if there are staff on each side it gives the resident less opportunity to provide that weight-bearing assistance as with two staff each person is lifting and it fosters more of a sense of dependence.”  P. Post-Hrg. Reply at 3, citing Tr. at 149.  Petitioner contends that “[f]or over a year prior to August 11, 2016, [Ms. Monroe] had been caring for Resident 1 and had used a hug-like transfer, with the resident who had dementia but was still able to follow the simple command.”  P. Post-Hrg. Reply at 7.  Petitioner further argues that it did not cause Resident # 1 “to sustain more than minimal harm.”  P. Post-Hrg. Reply at 8.
Contrary to Petitioner’s arguments, the evidence shows that Petitioner failed to substantially comply with the requirements of 42 C.F.R. § 483.25(h).  Petitioner did not take reasonable steps to prevent a foreseeable accident involving a fall; not only did Petitioner expose Resident # 1 to a foreseeable risk of harm, but also caused her to suffer actual harm as a result of the fall.23
Petitioner concedes that Resident # 1 was at high risk for falls.  *See*Tr. at 107 (testimony of Ms. Pillow).  Petitioner also acknowledges that Resident # 1 required extensive assistance with transfers.  Tr. at 103 (testimony of Ms. Pillow); Tr. at 177 (testimony of Anna J. Soliven, DNP, APRN, CNS).  Petitioner promotes the theory that by offering a two-person assist with transfers, it would have caused Resident # 1 to be “overly dependent or reliant” on staff for transfers.  P. Ex. 25 at 4.  While Dr. Soliven testified that a two-person assist was not necessary because “the resident was able to have some weight-bearing and assist with her transfers” (P. Ex. 25 at 4), she fails to reconcile that Resident # 1 was frequently totally dependent on staff, to include when *only* *one person* assisted her with transfers.  P. Ex. 6 at 2.  Further, Petitioner fails to consider that even if a care plan requires a two-person assist, that does not necessarily mean that the resident should not be permitted to perform the transfer as much as she can by herself.  For example, nothing prevented Petitioner from imposing a care plan intervention that directed a two-person assist with guidance for staff to maximize Resident # 1’s
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participation such that staff provide only enough weight-bearing assistance necessary to safely perform the transfer and prevent foreseeable accidents.
Relying on the August 2016 MDS assessment, Petitioner argues that Resident # 1 required extensive assistance for transfers.  *See, e.g.,*P. Post-Hrg. Br. at 2; Tr. at 103 (testimony of Ms. Pillow); Tr. at 177 (testimony of Dr. Soliven).  Yet, even though Petitioner relies on the MDS assessment in support of its determination that Resident # 1 required extensive assistance, it rejects the portion of the MDS assessment reporting that a two-person assist was necessary.  CMS Ex. 9 at 8.  Petitioner fails to recognize that for the majority of transfers in July and August, Resident # 1 was *totally dependent* on staff.  Further, and contrary to Petitioner’s primary argument that providing less weight-bearing support than needed would somehow encourage Resident # 1’s participation in the transfer, the evidence shows that when Petitioner provided only one person to assist, Resident # 1 would still fail to participate in the transfer.  P. Post-Hrg. Reply at 3, citing Tr. at 149 (“CMS also neglects to acknowledge testimony of Dr. Steinberg, an expert in the long-term care field, that if there are staff on each side it gives the resident less opportunity to provide that weight-bearing assistance as with two staff each person is lifting and it fosters more of a sense of dependence.”); P. Post-Hrg. Br. at 5 (“Allowing a resident to transfer using one-person assistance is consistent with maintaining their functional status as to not be overly reliant or dependent on others for transfers.  If there are staff on each side, it gives the resident less opportunity to provide that weight-bearing assistance as with two staff each person is lifting.”) (internal citations omitted).
Contrary to Petitioner’s arguments, the number of staff members providing transfer assistance to Resident # 1 seemingly had no impact on Resident # 1’s level of participation in transfers.  For example, entries by three different staff members reported that Resident # 1 required extensive assistance during five different transfers in which staff provided a two-person assist; based on Petitioner’s logic, Resident # 1 would not have needed to participate in the transfer with a staff member on each side.  But to the contrary, five staff members documented that on seven occasions, Resident # 1 was totally dependent on staff even when a lone staff member assisted her with the transfer.  P. Ex. 6 at 1-2.  The evidence demonstrates that, between July 1 and the August 9, 2016 re-determination that Resident # 1 required extensive assistance, Resident # 1 was totally dependent for transfers more than half the time, and on a significant number of those occasions, she was totally dependent even when a lone staff person had to fully perform the transfer, and Resident # 1 neither participated nor was involved in the transfer.  P. Ex. 6 at 1-2.
Petitioner’s obligation under section 483.25(h) is to make sure its residents receive the supervision and assistance devices necessary to prevent accidents, and Petitioner has not identified any authority that permits a facility to deny a resident supervision or assistance devices that could prevent a foreseeable accident.  In addressing the level of assistance that should have been provided to Resident # 1, Petitioner argues that “[b]y having
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Resident 1 perform more of the transfer herself with a single-person assist when appropriate, Lone Tree was maintaining her functional status, to have as much independence as possible and not have her more reliant or dependent on even more weight-bearing assistance for transfers.”  P. Post-Hrg. Br. at 9.  However, as previously discussed, Petitioner has not shown that providing a one-person assist rather than a two- person assist maintained Resident # 1’s “functional status.”  From July 1 through the date of Resident # 1’s fall, Petitioner provided a one-person assist on eight occasions when Resident # 1 was totally dependent on Petitioner for transfers.  P. Ex. 6 at 1-2.  Petitioner focuses a great deal of attention on why it feels that its CNAs are capable of determining whether a one-person or two-person assist is appropriate.  Yet Petitioner does not address Resident #1’s frequent lack of participation in her own transfers, and Petitioner has not offered evidence that its staff knew, at the time they initiated each transfer, the expected involvement Resident # 1 would have in her transfer.  Petitioner repeatedly opted to provide a one-person assist even after Resident # 1 did not participate in transfers on numerous occasions.  The lack of assistance provided by Petitioner to Resident # 1 did not comply with the regulatory requirement set forth in section 483.25(h) that Petitioner provide the supervision and assistance devices necessary to prevent accidents.
Petitioner’s care plan did not promote compliance with Petitioner’s obligation to prevent a foreseeable risk of accidents.  The care plan, which had been updated only days prior to Resident # 1’s most recent fall, communicated to staff that Resident # 1 was a low risk for falls.  And although the care plan directed that Resident # 1 required extensive assistance for transfers, it did not provide any guidance to staff regarding the manner or level of staffing necessary to provide the extensive assistance called for in the care plan.  Likewise, even though care planning acknowledged that Resident # 1 was resistant to ADLs at times, to include transfers, and would swing her arms and attempt to hit, the care plan did not provide any interventions for staff to employ if Resident # 1 was not cooperative during the course of a transfer.24
  CMS Ex. 5 at 7.  Further, even though Petitioner had updated the care plan within days of Resident # 1’s most recent fall, it did not update the care plan to address that Resident # 1, since at least July 2016, failed to actively participate in her transfers the majority of the time and was totally dependent on staff to perform her transfers.  If the care plan had put staff on notice that Resident # 1 was, more often than not, totally dependent for transfers, staff members would have been fully informed when assessing the level of support necessary to ensure that Resident # 1 received adequate supervision and assistance devices as required by 42 C.F.R. § 483.25(h).
Petitioner argues that CNAs are capable of determining whether a one-person assist or two-person assist is necessary.  P. Post-Hrg. Br. at 4.  However, Petitioner has not
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explained why it would be more appropriate for a CNA, who has a limited amount of professional training as compared to the members of an interdisciplinary team and may have no prior familiarity with a resident, to individually determine the assistance necessary to adequately supervise a resident rather than the interdisciplinary team that is charged with developing a comprehensive care plan.  Further, Petitioner’s argument that its CNAs can dictate the level of assistance necessary for a transfer is simply not supported by the record; when Ms. Monroe determined that she needed to provide a two-person assist on August 12, 2016, she was unable to perform the transfer because she was unable to obtain the assistance of another staff member.  *See*P. Ex. 11 at 3-4.
Petitioner argues that “CNA 1 is physically strong, and the majority of the time had transferred Resident 1 as a one-person assistance (on her own).”25
  P. Post-Hrg. Br. at 4.  Petitioner misunderstands the issue; there is no allegation, much less evidence, that Resident # 1 fell because Ms. Monroe was not strong.  Rather, if I accept the veracity of Ms. Monroe’s testimony for purposes of this discussion,26
 Resident # 1 fell because she did not follow Ms. Monroe’s instructions and put her hand on the wheelchair instead of Ms. Monroe’s neck.  *But see*P. Ex. 6 at 2 (Ms. Monroe’s contemporaneous charting that Resident # 1 did not actively participate in the transfer).  Resident # 1 fell while being
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transferred by a lone CNA from a bed to a wheelchair, meaning that the CNA, by herself and without participation by Resident # 1, had to support Resident # 1’s body weight while making sure that the wheelchair was stationary and did not tip or roll.
The DAB “has repeatedly held that section 483.25(h) obligates a facility to take “all reasonable steps to ensure that a resident receives supervision and assistive devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  *Heritage Plaza,*DAB No. 2829 at 6, citing *Briarwood Nursing Ctr.,*DAB No. 2115 at 5 (2007).  The DAB has also explained:
For a risk to be foreseeable, it need not have been made obvious by having already materialized.  The regulation speaks in terms of ensuring that what is “practicable” and “possible” to do is done.  What is thus required of facilities is not prescience but reason and professional judgment in assessing what can be done to make residents (given their special needs) safe, through removing accident hazards, providing appropriate devices, and ensuring adequate supervision.
*Josephine Sunset Home*, DAB No. 1908 at 15 (2004).
Petitioner’s falls and fall risk management policy required it to “identify appropriate interventions to reduce the risk of falls,” yet the broad intervention provided no specific guidance to the CNA who unsuccessfully transferred Resident # 1 on August 11, 2016.  CMS Ex. 7 at 1.  Petitioner was on notice that Resident # 1 could be resistant to transfers, in that her care plan identifies that problem.  CMS Ex. 5 at 7.  And Petitioner was on notice that Resident # 1 did not always participate in transfers and that the staff would have to fully perform transfers for her.  P. Ex. 6 at 1-2.  Although Petitioner argues that its staff could exercise their judgment to decide whether one or two people should assist Resident # 1 with a transfer, the evidence supports that, when Ms. Monroe exercised her judgment to call for a two-person assist on August 12, 2016, she had no choice but to leave Resident # 1 in bed because she could not obtain another staff member’s assistance with the transfer.27
  P. Ex. 11 at 3-4.
Simply said, Petitioner did not take all reasonable steps to ensure that Resident # 1 received the supervision and assistive devices necessary to prevent a fall.  It did not account for her frequent total dependence on staff for transfers in its care planning, and it
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did not ensure that staff knew that she may not participate in or cooperate with transfers. While Ms. Monroe testified that Resident # 1 unexpectedly moved one of her hands during the transfer and put it on the wheelchair against her instructions, which apparently caused the wheelchair to tip, it should not have been a surprise to any CNA that Resident # 1, who had dementia and numerous physical ailments, along with a reported history of resistance to transfers, could not be relied upon to follow instructions.  Even if Ms. Monroe expected, based on her personal experience with Resident # 1, that she would follow all instructions, Petitioner undoubtedly could have instructed its staff that the supervision necessary for a safe transfer should not hinge on the level of cooperation and involvement Resident # 1 would provide during the transfer.  Because Resident # 1 required more assistance than Ms. Monroe could provide, in that Ms. Monroe could not support all of Resident # 1’s weight during the transfer while stabilizing the wheelchair, Resident # 1 was injured in a fall.  I therefore conclude that Petitioner failed to comply substantially with 42 C.F.R. § 483.25(h).
***B.******A per-day CMP of $1,003 for the period October 31 through December 4, 2016, is a reasonable enforcement remedy for Petitioner’s noncompliance.***
If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, including a CMP.  In determining whether the CMP imposed against Petitioner is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f).  42 C.F.R. 488.438(e)(3).  These factors include: 1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified 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.  42 C.F.R. § 488.438(f).  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 above factors.  I am neither bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  *See, e.g., Barn Hill Care Ctr.*, DAB No. 1848 at 21 (2002).
In this case, CMS imposed a per-day CMP of $1,003 for 35 days from October 31 through December 4, 2016, for a total CMP of $35,105.  CMS Ex. 10 at 8-9.   Other than generally arguing that a CMP should not have been imposed and that CMS did not properly take into account the factors listed at 42 C.F.R. § 488.438(f), Petitioner provides
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no specific argument why a CMP of $1,003 per day for 35 days is unreasonable.  Further, with respect to the 35-day duration of the penalty, Petitioner’s argument is limited to the following in its brief:  “Lone Tree submitted the acceptable [plan of correction] on November 29, 2016.”  P. Br. at 24.
It is “well-settled” that “the period of noncompliance continues until the facility affirmatively demonstrates a return to substantial compliance.”  *Ridgecrest Healthcare Ctr.,*DAB No. 2493 at 15 (2013), citing*Premier Living & Rehab. Ctr.*, DAB No. 2146 at 23 (2008); *Lake City Extended Care*, DAB No. 1658 at 12-15 (1998).  Petitioner failed to substantially comply with participation requirements through the follow-up survey on December 5, 2016.  Petitioner has failed to establish that it returned to substantial compliance earlier than December 5, 2016.  Petitioner does not argue that it returned to compliance any earlier than the date it submitted its plan of correction, November 29, 2016.  P. Br. at 24.  And with respect to the date Petitioner returned to substantial compliance, Petitioner’s plan of correction indicates that it would implement an electronic health record Kardex system on November 29, 2016, and that it would educate its CNAs on the use of the Kardex, reporting “[e]ducation provided 11/28/2016 and ongoing.”  CMS Ex. 1 at 5.  In arguing that it returned to compliance on the date it submitted its plan of correction, Petitioner has not explained how the state agency could have determined that, based on the scant description provided in less than 100 words in its plan of correction, Petitioner fully implemented a Kardex system, that the Kardex system “better communicate[d] the residents’ transfer needs to direct care staff,” and that it had trained the CNAs on the use of the Kardex.  *See*CMS Ex. 1 at 5.  Petitioner makes no argument why a revisit survey would not be necessary to assess whether the plan of correction, alone, established a return to substantial compliance.  Absent any evidence, much less argument, that there is an evidentiary basis to confirm that Petitioner actually returned to substantial compliance on November 29, 2016, Petitioner has not shown that the determination that it returned to substantial compliance on December 5, 2016, when the state agency reassessed the facility, is inappropriate.  Not only is the burden on Petitioner to demonstrate that it returned to substantial compliance at a date earlier than that which CMS determined, but further, it must show that it was able to remain in substantial compliance as of the earlier date.  42 C.F.R. § 488.454(e); *Hermina Traeye Mem’l Nursing Home*, DAB No. 1810 at 13 (2002); *Cross Creek Care Ctr.*, DAB No. 1665 (1998).
The deficiency here is serious, and Petitioner is culpable.  Petitioner failed to protect Resident # 1 from a foreseeable accident.  Even though Resident # 1 was at high risk for falls and was totally dependent on staff for a full performance of transfers more often than she participated in transfers, Petitioner allowed its staff to transfer Resident # 1 with as little assistance as a one-person assist.  In fact, even when Resident # 1 did not participate in transfers, Petitioner did not utilize a two-person assist (or a lift), but rather, would allow a lone staff member to perform the transfer.  Petitioner failed to adequately
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supervise Resident # 1 and did not provide assistance devices to protect Resident # 1 from falls; as a result, she was injured in a fall.
Petitioner does not argue with any specificity that the per-day amount of the CMP is unreasonable.  Addressing other factors, I note that Petitioner acknowledges a previous citation for Tag F323 two years prior to the October 2016 survey.  P. Br. at 24, citing CMS Ex. 3 at 1-2 (citing “E” level deficiency cited under Tag F323 in October 2014).  Further, Petitioner has not offered any evidence showing an inability to pay the per-day CMP; unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  *Coquina Ctr.*, DAB No. 1860 (2002).  The per-day CMP of $1,003 is at the low end of the authorized penalty range that, without consideration of inflation adjustment, ranged from $50 to $3,000 per day.28
  42 C.F.R. §§ 488.408(d)(1)(iii), 488.438(a)(1)(ii).  Based on consideration of the relevant factors, the CMP is reasonable.
IV.  Conclusion
For the foregoing reasons, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h) and that it was not in substantial compliance with program participation requirements from October 31 through December 4, 2016.  A per-day CMP of $1,003 for 35 days is a reasonable enforcement remedy.


          /s/
        Leslie C. Rogall

                      Administrative Law Judge
      1. Federal nursing home regulations substantially changed beginning on November 28, 2016. 81 Fed. Reg. 68,688 (Oct. 4, 2016). Based on the date of the October 31, 2016 survey that initially cited the deficiencies (CMS Exhibit (Ex.) 1), I refer to the regulations that were in effect at the time of that survey. back to note 1
                      2. CMP amounts increased, beginning August 1, 2016, for deficiencies cited after November 2, 2015, to “reflect the statutorily mandated amounts and ranges as adjusted for inflation.” See 81 Fed. Reg. 61,538, 61,573-61,574 (Sept. 6, 2016). Although CMS acknowledged that CMPs may be inflation-adjusted, it listed the applicable per-day CMP amount as ranging from $50 to $3,000, which is not the CMP range that was in effect at the time the state agency cited the deficiencies. CMS Brief (Br.) at 2. Likewise, Petitioner cited an incorrect penalty range that did not account for inflation adjustment, stating: “The amount of the CMPs range from $50 to $3,000 per day for non-immediate jeopardy. 42 C.F.R. § 488.438(a).” Petitioner Brief (Br.) at 24. back to note 2
                      3. CMS cited 42 C.F.R. § 483.10(b)(11) (Tag F157, changes in condition) as the basis for the other deficiency, and the parties presented arguments regarding that deficiency. See CMS Ex. 1 at 1-3; CMS Br.; P. Br. CMS later stipulated that “Petitioner was in substantial compliance with 42 C.F.R. § 483.10(b)(11) (F157) for the period of time subject to the October 31, 2016 survey, which survey is the subject of this appeal.” CMS Stipulation at 1, submitted September 14, 2017. back to note 3
                      4. Scope and severity levels are used by CMS and state survey agencies when selecting remedies. The scope and severity level is designated by letters A through L. Pub. 100-7, State Operations Manual, § 7400.5.1 (Factors That Must be Considered When Selecting Remedies), “Assessment Factors Used to Determine the Seriousness of Deficiencies Matrix” (table), https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07.pdf (last visited August 28, 2018); see 42 C.F.R. § 488.408. As relevant here, a scope and severity level of G, H, or I corresponds to a deficiency that involves actual harm that does not amount to immediate jeopardy. back to note 4
                      5. CMS had initially requested an opportunity to cross-examine all of Petitioner’s witnesses, but it later withdrew its request to cross-examine the three witnesses who provided the testimony submitted as P. Exs. 12 (Cynthia Floyd), 13 (Bhupinder Dhaliwal), and 14 (Alysa Servida). CMS’s Amended Request to Cross-Examine Petitioner’s Witnesses at 1, submitted August 21, 2017. back to note 5
                      6. Findings of fact and conclusions of law are in bold and italics. back to note 6
                      7. A BIMS score of 3/15 correlates to “severe” cognitive impairment. See Long-Term Care Facility Resident Assessment Instrument (RAI) 3.0 User’s Manual, Ch. 3 (Overview to the Item-by-Item Guide to the MDS 3.0), § C0500 (Summary Score) at C-14, https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/Downloads/MDS-30-RAI-Manual-V113.pdf (herein referred to as “BIMS Summary Score Criteria”) (last visited August 28, 2018). back to note 7
                      8. The instructions direct that, when coding for support provided, the facility code for the most support provided over all shifts during the review period. CMS Ex. 5 at 23. back to note 8
                      9. Resident # 1’s most recent fall risk score, in August 2016, was 15. CMS Ex. 5 at 13. back to note 9
                      10. Hospital records document that Resident # 1 was unable to walk at the time of the fall risk assessment. CMS Ex. 8 at 5 (“Even if surgery went well, highly unlikely [Resident # 1] will be able to walk again since she has not been able to walk (except for a few steps but very unstable) even prior to these fractures.”). back to note 10
                      11. ADLs are activities for daily living. ADLs include, but are not limited to, hygiene (bathing, dressing, grooming, and oral care), mobility (transfer and ambulation, including walking), dining (eating, including meals and snacks), and communication (including speech, language, and other communication systems). 42 C.F.R. § 483.24(b). back to note 11
                      12. The fall risk care plan does not address that Resident # 1 was resistant to transfers, and would swing her arms and attempt to hit. Further, Kimberley Monroe, a certified nurse aide (CNA), testified that Resident # 1 was not “physical or resistive to transfers.” P. Ex. 11 at 4. Neither party has submitted facility records documenting a history of hitting by Resident # 1. back to note 12
                      13. The form explained that “[w]hen an activity occurs three times at multiple levels, code the most dependent, exceptions are total dependence . . . activity must require full assist every time,” and the form further directed that “[w]hen there is a combination of full staff performance, and extensive assistance, code extensive assistance.” CMS Ex. 9 at 8. back to note 13
                      14. The RAI Version 3.0 Manual defines “total dependence” as being when there is “full staff performance of an activity with no participation by the resident for any aspect of the ADL activity and the activity occurred three or more times.” RAI Version 3.0 Manual, Coding Instructions for G0110, Column 1, ADL Self-Performance at G-6. Likewise, “extensive assistance” is appropriate, for purposes of the MDS, when the resident “performed part of the activity . . . .” RAI Version 3.0 Manual, Coding Instructions for G0110, Column 1, ADL Self-Performance at G-5. The MDS assessment is a “starting point” and “provides a foundation for a more thorough assessment and the development of an individualized care plan.” RAI Version 3.0 Manual, Overview of the Resident Assessment Instrument (RAI) and Care Area Assessments (CAAs), at 4-1, 4-2. back to note 14
                      15. I note that on six of these 21 occasions in July 2016, Petitioner provided a one-person assist to transfer a resident who was totally dependent on staff to transfer her. P. Ex. 6 at 1. back to note 15
                      16. P. Ex. 7 lists the names of CNAs who transferred Resident # 1 in July and August 2016 and the level of support the CNA provided the resident. With respect to P. Ex. 6, which is a log of various ADLs of Resident #1, Ms. Pillow testified that “the letters KM and 2” refer to “the initials of the CNA who documented . . . ” the ADLs. Tr. at 99-100; see CMS Ex. 2 at 2 (list of staff names, with only one name, Kimberley Monroe, that could be abbreviated by the initials, “KM”). Ms. Monroe, when questioned about the ADL logs in P. Ex. 6 that had been entered by “KM2” and whether she entered the data as “KM2,” responded, “I don’t recognize that.” Tr. at 92-93. And when asked “[w]hat does KM2 stand for” on cross-examination, Ms. Monroe responded, “I don’t remember.” Tr. at 92-93. Oddly, although Ms. Monroe was unable to recall on cross-examination that she had authored the ADL data pertaining to Resident #1 while logged in as “KM2,” she was able to recall a particular data entry at the time she submitted her written direct testimony, at which time she explained that “it was electronically charted that I transferred [Resident # 1] on August 12, 2016” but that she “did not transfer her on that day” and “intended to transfer her out of the bed, but could not find assistance at the time and I did not want to transfer her alone due to the day before, and I forgot to change it in my charting.” P. Ex. 11 at 3-4. Despite Ms. Monroe’s purportedly fading recall of the ADL support she provided to Resident # 1, P. Ex. 7 clearly documents that Ms. Monroe transferred Resident # 1 with a one-person physical assist on July 1, 2, 13, 17, 18, 20, 23, 26, and 31, 2016, and August 7 and 11, 2016. Likewise, P. Ex. 7 documents that Ms. Banga transferred Resident # 1 with a two-person assist on July 7, 14, 15, 16, 19, 22, and August 1, 6, and 8, 2016, and that Ms. Floyd transferred Resident # 1 with a two-person assist on July 1, 2, 5, 7, 13, 20, and 29, 2016, and with a one-person assist on July 12, 2016. back to note 16
                      17. I reiterate that Ms. Monroe testified that she charted a transfer that did not occur on August 12, 2016, and did not correct the purportedly erroneous entry. P. Ex. 11 at 3-4. back to note 17
                      18. Ms. Monroe testified that, the day after Resident # 1’s fall, she observed bruising on Resident # 1’s right arm and hand. P. Ex. 11 at 3. back to note 18
                      19. I reiterate that Ms. Carter signed the post-fall observations form on August 17, 2016, which is four days after Resident # 1’s transfer to the hospital. back to note 19
                      20. Ms. Mejia did not provide any information in response to the following question: “Is there any other clinical situations/events/conditions/medical or nursing conditions that could be a cause or contributing factor to why this resident fell? (Be as specific as possible).” P. Ex. 20 at 3. Further, the fall scene investigation report entered into evidence does not contain a witness account of the fall, nor does it provide any findings regarding the root cause of the fall. P. Ex. 20. back to note 20
                      21. As I previously addressed, Ms. Monroe testified that even though she charted that she transferred Resident # 1 on August 12, 2016, she did not transfer Resident # 1 at that time. P. Ex. 11 at 3-4. Ms. Monroe reported, contrary to the contemporaneous charting, that she “intended to transfer [Resident # 1] out of her bed, but could not find assistance at the time and I did not want to transfer her alone due to the day before . . . .” This statement is concerning, in that Ms. Monroe admitted that she left Resident # 1 in bed all day because she could not get assistance from another staff member to help her transfer a resident who had fallen during a transfer only one day earlier. P. Ex. 11 at 3-4. back to note 21
                      22. Dr. Steinberg, who is board certified in family medicine and hospice and palliative medicine, did not specifically identify the sort of trivial stress that would have caused bilateral comminuted femur fractures in a resident so susceptible to fractures that she could have broken both femurs in bed but not necessarily while falling. It is noteworthy that Petitioner returned Resident # 1 to her bed after her fall, and she remained in bed for more than 36 hours until Petitioner’s staff discovered a “deformity” of her right knee on August 13, 2016, that necessitated transfer to a hospital. It is simply dubious that Resident # 1 would sustain an undetectable hairline fracture in the fall, as Dr. Steinberg hypothesizes, and that the fracture would develop an obvious deformity nearly two days later after Resident # 1 had remained in bed since that time. P. Ex. 24 at 4-5; see Tr. at 161 (testimony by Dr. Steinberg that Resident # 1’s osteoporosis could result in a spontaneous fracture by just moving about in bed). Nonetheless, CMS inexplicably stipulated that Petitioner was in substantial compliance with 42 C.F.R. § 483.10(b)(11) (Tag F157), and I therefore need not make any findings regarding the origin of Resident # 1’s bilateral comminuted femur fractures. Nor is it necessary for me to make any findings regarding whether Petitioner failed to adequately assess Resident # 1 after her fall on August 11, 2016, and if so, whether that resulted in a failure to timely provide medical intervention for those significant injuries. back to note 22
                      23. I previously explained that I need not make a finding regarding whether Petitioner is culpable for Resident # 1’s bilateral comminuted femur fractures or whether Petitioner failed to timely provide medical intervention. Petitioner does not dispute that Resident # 1 had injuries as a result of the fall; Petitioner’s records show that Resident # 1 had a skin tear of her left thumb (P. Ex. 9) and Ms. Monroe testified that she later observed bruising of Resident # 1’s right arm and hand. P. Ex. 11 at 3-4. back to note 23
                      24. For instance, a logical intervention could have been to require a second person to assist with the transfer. back to note 24
                      25. Ms. Monroe testified that she used a hug maneuver to transfer Resident # 1 by herself. By her description of the hug maneuver, it does not appear that Ms. Monroe promoted independence by Resident # 1 by transferring her in such a manner. P. Ex. 11 at 3. Based on Ms. Monroe’s explanation of how she transferred Resident # 1 with this hug maneuver, Resident # 1 would wrap her arms around Ms. Monroe’s neck and allow Ms. Monroe to perform the bulk of the transfer. back to note 25
                      26. I need not make any findings based on Ms. Monroe’s testimony, which focuses on her allegation that she intercepted Resident # 1’s fall. It makes no difference, for purposes of section 483.25(h), whether Ms. Monroe intercepted Resident # 1’s fall; the evidence is clear that Ms. Monroe attempted to transfer Resident # 1 from a bed to a wheelchair, and Resident # 1 ended up on the floor. I have reservations about the veracity of Petitioner’s account of the August 11, 2016 fall for the following reasons: 1) Resident # 1 had bilateral comminuted femur fractures, with obvious deformity; 2) Petitioner provided inconsistent accounts of how the fall transpired (i.e., Resident # 1 fell because she was weak versus Resident # 1 fell because she failed to cooperate); 3) Petitioner failed to submit any contemporaneous statement by Ms. Monroe regarding the fall; 4) Ms. Monroe refused on cross-examination to acknowledge she entered the ADL observations into the ADL log; and 5) Ms. Monroe admitted that she did not perform a transfer with a two-person assist on August 12, 2016, even though she had recorded the transfer in Petitioner’s computer system. Nonetheless, I need not make credibility findings regarding these issues because Petitioner does not dispute that Resident # 1 landed on the floor rather than being seated in her wheelchair when Ms. Monroe transferred her on August 11, 2016. back to note 26
                      27. Ms. Monroe’s inability to find a second CNA the day after a staff-involved fall, when I presume Petitioner would have paid special attention to Resident # 1, does not foster confidence that Petitioner’s CNAs could readily obtain the assistance of other CNAs when deemed necessary. back to note 27
                      28. I reiterate that neither party addressed the inflation-adjusted penalty range that was in effect at the time the deficiency was cited. back to note 28 Back to top
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