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                              DuPage Care Center, DAB CR5576 (2020)
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DuPage Care Center, DAB CR5576 (2020)








  
  
    

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





DuPage Care Center,
	(CCN: 145050),
	Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-17-940Decision No. CR5576March 30, 2020

        
              
    

      DECISION
Petitioner, DuPage Care Center, is a long-term care facility located in Wheaton, Illinois, that participates in the Medicare program.  Over a period of eight days, four of its residents fell while staff were transferring them; and three of them were seriously injured.  Following a complaint investigation, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and imposed a $710 per-day civil money penalty for 28 days of substantial noncompliance.  Petitioner has appealed, and CMS moves for summary judgment.
For the reasons set forth below, I grant CMS’s motion; the undisputed evidence establishes that the facility was not doing everything possible to minimize the risk of accidents and was therefore not in substantial compliance with Medicare program requirements, specifically 42 C.F.R. § 483.25(d).  The undisputed evidence also establishes that the penalty imposed is reasonable.
Page 2
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 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, responding to a complaint that a resident had been injured during a transfer, a surveyor from the Illinois Department of Public Health (state agency) went to the facility to investigate.  While there, he discovered additional instances of residents falling during transfers, and, in some cases, suffering serious injuries.  He completed his investigation on March 24, 2017.  CMS Ex. 1.  Based on his 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).  CMS Exs. 1, 3.
Thereafter, CMS determined that the facility returned to substantial compliance on April 21, 2017.  CMS Exs. 3, 6.  CMS has imposed against the facility a penalty of $710 per day for 28 days (March 24-April 20, 2017) of substantial noncompliance (total penalty:   $19,880).  CMS Ex. 3.
Petitioner appeals, and CMS has moved for summary judgment.
With its pre-hearing brief and motion for summary judgment (CMS MSJ), CMS submits 21 exhibits (CMS Exs. 1-21).  With its pre-hearing brief and opposition to CMS’s motion (P. Br.), Petitioner submits ten exhibits (P. Exs. A-J).
Page 3
Issues
As a threshold matter, I consider whether summary judgment is appropriate.
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 – $710 per day – 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 & 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*, 477 U.S. at 322).  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 & 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.”  *W. Tex. LTC Partners, Inc.*, DAB No. 2652 at 6 (2015), *aff’d, W. 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*, 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
Page 4
in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions.  *W. Tex. LTC Partners, Inc.*, DAB No. 2652 at 6-7 (2015); *cf. Guardian*, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not 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 & Human Servs.*, 619 F.3d 453, 457 (5th Cir. 2010)); *see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs.*, 604 F.3d 445, 449 (7th Cir. 2010).1
  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) (now section 483.25(d)).2
  The court sustained the administrative law judge’s granting summary judgment in CMS’s favor because the petitioner/nursing home did not
Page 5
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 . . . .”  *Fal-Meridian*, 604 F.3d at 451.
Here, CMS has come forward with evidence establishing that the facility’s nurse aides disregarded those provisions of the resident care plans that addressed the methods the facility deemed necessary to prevent accidents and keep the residents safe.  For its part, Petitioner concedes that its staff failed to follow the care plans but justifies their actions by attacking the effectiveness of the care plans themselves.  As a matter of law, a facility’s unjustified failure to implement the procedures it has specifically identified as necessary to keep a resident safe establishes that it was not doing everything possible to minimize the risks of an accident and puts the facility out of substantial compliance with section 483.25(d).
***1. CMS is entitled to summary judgment because the undisputed evidence establishes that, by disregarding resident care plans, facility staff failed to do everything possible (within the meaning of 42 C.F.R. § 483.25(d)) to prevent accidents.3***
**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 remain 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 sub nom. 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.  42 C.F.R. § 483.25(d); *Briarwood*, DAB No. 2115 at 5; *Windsor Health Care Ctr.*, DAB No. 1902 at 5 (2003), *aff’d sub nom. Windsor Health Care Ctr. v. Leavitt*, 127 F. App’x 843 (6th Cir. 2005).
Page 6
**Resident 2 (R2)**.  R2 was an 86-year-old man, initially admitted to the facility on August 21, 2014, suffering from a long list of impairments, including Alzheimer’s disease, polyneuropathy, diabetes, hypertension, and an anxiety disorder.  CMS Ex. 14 at 40.  He was severely cognitively impaired.  CMS Ex. 14 at 63.  He was not able to walk or transfer safely, requiring a one-person assist, and he generally used a wheelchair for locomotion.  CMS Ex. 14 at 26, 66, 88.
He had a long but erratic history of falls:
On the morning of January 17, 2015, staff found him sitting on the floor next to his bed.  He reported that he slipped and fell and could not get up;
	On August 5, 2015, staff again found him sitting on the floor at the foot of his bed, between the bed and sink.  He was confused and told them that he lost his balance and slipped while getting ready to go to work;
	On August 30, 2015, his bed alarm went off, and staff found him on the floor beside his bed.  They reported that he lost his balance and fell;
	On September 10, 2015, staff found him lying on the floor on his left side; his “regular chair” and his walker were “with him”;
	At 5:00 p.m. on November 13, 2015, staff found him sitting on the floor in the lobby; he did not know what happened;
	At 5:15 p.m. on January 13, 2016, staff found him sitting on the floor in the hallway without his walker.  He reported that he “just slipped”;
	At 7:30 p.m. on July 5, 2016, staff found him sitting on the floor; he told them that he wanted to get up;
	At 9:00 p.m. on July 14, 2016, staff found him sitting on the floor; he said that he wanted to walk;
	On August 10, 2016, staff found him sitting on the floor in front of his wheelchair;
	On October 26, 2016, staff found him sitting on the floor with his back against his bed mattress; the bed alarm was activated; he wore his shoes; he told staff to leave him alone.  Staff described him as “resistive to care[].”Page 7
CMS Ex. 14 at 42-43.4
The parties agree that R2 could not safely transfer himself without assistance; he required a sit-to-stand lift (referred to as an E-Z stand lift) with one-person assist.  CMS Ex. 14 at 16, 66, 88; CMS Br. at 4; P. Br. at 7; *see* CMS Ex. 19 (E-Z stand operator’s instructions); *but see*CMS Ex. 14 at 65 (indicating that, as of February 14, 2017, the resident was requiring a two-person physical assist for transfers).
**R2’s care plan**.  According to R2’s care plan, he was at “high risk” for falls and injury related to his vascular dementia with depression, psychosis, anxiety, hypertension, diabetes, vitamin D deficiency, and decreased safety awareness.  He had periods of confusion and disorientation.  He was agitated, restless, and paranoid.  Significantly, the care plan describes him as non-compliant and resistive to care; he could be verbally and physically abusive to staff.  He attempted to transfer himself and to ambulate without assistance.  CMS Ex. 14 at 42.
To protect the resident from injury during transfers, the care plan directs staff *to avoid sudden bumps or jarring*.  CMS Ex. 14 at 47.  When he shows signs of agitation and resists care, the plan *repeatedly directs staff to leave him and re-approach 15-20 minutes later*.  CMS Ex. 14 at 43, 45, 52.
**March 12, 2017 incident**.  On March 12, 2017, Nurse Aide Francis Francisco (referred to as E6) was assigned to care for R2.  As the nurse aide attempted to transfer the resident from his bed to his wheelchair, using an E-Z stand lift, R2 resisted – he kicked and pushed the E-Z stand.  With much difficulty, Nurse Aide Francisco managed to attach the lift harness.  After R2 kicked the lift stand “in a twisting manner,” the nurse aide managed to put him into his wheelchair.  In the process, he heard a “pop,” and the resident started complaining of knee pain.  CMS Ex. 12 at 1-2; CMS Ex. 14 at 34; *see* P. Ex. J (Francisco Decl.).
Nurse Aide Francisco explained at the time that he was unable to ask for help because only one other nurse aide was assigned to the unit (instead of the usual four).5
  He felt
Page 8
that he could not wait until the resident calmed down because he wanted to get him ready for church, although he concedes that he should have waited.  CMS Ex. 12 at 2.
By the following day, March 13, R2’s pain was severe, and he was unable to move his leg.  The facility sent him to the emergency room.  CMS Ex. 14 at 19.  X-rays of his knee were negative.  CMS Ex. 14 at 4.6
  Later, a hip x-ray showed that his hip had been fractured.  CMS Ex. 14 at 8.  On March 14, R2 underwent surgery to repair the fracture.  CMS Ex. 14 at 2-3.
At the time of the survey, facility staff were transferring R2 with a full mechanical lift and two-person assist (appropriate for someone recovering from a broken hip); however, the facility had not updated its care guide to reflect that change.  CMS Ex. 12 at 19; CMS Ex. 21 at 4 (Dyavanapalli Decl. ¶¶ 23, 24).
**Resident 4 (R4)**.  R4 was a 59-year-old woman who had suffered a stroke (cerebral infarction), leaving the left side of her body paralyzed (hemiplegia).  She was admitted to the facility on October 4, 2016.  CMS Ex. 16 at 1.
R4 had a significant history of falls:
On December 8, 2016, she “partially fell” while trying to stand to stretch her left leg to alleviate pain from muscle spasms;
	At 10:30 p.m. on December 9, 2016, staff found her lying on her back on the floor next to her bed.  She told them that she rolled over, lost her balance and rolled out of bed;
	On December 18, 2016, staff again found R4 sitting on the floor mat at the right side of her bed.  She said that she had reached for her eyeglasses, which were on the floor, and rolled out of bed;
	On December 20, 2016, staff found her lying on the floor at the side of her bed;
	On December 21, 2016, staff found her lying on the floor mattress, having rolled out of bed;
	At 9:50 a.m. on January 5, 2017, staff found R4 lying on the floor mat next to her bed.  She told them that she had been trying to grab her slippers;Page 9
At 1:45 a.m. on January 15, staff again found R4 lying on her floor mattress; she told them that she had been trying to untangle her blanket;
	At 11:05 p.m. on January 31, 2017, a nurse aide observed her roll out of bed onto her floor mat;
	At 10:30 p.m. on February 4, 2017, staff found her sitting on her floor mat;
	At 2:55 p.m. on February 6, 2017, as a nurse aide was about to transfer her from bed to wheelchair, R4, who had been sitting on the edge of the bed, slipped off to the floor;
	At 1:35 a.m. on February 12, 2017, a nurse aide found R4 on the floor beside her bed.  She said that she was trying to roll over, but she rolled out;
	At 2:45 p.m. on February 23, staff found her leaning on the side of the bed.  She reported that she had been trying to sit on the side of her bed when she slid off;
	At 4:50 a.m. on March 8, 2017, staff again found her lying by the side of her bed.  She said that she had rolled out and that her left knee got caught in the bed frame.CMS Ex. 16 at 7-8.
**R4’s care plan**.  R4’s care plan identified her as a “high risk for falls” because of her “mobility deficit” following her cerebrovascular accident (stroke).  She had suffered multiple falls at her home, fracturing her ribs from a fall in March 2016.  CMS Ex. 16 at 8.  Among its interventions, the care plan directed staff to transfer her using an E-Z lift stand with one-person assist.  CMS Ex. 16 at 10, 19.
**March 18, 2017 incident**.  Notwithstanding R4’s care plan, on the morning of March 18, the nurse aide caring for R4 was attempting to get her up *without using the lift*.  She dropped her on the floor and apparently fell on top of her.  Fortunately, the resident was not injured.  CMS Ex. 12 at 5; CMS Ex. 16 at 21.
The facility’s medical director opined that the agency aide caring for R4 should have used the lift since the resident had suffered a cerebrovascular accident.  CMS Ex. 12 at 4.
**The facility’s response**.  Petitioner concedes that the nurse aides caring for R2 and R4 did not follow resident care plans but maintains that care plans “serve as guidelines for resident care, and strict compliance with a resident’s care plan is not required.”  P. Br.
Page 10
at 7.  Even if this were so (and, for the most part, it is not), the nurse aides here did not deviate slightly from the care plans; they disregarded critical elements of those plans.
Moreover, the methods a facility chooses in order to prevent accidents and protect residents are reflected in its policies, assessments, and care plans.  *Green Oaks Health & Rehab. Ctr.*, DAB No. 1567 at 5 (2014).  The facility’s assessment of a resident’s needs and the appropriate responses constitute persuasive evidence of what is needed to keep the resident safe.  *Harlan Nursing Home*, DAB No. 2174 at 5-6 (2008); *Golden Age Skilled Nursing & Rehab. Ctr.*, DAB No. 2026 at 12 (2006).  The Departmental Appeals Board has long emphasized that summary judgment is appropriate when (as here) the undisputed facts show that the facility did not follow its own care plan in providing supervision or assistance devices to prevent accidental injury.  *Guardian*, DAB No. 1943 at 23, *citing Lebanon Nursing & Rehab. Ctr.*, DAB No. 1918 at 9; *Windsor Health Care Ctr.*, DAB No. 1902.
If staff, in their *professional* judgment, opt to deviate from the chosen methods, they must document that judgment and give reasons.  Because they did not, I’m left with two possibilities:  either staff were not aware of the plan, or they simply disregarded it.  *See Oxford Manor*, DAB No. 2167 at 5-6 (2008); *Guardian*, DAB No. 1943 at 23 (holding that, to avoid summary judgment, the facility must produce evidence suggesting that it had a reasonable excuse for not following the care plan).  Ad hoc deviations from a resident’s care plan violate the regulation, which requires that care and services be provided “in accordance with the comprehensive assessment and plan of care.”  42 C.F.R. § 483.25.
With respect to R2 specifically, Petitioner suggests that the care plan instructions were essentially useless because R2 “exhibits restive behavior during virtually all his transfers.”  P. Br. at 7.  Petitioner cites to no evidence in support of this proposition; in fact, the evidence Petitioner relies on *defeats* its claim.  P. Br. at 7, citing CMS Ex. 12 at 3-4; CMS Ex. 14 at 43, 45, and 52.  Petitioner cites to an interview with the facility’s medical director, who criticized the nurse aide’s actions, noting that, when it was apparent that R2 would not cooperate, staff should have left him alone and approached him later.  CMS Ex. 12 at 4, 10.  Petitioner also cites to the care plan itself, which identifies the problem and directs staff to leave the resident alone and return later.  CMS Ex. 14 at 43, 45, 52.  I cannot reasonably infer that this evidence establishes a dispute as to the appropriateness of the nurse aide disregarding the care plan instructions.  To the contrary, it shows that leaving the resident and returning later was, in the facility’s view, an effective means for keeping the resident safe.
Petitioner does not rely on the written declaration of Nurse Aide Francisco (*see* P. Br. at 7-9), who, at the time of the incident, did not question the care plan instructions and
Page 11
acknowledges that he should have followed them.7
  CMS Ex. 12 at 2.  In his written declaration (prepared for these proceedings), however, he claims (for the first time) that he “determined that no matter how much time [elapsed] between transfer attempts, R2’s behavior pattern would not have significantly changed.”  P. Ex. J at 3 (Francisco Decl. ¶ 10).  Even if Petitioner had relied on this testimony (which it apparently did not), a facility’s failure to implement its own care plan “is not mitigated by its after-the-fact disparagement of the measures it adopted as useless to prevent falls.”  *Avalon Place Trinity*, DAB No. 2819 at 26-27 (2017), *aff’d*, *Avalon Place Trinity v. U.S. Dep’t of Health & Human Servs.*, 761 F. App’x 407 (5th Cir. 2019).  Where the facility does not follow its own determination for managing risk, it “may be held to the consequences.”  *Id.* at 27.
A facility avoids summary judgment by producing contemporaneous documentation that professional staff had sound reasons for deviating from the facility’s chosen methods.  *See Oxford Manor*, DAB No. 2167 at 5-6.  The contemporaneous documentation here unquestionably establishes that it did not have “sound reasons” for this deviation.
Although Petitioner does not refer to this testimony either, both the facility’s Director of Nursing (DON) and Nurse Aide Francisco assert that he “believed he could safely transfer R2.”  P. Ex. I at 2 (Royster Decl. ¶ 8); P. Ex. J at 3 (Francisco Decl. ¶ 11).  I accept this as true but not material.  No one has suggested that Nurse Aide Francisco intended to injure the resident.  But, to keep the resident safe, he and other staff were bound to follow the resident care plan.
With respect to R4, Petitioner notes that the nurse aide, who did not work for the facility but had been supplied by an agency, had been trained on the facility mechanical lift policy and given a care sheet with R4’s care plan interventions; she did not use the lift.  Petitioner, nevertheless, argues that, because CMS has not shown *why* the nurse aide failed to follow the care plan, it hasn’t established “the absence of a genuine issue of material fact.”  P. Br. at 10-11.8
  Understandably, Petitioner offers no authority for this
Page 12
position, which turns on its head the relative burdens here.  CMS has met its prima facie burden by establishing that staff failed to follow the resident care plan.  If the nurse aide had a sound reason for disregarding the plan instructions, *Petitioner* must come forward with that explanation (notably in the form of contemporaneous documentation).  *Oxford Manor*, DAB No. 2167 at 5-6.
Thus, the undisputed evidence establishes that facility staff did not follow the instructions in the resident care plans that were meant to keep the residents safe and prevent accidents.  Petitioner produces no contemporaneous documentation suggesting reasonable excuses for the staff’s disregard of the care plans.  The facility was therefore not doing everything possible to minimize the risk of accidents and was not in substantial compliance with 42 C.F.R. § 483.25(d).
***2. CMS is entitled to summary judgment because the undisputed evidence establishes that the penalty imposed is reasonable.***
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 penalty of $710 per day, which is at the very low end of the range for per-day penalties ($105 to $6,289).  42 C.F.R. §§ 488.408(d)(1)(iii); 488.438(a)(1)(ii);
Page 13
45 C.F.R. § 102.3; *see* 82 Fed. Reg. 9174, 9182 (Feb. 3, 2017).9
  Considering the relevant factors, these penalties are reasonable.
CMS offers no evidence of the facility’s history.
Petitioner does not claim that its financial condition affects its ability to pay.
Applying the remaining factors, I have discussed above the facility’s failures to keep its residents safe.  R2 and R4 were vulnerable.  Based on the resident assessments, the facility’s professional staff determined what actions were necessary to keep these vulnerable residents safe; they incorporated their instructions into the resident care plans.  The nurse aides knew (or should have known) what those instructions were.  Yet – not once, but twice – a nurse aide chose to disregard the resident care plans, in one case, with serious results.  Because the nurse aides did not exercise the necessary levels of care and attentiveness to keep the residents safe, the facility is culpable, and the penalty imposed is reasonable.
The undisputed evidence thus justifies the penalty amount, and CMS is therefore entitled to summary judgment on this issue.  *Senior Rehab & Skilled Nursing Ctr.*, DAB No. 2300 at 20 (2010).
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 R2 and R4 received 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 relatively small penalty imposed – $710 per day – is reasonable.


          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge
      1. 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 judgment 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 1
                      2. 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. back to note 2
                      3. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision. back to note 3
                      4. Notwithstanding this history, R2’s quarterly fall risk assessment, dated March 9, 2017, indicates that he is at low risk for falls.  CMS Ex. 14 at 1.  While disturbingly inconsistent with his care plan, that document does not eliminate R2’s very real history of falls nor his particular vulnerability to falls and injury while being transferred, which the parties do not dispute. back to note 4
                      5. Although Nurse Aide Francisco perceived (correctly or incorrectly) that the facility did not have adequate staff at the time of the incident, CMS does not base its deficiency findings on the facility’s staffing levels. back to note 5
                      6. The facility’s medical director later opined that R2’s hip should have been x-rayed at the same time as his knee since hip problems often present as knee pain. CMS Ex. 12 at 4, 10. back to note 6
                      7. Not only did Nurse Aide Francisco not question the care plan instructions, but he justified not discontinuing his transfer of R2 and returning later with the need to get R2 to church.  P. Ex. J at 3 (Francisco Decl. ¶ 7); CMS Ex. 12 at 2 (“. . . I could not wait bec[ause] I have to get up Res to take to church.”).  Petitioner echoes this justification in its brief:  “Knowing that he did not have sufficient time to stop and re-approach, E6 determined that R2 was not so restive . . . .”  P. Br. at 8. back to note 7
                      8. In fact, CMS refers to the DON’s speculation that the agency nurse aide did not know how to use the lift.  In her written declaration, DON Royster does not deny making that statement nor claim that the nurse aide, in fact, knew how to use the lift.  She simply points to a checklist (P. Ex. H) and asserts that because the aide was given a packet of information, she was informed of what she had to do to keep the resident safe. P. Ex. I at 3-4 (Royster Decl. ¶¶ 11-15). back to note 8
                      9. Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, on May 16, 2017.  See CMS Ex. 3; 82 Fed. Reg. at 9174-75. back to note 9 Back to top
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