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                              Medford Multicare Center for Living, DAB CR5792 (2021)
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Medford Multicare Center for Living, DAB CR5792 (2021)








  
  
    

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





Medford Multicare Center for Living,
(CCN: 33-5840),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-19-80Decision No. CR5792January 12, 2021

        
              
    

      DECISION

Petitioner, Medford Multicare Center for Living (Petitioner or facility), is a long-term care facility located in Medford, New York, that participates in the Medicare program.  Following a complaint survey completed on January 17, 2018, by the New York Department of Health (NYDOH), the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and imposed a $13,005 per-instance civil money penalty (CMP).  In addition to the per-instance CMP, the facility was prohibited from offering a Nurse Aide Training and Competency Program (NATCEP) for a two-year period and received a mandatory denial of payment for new admissions (DPNA) from April 17, 2018, through April 19, 2018.1
  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 Petitioner was not doing everything possible to minimize the risk of accidents and that Petitioner failed to prevent neglect.  Petitioner was therefore not in substantial compliance with Medicare program requirements, specifically 42 C.F.R.

**Page 2**

§ 483.25(d)(1)-(2) and § 483.12(a)(1).  The undisputed evidence also establishes that the penalty imposed is reasonable.

I.  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, following a complaint survey, the NYDOH found that a resident had been injured during a transfer on December 19, 2017.  CMS Ex. 1.  Based on this survey, CMS determined that the facility was not in substantial compliance with Medicare participation requirements:  42 C.F.R. § 483.25(d)(1)-(2) (Tag F0689 Free of Accident Hazards/Supervision/Devices) and 42 C.F.R. § 483.12(a)(1) (Tag F0600 Free from Abuse and Neglect), both 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 Ex. 2.

CMS imposed a $13,005 per-instance CMP.  In addition to the per-instance CMP, the facility was prohibited for a two-year period from offering any NATCEP.  An additional penalty included a mandatory DPNA from April 17, 2018 through April 19, 2018.

Petitioner appeals, and CMS has moved for summary judgment.

With its pre-hearing brief and motion for summary judgment (CMS MSJ), CMS submits 17 exhibits (CMS Exs. 1-17).  With its pre-hearing brief and opposition to CMS's motion (Petitioner's Br.), Petitioner submitted 14 exhibits (P Exs. 1-14).

**Page 3**

II.  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)(1)-(2) and 42 C.F.R. § 483.12(a)(1); and
	If the facility was not in substantial compliance, is the penalty imposed – $13,005 per instance – reasonable.Petitioner also challenges the deficiency cited under section 483.21(b)(1) (Tag F0656).  Request for Hearing; Petitioner's Br. at 16-17.  I have no authority to review that deficiency because CMS did not impose a penalty for it; CMS specifically imposed a per-instance CMP for the deficiencies cited under sections 483.25(d)(1)-(2) and 483.12(a) (Tags F0689 and F0600) only.  CMS Ex. 2.  A facility may challenge a finding of noncompliance for which CMS imposes one of the penalties specified in 42 C.F.R. § 488.406.  42 C.F.R. § 498.3(b)(13); *see* 42 C.F.R. § 498.3(a).  A facility has no right to a hearing unless CMS imposes one of the specified remedies.  *The Lutheran Home – Caledonia*, DAB No. 1753 (2000); *Schowalter Villa*, DAB No. 1688 (1999); *Arcadia Acres, Inc.*, DAB No. 1607 (1997); *see San Fernando Post Acute Hosp.*, DAB No. 2492 at 7-8 (2012).  The remedy, not the citation of a deficiency, triggers the right to a hearing.  *Schowalter Villa*, DAB No. 1688; *Arcadia Acres*, DAB No. 1607.

III.  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

**Page 4**

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 sub nom. 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); *see also* *Brightview*, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party's legal conclusions.  *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).2
  Nevertheless, there has been some confusion about applying such well-founded principles of civil litigation to these proceedings.  Judge Posner of the Seventh Circuit Court of Appeals set aside such confusion:  "All it means for a decision to be based on a grant of summary judgment is

**Page 5**

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)).3
  The court sustained the administrative law judge's granting summary judgment in CMS's favor because the petitioner/nursing home did not tender "evidence that, if believed, would show that it had done everything possible (within the meaning of the regulation) to minimize the risks of an accident."  *Fal-Meridian*, 604 F.3d at 451.

CMS has come forward with evidence establishing that the facility's Nurse Aide (CNA1) did not follow the facility's Hoyer lift policy and the provisions of the resident's comprehensive care plan (CCP) that addressed the practices and methods the facility found necessary to prevent accidents and to keep its residents safe.  The facility also had a policy for Resident Abuse, Mistreatment, Neglect and Exploitation.  CMS Ex. 5.  An additional facility policy entitled Activities of Daily Living was in effect, wherein the facility defined the term bed mobility.  CMS Ex. 4.  Petitioner concedes that its employee, CNA1, did not follow the CCP and the facility policies for these procedures and patient safeguards.  However, the facility argues that it had done all that it could to prevent such a foreseeable accident when staff utilized a Hoyer lift or performed bed mobility.

*1.  CMS is entitled to summary judgment because the undisputed evidence establishes that, by disregarding the facility's policies and the CCP, the facility staff failed to do everything possible (within the meaning of 42 C.F.R. § 483.25(d)) to prevent accidents.* 4

**Program requirement:**  42 C.F.R. § 483.25(d)(1)-(2) (Tag F0689).  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

**Page 6**

resident's comprehensive assessment and plan of care.  Act § 1819(b)(2).  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).

**Resident 1 (Resident or R1)**.  R1 was a 91-year-old individual, initially admitted to the facility on June 2, 2016, suffering from many diagnoses including Diabetes Mellitus, Pseudobulbar affect, anxiety disorder, aphasia, and delusional disorders.  CMS Ex. 6 at 1.  He was later classified as severely cognitively impaired as indicated by a Minimum Data Set dated December 6, 2017.  CMS Ex. 7 at 2.  R1 required total assistance of two persons with bed mobility, transfers, dressing, toilet use, and personal hygiene, having impaired range of motion of his bilateral upper and lower extremities.  CMS Ex. 7 at 3.  A Fall Risk Assessment completed on his admission documented he was at risk of falls.  CMS Ex. 9.

His CCP dated June 4, 2016, documented he was at risk of falls and injury related to his history of falls, loss of voluntary movement, impaired balance, impaired memory, impaired gait, and dementia.  CMS Ex. 10 at 1.  Interventions included a bed alarm, chair alarm, low bed, floor mats, and instructions for safety measures including transfer techniques, proper footwear and locking of wheelchair.  The CCP indicated he was non-ambulatory with incontinence of bowel and bladder.  Interventions included mechanical lift with assist of two persons.  The CCP for the resident was updated on July 13, 2017, requiring total assist of two persons with bed mobility, transfers, dressing, toilet use, personal hygiene and bathing.  CMS Ex. 10 at 7.

R1 fell, rolling from his bed on October 30, 2016, sustaining a laceration above the left eyebrow that required a period of hospitalization.  CMS Ex. 10 at 4.  On May 6, 2017, he was noted to have his head resting on the floor with no injury noted.  The resident rolled from his bed to the floor mat on September 7, 2017.  *Id.*  The updated care plans through December 7, 2017, continued the interventions as noted without additional changes.  CMS Ex. 10.

**Page 7**

The facility also adopted other policies including a "Hoyer Lifter" policy, CMS Ex. 3, and one entitled "Activities of Daily Living" containing the facility's definition of bed mobility.  CMS Ex. 4.  An in-service training document entitled "Hoyer – Lesson Plan" is included in the documents submitted.  CMS Ex. 8.  All polices and training materials for use of the Hoyer lift indicate, at a minimum, a two-person assist is required.

**December 19, 2017 incident**.  Despite the resident's care plan and numerous facility policies, on the morning of December 19, 2017, CNA1 was attempting, without assistance, to place a Hoyer lift pad/strap underneath the resident after performing activities of personal care.  CMS Ex. 14 at 3.  The resident fell from the bed, sustaining a laceration above the left eyebrow.  CMS Ex. 10 at 4.  After a short time, he was transported to a hospital where he was admitted on December 19, 2017.  The resident remained hospitalized until he passed away on December 25, 2017. ****CMS Ex. 13 at 3.

**The facility's response**.  Petitioner concedes that CNA1 did not follow the CCP nor the facility's Hoyer lift policy.  However, the facility argues it had done everything that it could to prevent the incident.  The facility indicates it had policies for Hoyer lift with protocols requiring at least two employees when using the lift.  Additionally, the facility points to its policies for abuse and neglect, bed mobility, the resident's care plan, and recent in-service training on these policies attended by CNA1.  Petitioner's Br. at 8-9.

The facility's Director of Nursing stated in the survey interview and her sworn declaration that CNA1 should have known that using the Hoyer lift required a two-person assist.  CNA1 had recently completed Hoyer lift certification training on December 4, 2017.  That training emphasized the facility policy that use of the Hoyer lift always required, at a minimum, a two-person assist.  P. Ex. 13.  If these statements are taken as true, then CNA1 disregarded the facility policies and the resident's CCP.

The manner in which a facility chooses to prevent accidents and protect residents are reflected in its policies, assessments, and care plans.  *Green Oaks Health & Rehab. Ctr.*, DAB No. 2567 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).

Because CNA1 did not follow the facility policies nor the resident's CCP, she was either not aware of the care plan and policies or disregarded them.  *See Oxford Manor*, DAB

**Page 8**

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).  Undocumented reasons for deviating 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.

The facility's investigative interview with CNA1 indicated she had finished performing personal care for the resident and was attempting to place the Hoyer pad/strap under the resident.  It was her belief that, as she was performing activities of personal care, she did not need the assistance of another staff member when attempting to use the Hoyer lift.  However, in doing so, she did not follow the instructions of the facility's Hoyer lift policy that mandated the use of at least a two-person assist.  Further, CNA1 did not follow the CCP instructions that reinforced the facility policy that a two-person assist was required when performing bed transfers.  CMS Ex. 14.

CMS has met its prima facie burden by establishing that its employee, CNA1, failed to follow the CCP and the facility's own Hoyer lift policy.  If CNA1 had a sound reason for disregarding the plan instructions, Petitioner must come forward with that explanation with contemporaneous documentation.  *Oxford Manor*, DAB No. 2167 at 5-6.

Where a facility has a policy or a resident's care plan requiring staff to take specific actions when caring for a resident, those actions are the facility's own determination of what it has determined as essential to attain or maintain the resident's "'highest practicable physical, mental, and psychosocial well-being' as required by the overarching quality-of-care requirement."  *Heritage Plaza Nursing Ctr.*, DAB No. 2829 at 6 (2017).

Petitioner argues that the facility should not be held accountable for the independent actions of CNA1 – despite the assessments, plans, and records available to her – to use a two-person assist for the Hoyer lift and, by doing so, CMS is applying a strict liability standard.  Petitioner's Br. at 10-11.  However, it is well-settled that a facility "cannot disavow responsibility for the actions of its employees," through which it acts.  *Springhill Senior Residence*, DAB No. 2513 at 14 (2013);*Beverly Health Care Lumberton*, DAB Ruling No. 2008-5 (Denial of Petition for Reopening Decision No. 2156) at 6-7 (2008); *Emerald Oaks*, DAB No. 1800 at 7 n.3 (2001); *N.C. State Veterans Nursing Home, Salisbury*, DAB No. 2256 (2009).

The undisputed evidence establishes the facility employee did not follow the instructions in the CCP or the facility policy when using the Hoyer lift.  Those policies and the CCP were established by the facility to keep the resident safe and to prevent accidents.  Petitioner has produced no documentation to suggest a reasonable excuse for their staff's disregard of the policies and care plan.  The facility relies on the argument that CNA1

**Page 9**

acted on her own when not following the CCP, "Hoyer Lifter" Policy and recent in-service training for the lift that required a two-person assist when using the lift for resident care.  Petitioner argues that CNA1 stated, in the investigation summary of the incident, she was performing personal care and that those functions could be performed with a one person assist as indicated by the instructions in the patient chart.  However, the facility has made clear that, any time staff used the Hoyer lift, facility procedures required a two-person assist.  As shown in the CCP and nursing instructions, R1 required a two-person assist.  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 facility staff failed to provide a two-person assist to R1 during a Hoyer lift transfer in accordance with the facility's policies and the resident's CCP, which amounts to neglect and noncompliance with 42 C.F.R. § 483.12(a).*

**Program requirement:**  42 C.F.R. § 483.12(a)(1) (Tag F0600).  Service tag F0600 states that a resident has the right to be free from abuse and neglect.  Under the regulations, a resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation.  42 C.F.R. § 483.12(a).  The facility must not use verbal, mental, sexual or physical abuse, corporal punishment, or involuntary seclusion.  42 C.F.R. § 483.12(a)(1).  In addition to this regulatory standard, the facility had its own stated policy for abuse and neglect entitled "Resident Abuse, Mistreatment, Neglect and Exploitation," revised September 2017.  CMS Ex. 5.  According to the sworn declaration of the facility's Director of Nursing, the facility adopted the New York State definition for neglect, which is "failing to provide timely, consistent, safe, adequate and appropriate service, treatment and/or care to a resident of a residential care facility."  P. Ex. 13 at 4.  The policy also provided that the facility's employees and service providers were to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish or emotional distress.  CMS Ex. 5 at 8.

Petitioner cites the SOM to argue that the relevant inquiry under Tag F0600 is whether the facility had the requisite "structures and processes" in place to provide needed care and services.  Petitioner's Br. at 12-13.  Petitioner maintains that it had the requisite structures and processes, and Petitioner relies on the same arguments that it raised previously, including how the facility had appropriate policies and provided substantial training to CNA1 about what was necessary to safely transfer R1 using the Hoyer Lift.  Petitioner's Br. at 13-16.

It is difficult to accept Petitioner's argument that it provided adequate training to, and oversight of, its staff when CNA1 attempted to transfer R1 using a Hoyer lift by herself, in contravention of the facility's policies and the CCP.  The regulations clearly define

**Page 10**

"neglect" as "the failure of the facility, its employees, or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress."  42 C.F.R. § 488.301; *see also* P. Ex. 13 at 4 (facility's own policy defining neglect as "failing to provide timely, consistent, safe, adequate and appropriate service, treatment and/or care to a resident of a residential care facility.").  Here, the "service" R1 needed to avoid physical harm was adequate assistance during a Hoyer Lift transfer, which the facility did not provide.  The facility's failure to provide a two-person assist while transferring R1 using the Hoyer Lift therefore constituted neglect and put the facility out of substantial compliance with the requirement at 42 C.F.R. § 483.12(a).

*3.  CMS is entitled to summary judgment because the undisputed evidence establishes that the penalty imposed is reasonable.*

To determine whether a CMP is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  (1) the facility's history of noncompliance; (2) the facility's financial condition; (3) factors specified in 42 C.F.R. § 488.404; and (4) the facility's degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors in 42 C.F.R. § 488.404 include: (1) the scope and severity of the deficiency; (2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and (3) the facility's prior history of noncompliance in general and specifically with reference to the cited deficiencies.

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the section 488.438(f) factors.  I am neither bound to defer to CMS's factual assertions nor free to make a wholly independent choice of remedies without regard for CMS's discretion.  *Barn Hill Care Ctr.*, DAB No. 1848 at 21 (2002); *Cmty. Nursing Home*, DAB No. 1807 at 22 *et seq*. (2002); *Emerald Oaks*, DAB No. 1800 at 9 (2001); *CarePlex of Silver Spring*, DAB No. 1683 at 8 (1999).

Here, CMS imposes a per instance penalty of $13,005.  42 C.F.R. §§ 488.408(d)(1)(iv), 488.438(a)(2);****45 C.F.R. § 102.3 (2017); *see* 82 Fed. Reg. 9174, 9182-83 (Feb. 3, 2017).  Considering the relevant factors, the penalty is reasonable.

CMS offers no evidence of the facility's prior 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.  R1 was vulnerable and dependent on the facility for his care, safety, and welfare.  Based on the resident's assessments, the facility's professional staff determined

**Page 11**

what actions were necessary to keep this vulnerable resident safe by establishing policies and incorporating their instructions into the CCP.  CNA1 knew (or should have known) what those instructions were by reading the chart instructions for the resident and from recently completing the Hoyer lift training and certification.  However, CNA1 chose to disregard the facility polices and the CCP with a tragic incident as the result.  Because CNA1 did not follow the facility's policies and CCP put in place to keep this vulnerable resident safe from accident and neglect, 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).5

IV.  Conclusion

For all of these reasons, I grant CMS's motion for summary judgment.  The undisputed evidence establishes that the facility was not in substantial compliance and the $13,005 per-instance penalty is reasonable.


          /s/
        Wallace Hubbard

                      Administrative Law Judge
      1. The originating case notice of August 30, 2018 states the nonpayment period was a mandatory three-month period, but only listed three days, April 17, 2018 through April 19, 2018.  CMS Ex. 2 at 1. back to note 1
                      2. The courts that have considered applying principles of summary judgment to Medicare administrative proceedings have carefully avoided any suggestion that deciding a case on summary 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 2
                      3. The regulations governing long-term care facilities have been revised since the Seventh Circuit issued its decision in Fal-Meridian; the requirement that facilities minimize the risk of accidents is now found at section 483.25(d).  81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (July 13, 2017).  However, the substance of the "quality of care" requirements – which are also statutory – has not changed, so decisions that pre-date the regulatory changes remain valid. back to note 3
                      4. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision. back to note 4
                      5. Petitioner also challenges the mandatory DPNA, imposed from April 17, 2018 through April 19, 2018, but Petitioner does so based on its argument that it was in substantial compliance with the cited requirements.  Petitioner's Br. at 18-19.  Given the undisputed evidence that Petitioner was out of substantial compliance with the cited requirements, however, Petitioner's challenge is without merit back to note 5 Back to top
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