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                              Rehab at River's Edge, DAB CR5704 (2020)
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Rehab at River's Edge, DAB CR5704 (2020)








  
  
    

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





Rehab at River’s Edge,
(CCN: 31-5140),
Petitioner,

v.

Center for Medicare & Medicaid Services.
Docket No. C-18-902Decision No. CR5704September 2, 2020

        
              
    

      DECISION

Petitioner, Rehab at River’s Edge, is a skilled nursing facility located in Raritan, New Jersey, that participates in the Medicare program.  On March 9, 2018, it was notified that it was found out of compliance with participation requirements following a survey on June 22, 2017.  The facility was cited at federal tag F323 at a scope and severity level “G” for noncompliance with 42 C.F.R. § 483.25(d)(1)-(2), (n)(1)-(3) (Free of Accident Hazards/Supervision/Devices) and tag F371 at a scope and severity level “F” for noncompliance with 42 C.F.R. § 483.60(i)(1)-(3) (Food Procure, Store/Prepare/Serve-Sanitary).  Centers for Medicare and Medicaid Services (CMS) Exhibit (Ex.) 2.  A $1,415.00 per day civil money penalty (CMP) was imposed for 29 days beginning June 22, 2017, and continuing through July 20, 2017, for a subtotal of $41,035.00, based on the deficiency at F323.  A $610.00 per day CMP was imposed for 32 days of continuing non-compliance beginning July 21, 2017, through August 21, 2017, for a subtotal of $19,520.00, based on the deficiency at F371.  The total CMP accrued was $60,555.00.  Petitioner filed a timely request for hearing on May 9, 2018.

On May 17, 2018, Judge Bill Thomas issued an Acknowledgment and Prehearing Order (APHO), setting forth pre-hearing procedures.1
  Included in that APHO was the directive

Page 2

to each party to include in its pre-hearing exchange any objection it had to any of the proposed exhibits or witnesses and to affirmatively request cross-examination of any proposed witnesses.  No objections to the proposed exhibits or witnesses were received, and neither party affirmatively requested cross-examination of the opposing party’s proposed witnesses.

On October 11, 2018, Respondent, CMS, filed a Pre-Hearing Brief and Motion for Summary Judgment (Pre-Hearing Brief).  In a *footnote* in that brief, CMS stated that “River’s Edge is appealing the deficiency for Tag F371.  However, because the surveyor responsible for this deficiency has retired, and the deficiency is based on observation, CMS cannot defend this deficiency.”  Pre-Hearing Brief at 2 n.2.  On November 9, 2018, Petitioner filed an Opposition Brief to CMS’s Motion for Partial Summary Judgment and Cross-Motion for Partial Summary Judgment (Opposition Brief), asserting that it is entitled to summary judgment with respect to F371 and that summary judgment is not appropriate for F323 because genuine issues of material fact remain.  Because it was not clear that CMS was, in fact, abandoning the CMP for F371, supplemental briefs were requested on this issue and on the issue of the reasonableness of the CMP imposed, with consideration of the regulatory factors specified in 42 C.F.R. § 488.438(f).  On June 1, 2020, CMS provided the requested brief (CMS Response Brief), indicating therein that the effect of the abandonment of the CMP for Tag F371 is that the only CMP now at issue is the $1,415 per day CMP, totaling $41,035.00, for Tag F323.  CMS Response Brief.  Petitioner submitted its Supplemental Brief In Further Support of Opposition to Motion for Summary Judgment, Pursuant to Order of May 11, 2020 (Supplemental Brief) on June 22, 2020.2

I.        Discussion

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.  Facilities participating in the Medicare program must, among other requirements, “ensure that . . . each resident receives adequate supervision and assistance devices to prevent accidents.”  42 C.F.R.

Page 3

§ 483.25(d)(2).  In *Woodstock Care Center*, the Board determined that, although section 483.25(h)(2)3
 does not hold a facility strictly liable for accidents that occur, it does require the facility to take reasonable steps to ensure that a resident receives supervision and assistance devices designed to meet his or her assessed needs and to mitigate foreseeable risks of harm from accidents.  DAB No. 1726 at 25-30 (2000) (citing 54 Fed. Reg. 5316, 5332 (Feb. 2, 1989)), *aff’d* *sub nom. Woodstock Care Ctr. v. Thompson*, 363 F.3d 583 (6th Cir. 2003).  The 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.  *See Woodstock Care Ctr.*, DAB No. 1726 at 21.

Summary judgment is appropriate when there is no genuine dispute about a fact or facts material to the outcome of the case and the moving party is entitled to judgment as a matter of law.  *Celotex Corp. v Catrett*, 477 U.S. 317, 322-25 (1986).  The party moving for summary judgment has the initial burden of demonstrating that there is no genuine issue of material fact for trial and that it is entitled to judgment as a matter of law.  *Celotex*, 477 U.S. at 323.  If the moving party carries that burden, “the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’” *Matsushita Elec. Indus. Co. v. Zenith Radio Corp.*, 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)).

“To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under governing law.”  *Senior Rehab. & Skilled Nursing Ctr.*, DAB No. 2300 at 3 (2010), *aff’d* *sub nom.* *Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs.*, 405 F. App’x 820 (5th Cir. 2010).  A party must do more than show that there is “some metaphysical doubt as to the material facts . . . . Where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’”  *Mission Hosp. Reg’l Med. Ctr.*, DAB No. 2459 at 5 (2012) (quoting *Matsushita*, 475 U.S. at 586-587), *aff’d sub nom. Mission Hosp. Reg’l Med. Ctr. v. Sebelius*, No. SACV 12-01171 AG (MLG), 2013 WL 7219511 (C.D. Cal. 2013), *aff’d sub nom. Mission Hosp. Reg’l Med. Ctr. v. Burwell*, 819 F.3d 1112 (9th Cir. 2016).

In examining the evidence to determine the appropriateness of summary judgment, 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).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I draw unreasonable inferences or accept the non-moving party’s legal conclusions.  *Brightview*, DAB No. 2132 at 10; *Cedar Lake Nursing Home*, DAB No. 2344 at 7 (2010).

Page 4

***1.  Petitioner is entitled to partial summary judgment.***

As an initial matter, I grant Petitioner’s cross-motion for partial summary judgment, which concerned the F371 deficiency.  CMS did not oppose Petitioner’s motion and, as noted, also represented that it “cannot defend” the deficiency.  Pre-Hearing Brief at 2 n.2.  Accordingly, there is no basis to find Petitioner out of substantial compliance with 42 C.F.R. § 483.60(i) and no basis to impose the related $610.00 per day CMP from July 21 through August 21, 2017.

The remaining issues before me are whether CMS is entitled to summary judgement on the remaining CMP of $41,035.00 for non-compliance with section 483.25(d); whether, at the time of the June 22, 2017 survey, the facility was in substantial compliance with section 483.25(d); and, if the facility was not in substantial compliance, whether the penalty of $41,035.00 is reasonable, pursuant to the provisions of 42 C.F.R. § 488.438(f).

***2.  CMS is******entitled to partial summary judgment.  The undisputed evidence establishes that the facility was not in substantial compliance with 42 C.F.R. §******483.25(d)(2) because facility staff did not take reasonable steps to ensure that one of its residents received adequate supervision and assistance devices to prevent accidents.***

After carefully considering the entire record, I find that CMS is entitled to partial summary judgment.  CMS has made a prima facie showing that Petitioner had failed to provide Resident No. 11 adequate supervision and assistance devices to prevent accidents on multiple occasions, and Petitioner has not proffered any set of facts which, if accepted, would establish that it was in substantial compliance with section 483.25(d).

Resident No. 11 was admitted to Rehab at River’s Edge on May 2, 2017, with diagnoses of respiratory failure, pneumonia, unspecified organism, alcoholic hepatitis with ascites, hepatic failure, other abnormalities of gait and mobility, muscle weakness, dysphagia, and oropharyngeal phase.  CMS Ex. 4 at 16; CMS Ex. 5 at 1.  An Admit/Readmit Screen on May 2, 2017, indicated Resident No. 11 verbalized or demonstrated the use of side rails, but there was no indication of the ability to use a call bell or bed controls.  P. Ex. 1 at 2.  Total dependence with dressing, toilet use, personal hygiene, and transfers was noted, and half side rails were recommended for safety and to promote independence with bed mobility.  *Id.* at 3, 14.

In Petitioner’s Pre-Hearing Brief (Brief), it asserted that the Morse Fall Risk assessment was administered on May 2, 2017, which determined the resident had a fall risk in the moderate range.  Brief at 5 (citing P. Ex. 2).  However, a review of that particular document indicates it was administered on August 9, 2017, and resulted in a score of 75, reflecting a “High” fall risk.  That this was a reevaluation is seen in the fact it reflects

Page 5

previous falls.  P. Ex. 2 at 1.  However, taking the Petitioner’s assertions at face value, I will assume the initial fall risk assessment reflected a moderate risk of falls, which was found to be the result of “[the resident’s] cognition, functional ability and *prior history of falls*.”  Brief at 5 (emphasis added).  The Morse Fall Risk assessment cited by Petitioner also noted that Resident No. 11 overestimates or forgets limits.  P. Ex. 2 at 1.

Petitioner also asserted that the “required admission MDS was also completed.”  Brief at 5 (citing P. Ex. 6).  However, as with the fall risk assessment cited above, the document contained in P. Ex. 6 is a Quarterly Review Minimum Data Set, dated August 9, 2017, and completed on August 22, 2017.  P. Ex. 6 at 1, 30, 67.  That this is a reevaluation is seen in the fact it includes a diagnosis of a fracture of the left foot, which was not present at the time of admission and was sustained on or about June 7, 2017.  CMS Ex. 3 at 101.  Moreover, the cited assessment reflected two or more falls *since admission* with one fall resulting in an injury.  P. Ex. 6 at 22, 51.  However, again taking the Petitioner’s assertions in its brief at face value and assuming that this was the “required admission MDS,” that assessment documented “severe cognitive impairment” and “behaviors consistent with acute mental status changes including inattention and disorganized thinking that fluctuated over the course of the day.”  Brief at 5.

Physical Therapy (PT) and Occupational Therapy (OT) assessments were conducted on May 3, 2017.  CMS Exs. 7-8.  Resident No. 11 was found in the PT evaluation to be dependent in wheeling and walking, to require substantial assistance with sit to stand, chair to chair, and chair to bed transfer, and to have poor static sitting balance.  CMS Ex. 7 at 3-4.  The OT evaluation indicated he had poor static and dynamic sitting, had only 3+/5 strength in the upper and lower extremities, was at risk for falls, and was unable to participate in establishing the POT (plan of treatment) because of confusion and agitation.  CMS Ex. 8 at 2-4.

A psychiatric evaluation was conducted on May 3, 2017.  P. Ex. 10.4
  Resident No. 11 was noted to have difficulty with impulsivity, word finding, and expressing himself.

A care plan was established.  CMS Ex. 4.5
  Relevant here is the section addressing the risk for falls related to “Confusion, Gait/balance problems, Incontinence, Unaware of safety needs, Does not call or wait for staff assist.  Impulsive up [and] down in w/c

Page 6

[wheelchair] with no purpose.”  *Id.* at 6-8.  Interventions established on May 3, 2017,6
 were:

Be sure the resident’s call light is within reach and encourage the resident to use it for assistance as needed.  The resident needs prompt response to all requests for assistance.
	Encourage the resident to participate in activities that promote exercise, physical activity for strengthening and improved mobility such as:  PT/OT
	Ensure that the resident is wearing appropriate footwear when ambulating or mobilizing in wheelchair
	Follow facility fall protocol
	PT evaluate and treat as ordered or PRN
	The resident needs activities that minimize the potential for falls while providing diversion and distraction (rotunda programs)
	The resident needs to be evaluated for and supplied adaptive equipment or devices as needed.  Reevaluate continued appropriateness and ensure least restrictive device or restraint
	The resident needs a safe environment with even floors free from spills and/or clutter, adequate, glare-free light; a working and reachable call light, the bed in low position at night; handrails on walls, personal items within reach
	The resident uses bed + chair electronic alarm.  Ensure the device is in place as needed.CMS Ex. 4.

**Falls**.  Assuming these interventions were in place, they did not prevent Resident No. 11 from falling.  As discussed in detail below, he fell repeatedly in nearly identical situations.  The record does not establish that the Resident No. 11 received “adequate supervision and assistance devices to prevent accidents.”  42 C.F.R. § 483.25(d)(2).

**i.        May 3, 2017:  First Fall in Rotunda**

Admission screening indicated Resident No. 11 was totally dependent with transfers (P. Ex. 1 at 3) and had impaired safety awareness, reduced insight for unsafe situations, and poor static and dynamic sitting.  CMS Ex. 7 at 2-3.  Despite this assessment, Resident No. 11 was wheeled into the rotunda on May 3, 2017, with no supervision level specified.

Page 7

According to an employee statement, she put Resident No. 11 in the rotunda at 11:00 a.m. “under surveillance” and was later told he fell.  CMS Ex. 3 at 4.  A second employee reported that Resident No. 11 was escorted to the rotunda for “close observation.”  *Id.* at 3.  Another witness stated that Resident No. 11 was in the rotunda trying to transfer himself from the wheelchair to a regular chair.  *Id.* at 6.  She indicated she ran to help him, but it was too late because he lost his balance and fell into a sitting position.  In the Incident Report completed on May 3, 2017, the staffing coordinator reported that at 12:30 p.m., Resident No. 11 was trying to transfer himself from his wheelchair to another chair in the rotunda, but lost his balance and fell.  *Id.* at 1-2.  Recommendations were for rehab post fall and to continue to keep in a supervised area.  Recommended interventions were to educate and have rehab evaluate.  In the IDCP (Interdisciplinary Care Plan) Incident Report, the incident was characterized as Resident No. 11 attempting a transfer unsuccessfully, and while the staff attempted to reach him, they were not on time.

The care plan was updated with a directive to “keep in supervised areas when OOB [out of bed],” and a rehab evaluation was recommended.  CMS Ex. 3 at 7; CMS Ex. 4 at 27.  The Screening Form signed by a therapist on May 4, 2017, referred to the fall on May 3, 2017, and noted no physical restraints were being utilized but a bed and chair alarm were in place and that Resident No. 11 was alert and oriented only times one.  Recommendations were to perform PT, OT, and speech therapy evaluations, keep NSG (nursing) interventions in place, and “maintain in supervised area.”  CMS Ex. 3 at 5.

Petitioner’s own description of the cause of Resident No. 11’s fall was that it was due to an unsafe transfer by an alert, confused, and restless individual.  CMS Ex. 3 at 7.  Yet, the plan of care was modified only to keep him in a supervised area when out of bed and to perform a rehab screening.  CMS Ex. 4 at 6.  The difference between keeping him in a supervised area and the “close observation” and “surveillance” he was reportedly receiving at the time of the initial fall is not explained or defined.  Petitioner does not explain the difference in its brief.

**ii.       May 4, 2017:  First Fall in Bedroom**

The exact circumstances of the fall on May 4, 2017, are unclear because the fall was unwitnessed.  There reportedly was a call to nursing from Resident No. 11’s roommate at 11:15 a.m., and the resident was found to be sitting on the bathroom floor.  CMS Ex. 3 at 16.  The resident said he was going to the bathroom when his legs gave up, and he lost his balance and fell.  According to the Incident Report completed on that date, nursing was called by the roommate.  The bed alarm was going off, and Resident No. 11 was sitting on the bathroom floor, saying his legs gave up and he lost his balance and fell.  *Id.* at 8.  A skin tear was noted on the resident’s nose from the fall.  Recommendations in that report included 1:1 (one to one) intervention for 3 days until stable *when in room*, keeping the bed in a low position, providing treatment as ordered, offering toileting every two hours while awake, and performing a rehab screen.  In the IDCP Incident Report,

Page 8

Resident No. 11 was described as ambulating independently to the bathroom,7
 and possible causal factors were identified as impaired safety awareness secondary to hepatic encephalopathy.  CMS Ex. 3 at 18.

The care plan was updated on May 4, 2017, to provide for 1:1 observation when in room for 3 days then close observation, a rehab screen, treatment to the skin tear on the nose, to offer toileting every two hours when awake, to place the bed in a low position, to place the bed by the wall, and to continue with skilled PT and OT.  CMS Ex. 4 at 6.8

The effectiveness of the plan to offer toileting every two hours when awake is questionable in light of the fact that Resident No. 11 had reportedly been offered morning care four times on the day of that fall, which presumably included toileting, and he refused, saying he was sleeping.  CMS Ex. 3 at 10, 16.  At some point, he then got up and fell.  Moreover, the initial Bowel and Bladder Screen indicated Resident No. 11 was never aware of the need to toilet.  P. Ex. 5 at 1.

At this point, there were two supervision levels ordered to prevent falls.  As noted above, on May 3, 2017, following the fall in the rotunda, the plan of care called for Resident No. 11 to remain in a supervised area.  On May 4, 2017, after a fall in his room, the plan of care called for 1:1 observation *when in his room* for three days, then close observation, but there is no indication there was any change in the level of observation when *out of his room*, even though two falls had already occurred.  Moreover, as discussed in detail below, there is no explanation or definition of the *difference* between 1:1 observation and close observation, either in the care plan or in instructions to staff.

**iii.      May 7, 2017:  Second Fall in Rotunda**

By May 7, 2017, Resident No. 11 had fallen twice, once in his room and once in the rotunda while in his wheelchair.  He was observed to be anxious on May 6, 2017, by nursing staff and was given Ativan twice.  P. Ex. 8 at 3.  On the morning of May 7, 2017, nursing staff observed Resident No. 11 to be agitated while trying to get out of bed and

Page 9

also observed him trying to pull out the feeding tube.  *Id.*  Ativan was given.  He subsequently did pull out the feeding tube on that date.  *Id.* at 4.  Despite this reported level of anxiety and agitation and two previous falls, Resident No. 11 was seated in the rotunda on May 7, 2017, with the supervision level of “continue to keep in supervised area,” according to the care plan in effect for that date.  CMS Ex. 4 at 6.  According to the Incident Report, at 1:45 p.m., as the CNA assigned to the rotunda started to give out a lunch tray, Resident No. 11 was seen on his left side, lying on the floor.  CMS Ex. 3 at 19.  Two people assisted him back into the wheelchair.  According to the CNA in the rotunda, she was with Resident No. 11 “in close range of him” and turned to hand a tray to another patient.  *Id.* at 30.  She stated he quickly got up and, by the time she reached him, he was on the floor on his left side.  In a separate statement, the same CNA stated she was always in close range of Resident No. 11, and he had been sitting very close to her but quickly got up and was on the floor by the time she reached him.  CMS Ex. 3 at 26.  She stated Resident No. 11 was very strong and that she could not prevent the fall as she tried to hold him down but was not able to reach him.  She also stated that “he jumps.”  Whether or not the CNA actually reached Resident No. 11 and tried to stop the fall is immaterial since it is clear that, even assuming she did reach him and tried to prevent the fall, she was unable to do so.  Considering the facts in the light most favorable to Petitioner, it is clear that the interventions in place were not effective in preventing the fall.

Recommended interventions following this fall in the Investigation Report were for 1:1 interventions at all times *until stable*, 1:1 close supervision, and “PT/OT” screen.  CMS Ex. 3 at 20.  In the IDCP Incident Report for the May 7, 2017 fall, actions taken were described as neuro checks, 1:1 intervention in the rotunda and the room *until stable*, rehab screen, “close 1:1 intervention until stable put in place,” and toileting offered every two hours during the day.  CMS Ex. 3 at 33-34.  The care plan was modified on May 7, 2017, to require “neuro checks, 1:1 intervention in the rotunda and in room until stable, rehab screen, [and] encouragement [to] participat[e] in activities.”  CMS Ex. 4 at 6.  There was no mention in the revised care plan on that date of the 1:1 “close” supervision cited in the IDCP Incident Report.

A Screening Form was completed on May 8, 2017.  CMS Ex. 3 at 31.  Resident No. 11 was described as a behavior risk, agitated, impulsive, and with poor safety awareness.  Recommendations were for 1:1 in place and to continue with skilled PT and OT intervention due to decline in function.

Because 1:1 intervention was listed separately from “close 1:1 intervention,” they are presumed to be different interventions.  However, neither intervention was specifically defined or explained, and the “close 1:1 intervention” was not included in the revised care plan.  Petitioner argues that “close supervision” was “defined on the form” as “every thirty minutes monitoring.”  Opposition Brief at 6.  The form cited by Petitioner is certainly entitled “Close Monitoring (30 Minutes),” but there is no reference to this being

Page 10

the equivalent or the definition of 1:1 intervention.  It may be that 1:1 intervention and possibly close 1:1 intervention were *interpreted* as every 30 minutes monitoring.  However, subsequent nursing notes refer to Resident No. 11 receiving *both* 1:1 supervision and every 30 minute monitoring, suggesting they were *not* the same type of supervision.  P. Ex. 8 at 8; *see also* P. Ex. 16 (documenting 1:1 supervision beginning August 2017).

There is evidence of someone checking on Resident No. 11 every 30 minutes, based on the form in CMS Ex. 10, at least from May 7, 2017 through May 30, 2017.9
  However, it is not clear that this intervention would be sufficient to prevent the falls that were concededly caused by an agitated, impulsive individual with poor safety awareness.  CMS Ex. 3 at 31.  Checking on such an individual once every 30 minutes would not and did not prevent falls in the remaining minutes of each half hour.  So, either the facility incorrectly interpreted the care plan’s specified level of monitoring or the specified level of monitoring was not sufficient to prevent falls with resulting injury.

The duration of the 1:1 intervention or close 1:1 intervention was also not specifically defined.  The May 7, 2017 Incident Report and the amendments to the care plan refer to 1:1 intervention “until stable,” but this latter condition was not specified.  CMS Ex. 3 at 33-34; CMS Ex. 4 at 6.  It is not clear whether this referred to being neurologically stable after the fall or until the resident’s overall condition improved.  The fact that the care plan did not remove this requirement after it was added on May 7, 2017, supports the interpretation that it was intended to be in place until Resident No. 11’s overall condition improved, which did not occur during the relevant time period in this case.

**iv.      May 14, 2017:  Second Fall in Bedroom**

By May 14, 2017, Resident No. 11 had fallen three times, twice in the rotunda while getting up from his wheelchair, and once in his room, after getting out of his bed.  The cause of all these falls was determined to be agitation, impulsiveness, and poor safety awareness.  *See, e.g.*, CMS Ex. 3 at 31.  The amended care plan at this point required, among other provisions, 1:1 intervention in the rotunda and room until stable, having the call light within reach, and leaving the bed in a low position at night.

According to nursing notes dated May 14, 2017, Resident No. 11 was confused, disoriented, and restless at 11:00 p.m. due to LBM (loose bowel movement or diarrhea); he was cleaned by the CNA and then calmed down and slept well.  P. Ex. 8 at 6.  In another nursing note on the same date, he was noted to be confused and agitated.  *Id*.  There were no witnesses to the fall on May 14, 2017.  A staff member indicated in a written statement that she was doing her rounds on May 14, 2017, heard the bed alarm

Page 11

from Room 106, and found Resident No. 11 sitting on the floor mat10
 near the bedside.  CMS Ex. 3 at 43.  There were two additional staff statements indicating that “it was reported to me” that Resident No. 11 was found in a sitting position on the floor mat.  CMS Ex. 3 at 35-36.  The Incident Report covering the May 14, 2017 fall stated that Resident No. 11 was on “frequent check” and “frequent close observation,” two additional undefined levels of supervision.  *Id.* at 46.  The Investigation Report from this incident characterized the intervention level as “frequent monitor.”  *Id.* at 38.  According to the IDCP Incident Report, Resident No. 11 reportedly did not call for assistance prior to attempting to get out of bed, despite the bed being in a low position, the call button within reach, and bed alarms in place.  *Id.* at 47.  The root cause of the fall was again attributed to poor safety awareness.  According to the report, the plan was to continue with skilled therapy and close observation, with a U/A (urinalysis) to rule out a UTI (urinary tract infection), and to perform another rehab screen.  The care plan was amended only to include a U/A.  CMS Ex. 4 at 6.

Considering first the call light as a fall prevention technique, the initial screening performed on May 2, 2017, indicated Resident No. 11 verbalized or demonstrated the use of side rails, but there was no indication of his ability to use the call light.  P. Ex. 1 at 2.

Similarly, leaving the bed in a low position was a part of the care plan since the May 4, 2017 fall, which occurred as a result of Resident No. 11 getting out of the bed unassisted.  CMS Ex. 4 at 6.  This did *not* prevent him from getting out of bed and falling on May 14, 2017.  As a result, this provision of the care plan was not sufficient to meet Resident No. 11’s needs, given the ongoing assessment of poor safety awareness, disorganized thinking (P. Ex. 6 at 7), agitation (P. Ex. 8 at 3, 5), and impulsivity (P. Ex. 10 at 1).  Despite the fact that the call light and bed alarm were within reach and the bed was in a low position, this was the second time this resident with poor safety awareness was unable to utilize them to avoid falling in identical situations.

Records from the time of the May 14, 2017 fall again reflect a wide range of descriptions of the level of supervision being provided.  In the Investigation Report covering the May 14, 2017 fall, the intervention was described as “frequent monitor.”  CMS Ex. 3 at 38.  The Incident Report described the level of supervision as “frequent close observation” and “continues to be watched closely.”  *Id.* at 46-47.  A written statement from a staff member indicated “30 minute monitoring in progress.”  *Id.* at 36.11
  None of the

Page 12

statements provided regarding the May 14, 2017 fall and none of the investigative reports referred to the 1:1 intervention required by the care plan at that time.  However, even assuming the 1:1 intervention was appropriately interpreted to mean “frequent monitor,” “frequent close observation,” or being “watched closely,” this level of care was not sufficient to minimize the risks to a vulnerable patient.  This was the second time that Resident No. 11 got out of his bed and fell, despite whatever level of supervision was being provided.

There are some discrepancies in the description of Resident No. 11’s activities prior to the May 14, 2017 fall.  According to one statement, Resident No. 11 was in bed at 9:00 p.m.12
  CMS Ex. 3 at 36.  In a statement from another staff member, she gave Resident No. 11 a pudding snack at 10:30 p.m. and then took him to his room.  *Id.* at 42.  The 30 Minute Monitoring Report indicated Resident No. 11 was in the rotunda at the 9:00 p.m. and 9:30 p.m. checks.  CMS Ex. 10 at 8.  However, these discrepancies between statements are not material facts in dispute because where Resident No. 11 was *before* the fall is not relevant.  He was alone in his room when he got out of bed and fell at approximately 11:03 p.m.  Once again, either the facility did not provide the level of supervision specified in the care plan or the level of supervision and intervention specified in the care plan was not “adequate” to prevent accidents, as required by 42 C.F.R. § 483.25(d)(2).

**v.       May 15, 2017:  Third Fall in Rotunda**

By May 15, 2017, Resident No. 11 had fallen four times, twice in the rotunda while getting up from his wheelchair and twice in his room, after getting out of his bed.  Based on the investigations of the two earlier falls in the rotunda, it was known that he could be agitated and impulsive and had poor safety awareness.  *See, e.g.*, CMS Ex. 3 at 31.  It was also now known that he was a strong individual, and a single staff person was not able to keep him from getting out of his wheelchair.  *Id.* at 26.

At 9:30 a.m. on May 15, 2017, less than 12 hours after he had fallen in his room, Resident No. 11 was sitting in his wheelchair in the rotunda.  Earlier that day, at 7:30

Page 13

a.m., he had been observed trying to get out of bed.  CMS Ex. 3 at 56.  According to the IDCP Incident Report, Resident No. 11 “strongly got out of the wheelchair unable to be held down by staff and hit the floor in sitting position.”  *Id.* at 62.  He was described as confused, with uncoordinated jerky movement, combativeness, and restlessness.  A staff member provided a statement in which she indicated she was doing 1:1 on the patient, who was sitting in the wheelchair.  *Id.* at 57-58.  She reported he “strongly” got out of the chair and while she quickly tried to get ahold of him, he was stronger than she was and sat on the floor before she could help.  She stated and another witness reported that the chair alarm was heard.13
  *Id.* at 48, 55.  Recommendations were for a rehab screen, a psych consult, and the wheelchair alarm to be changed to a voice alarm.  The subsequent Screening Form, completed after the May 14, 2017 and May 15, 2017 falls, again identified very poor safety awareness and decreased cognition and insight.  *Id.* at 59.

While the supervision or intervention level was reported a day earlier to be “frequent monitor,” “frequent close observation,” and “continues to be watched closely,” on May 15, 2017, staff indicated that Resident No. 11 was receiving 1:1 supervision.  CMS Ex. 3 at 38, 46-47, 58, 62.  The providing staff member described this as “standing by the patient doing 1 to 1 with him” and “doing 1:1 on the patient.”  CMS Ex. 3 at 57-58.  It is certainly not clear that all of these descriptions reflect the same standard of supervision.  It appears unlikely that staff members providing the same manner and level of supervision would use so many different characterizations to describe that.  However, it is not necessary to determine whether, in fact, these were just different names for the same level of supervision or were different interpretations of the intended level of supervision.  The record documents that the level of supervision or intervention provided, whatever it was called, was not sufficient to prevent Resident No. 11 from repeatedly falling in the same situations.  After the fifth fall, the only modifications to the care plan were to change the wheelchair alarm to a voice alarm, conduct a rehab screen, review the Ativan dose, and perform “LABS” (bloodwork) as ordered.  CMS Ex. 4 at 6.

**vi.      May 22, 2017:  Fourth Fall in Rotunda**

By May 22, 2017, Resident No. 11 had fallen five times, three times in the rotunda, while getting up from his wheelchair, and twice in his room, after getting out of his bed.  Based on the investigations of the earlier falls in the rotunda, it was known that Resident No. 11 was agitated, impulsive, and had poor safety awareness.  *See, e.g.*, CMS Ex. 3 at 31.  It had been known since May 7, 2017, that he was a strong individual and a single staff person was not able to keep him from getting out of his wheelchair.  CMS Ex. 3 at 26.  On May 22, 2017, at 9:20 p.m., Resident No. 11 was in the rotunda and was reported to have jumped from the wheelchair and fell.  *Id.* at 64.  According to the Incident Report,

Page 14

the aide assigned to the rotunda was unable to prevent the fall.  Skin tears were observed on the right elbow and left foot.  *Id.*

There were discrepancies in the description of the circumstances surrounding the fall.  In one statement, a CNA stated she was close to the patient holding him but was unable to hold him down or catch him.  CMS Ex. 3 at 70.  In another statement by the same CNA, she reported she was holding “the patient” and that “the other” CNA was holding another patient when Resident No. 11 stood up, and they were unable to catch him.  CMS Ex. 3 at 71.  Another CNA indicated she was holding one of the patients when Resident No. 11 stood up.  *Id.* at 73.  In the IDCP Incident Report, Resident No. 11 was reported to have jumped out of his wheelchair in spite of staff holding him.  *Id.* at 76.  However, this apparent discrepancy does not constitute a material fact in dispute.  For the purposes of summary judgement and viewing the record in the light most favorable to Petitioner, even assuming that someone *was* physically holding onto Resident No. 11 on May 22, 2017, at 9:20 p.m. in the rotunda, this was obviously not a sufficient level of supervision or intervention to prevent the sixth fall.

It was not until this sixth fall and the **fourth** fall from his wheelchair that Resident No. 11 was referred to OT for consideration of a possible seat belt.  CMS Ex. 3 at 75.  This is in spite of the fact that, since **May 3, 2017**, the care plan had recommended an evaluation for adaptive equipment or devices and re-evaluations to ensure the least restrictive device or restraint was used.  CMS Ex. 4 at 8.  The failure to follow the care plan by not implementing an intervention designed to prevent falls amounts to a failure to provide “adequate supervision and assistance devices to prevent accidents.”  42 C.F.R. § 483.25(d)(2).  Resident No. 11 was finally seen on May 22, 2017, for this assessment and a front closing buckle seat belt and rear anti-tippers were recommended.  CMS Ex. 3 at 75.

**vii.     June 7, 2017:  Third Fall in Bedroom**

By June 7, 2017, Resident No. 11 had fallen six times:  four times in the rotunda, while getting up from his wheelchair, and twice in his room, after getting out of his bed.  Based on the investigations of the earlier falls, it was known that Resident No. 11 was agitated, impulsive, and had poor safety awareness.  *See, e.g.*, CMS Ex. 3 at 31.  Based on earlier investigations of the falls in the bedroom, it was known that having the bed by the wall, a low bed, a call light within reach, and offering toileting every 2 hours when awake were not effective interventions in preventing him from getting out of bed and falling.

In the Incident Report from June 7, 2017, it was reported that at 4:00 a.m., an alarm was heard in Resident No. 11’s room and he was found to be sitting on the floor, alert and confused.  CMS Ex. 3 at 95.  A statement provided by a staff person indicated Resident No. 11 was received in bed at 11:00 p.m. on June 6, 2017, with the bed in a low position and locked with the call bell close to him.  *Id.* at 99.  She stated she sat at the door facing

Page 15

him the whole time for close supervision and the only time she left was to answer other patients’ call lights.  She indicated that, at 4:00 a.m., she was “rounding” and left him sleeping with the call light close and the bed in a low and locked position.  A witness statement from that date indicated a staff person heard the alarm and found Resident No. 11 on the floor.  *Id.* at 98.  She stated she was covering for the CNA who was on break.  As a consequence of this fall, Resident No. 11 sustained an acute left foot fracture with associated soft tissue swelling.  CMS Ex. 3 at 100-01.

The IDCP Incident Report again noted poor safety awareness and indicated the resident continued to be on “very close supervision” in the rotunda and “close supervision” when in the room, with, at times, the staff sitting inside the room with him.  CMS Ex. 3 at 109-10.  Interventions were to continue close observation, obtain a psychological consult and a rehab screen, and continue with skilled PT.  The Screening Form from June 7, 2017, identified severe cognitive deficits, restlessness, jumpiness, and poor safety awareness with recommendations to keep the nursing interventions in place and to “continue [with] skilled PT/OT/ST.”  *Id.* at 102.

In its brief, Petitioner asserts that there are genuine issues of material fact that remain in dispute.  It specifically states that “the record demonstrates that genuine issues of material fact exist regarding the sufficiency of interventions implemented to address Resident No. 11’s erratic movements and behaviors while still respecting the resident’s rights and individual autonomy” and “[w]hether the incidents were foreseeable and whether the care planning were sufficient responses under the circumstances are material to determining whether the Facility was deficient.”  Opposition Brief at 16.  However, what Petitioner asserts as material facts in dispute are instead legal conclusions, as it essentially concedes in its statement that “[t]hese *conclusions* serve as the basis for the cited deficiency at tag F323.”  *Id.* (emphasis added).  “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.”  *Guardian Health Care Ctr*., DAB No. 1943 at 11 (2004).

Petitioner does cite specific examples of questions the surveyor raised, which are considered as arguments for material facts being at issue.  It initially notes that there was a question about whether or not the chair alarm was armed at the time of the May 3, 2017 fall.  Opposition Brief at 17.  It argues that facility documents note the chair alarm *was* in use at the time of the incident.  However, it then concedes that this difference was “inconsequential” since an alarm sounding would not have prevented the fall, a fact acknowledged in the State Operations Manual.  Opposition Brief at 17.

Petitioner notes that while the surveyor “questioned what close supervision was implemented, the monitoring documentation notes it to be direct observation every thirty minutes.”  Opposition Brief at 18.  Petitioner states that while the surveyor was unclear if Resident No. 11 was supposed to be receiving 1:1 supervision and, if so, where the aide

Page 16

was at the time of the fall, investigation documents had clear documentation that the aide was standing right next to Resident No. 11 at the time of the incident on May 15, 2017, but was unable to stop him.  *Id.* at 19.  It further argues that the surveyor was incorrect that the aide assigned to Resident No. 11 on May 22, 2017, was not near him at the time of the fall.  *Id.*

Petitioner argues that “[m]ultiple interventions addressed the increasing levels of supervision of Resident No. 11, initially placing him in a supervised setting where staff were always present (the rotunda) to close supervision when out of bed defined on the form as ‘every thirty minutes monitoring,’ then ‘close supervision when in bed described as an aide present outside his doorway at night,’ and finally ‘one to one supervision described as an aide directly next to Resident No. 11 when out of bed.’”  Opposition Brief at 6 (citing CMS Ex. 10 at 1-21; P. Ex. 18 at ¶ 19).

There are multiple problems with this argument.  While there were many recommendations after falls for various levels of supervision, as noted above, only three levels were included in the care plan.  On May 3, 2017, after the initial fall, the care plan was amended to include a requirement to “continue to keep in supervised areas when [out of bed].”  CMS Ex. 4 at 6.  Following the fall in his room on May 4, 2017, the care plan was updated to require “1:1 observation when in room for 3 days then close observation.”  CMS Ex. 4 at 6.  On May 7, 2017, the care plan was again updated following the second fall in the rotunda to require “1:1 intervention in the rotunda and in room until stable.”  CMS Ex. 4 at 6.

Initially, I note that the definitions of these levels of supervision offered by Petitioner were not effectuated, as it defined them.  Assuming “close supervision when out of bed” was correctly interpreted as “every thirty minutes monitoring,” then it is not clear why the 30 minute monitoring would continue throughout the night when Resident No. 11 was*in* bed.  “[C]lose supervision when in bed” was defined by Petitioner as an aide present outside his doorway at night.  Opposition Brief at 6.  Yet the record does not document that an aide was present outside the Resident No. 11’s door every night.  The *one* reference to an aide being outside the door was on June 7, 2017, when an aide was outside the door but left because she was doing rounds or responding to another patient; she was not present at the time of the fall on that date.  CMS Ex. 3 at 98-99.  The Incident Report from that date indicated the resident continued to be on “very close supervision” in the rotunda and “close supervision” when in the room, with, “*at times*,” the staff sitting inside the room with him.  CMS Ex. 3 at 109-10 (emphasis added).  And, Petitioner’s interpretation of “one to one supervision described as an aide directly next to Resident No. 11 when out of bed” is not consistent with the care plan, which called for 1:1 intervention in the rotunda *and in room* until stable.  CMS Ex. 4 at 6.

However, drawing all reasonable inferences in the light most favorable to the Petitioner, and assuming close supervision *was* observation every 30 minutes; that aides *were*

Page 17

standing right next to Resident No. 11 on May 15, 2017, and May 22, 2017; an aide *was* outside Resident No. 11’s door every single night; and he *had* an aide directly next to him when out of bed, none of these interventions prevented Resident No. 11 from falling **seven**times in nearly identical situations and sustaining injuries, including a fracture.  Resident No. 11’s repeated falls within such a short time demonstrate that the intended supervision and interventions in the care plan were either not adequate or not adequately implemented in violation of the regulatory requirement to “ensure that . . . each resident receives adequate supervision and assistance devices to prevent accidents.”  42 C.F.R. § 483.25(d)(2).

Petitioner’s argument is essentially that Resident No. 11’s “behavior was simply such that no amount of supervision could have prevented these falls,” the “unforeseeable and unpredictable actions of Resident No. 11 resulted in his injury,” and the falls were attributable to “uncontrollable responses due to his alcohol dementia and hepatic encephalopathy.”  Opposition Brief at 2, 15, 20-21.  There is no dispute that Resident No. 11’s falls were the result of alcohol encephalopathy.  However, there is also no dispute that the behaviors of Resident No. 11, caused by the alcohol encephalopathy, were, in fact, quite foreseeable and predictable.  The fact that the falls occurred in identical settings and were the result of the same cause should have made them predictable.  From the day of admission, Resident No. 11 was assessed as being impulsive (P. Ex. 10 at 1) with disorganized thinking (P. Ex. 6 at 7) and having impaired safety awareness and decreased insight for unsafe situations.  CMS Ex. 7 at 2-3.  Petitioner’s own expert witness stated the fall on May 3, 2017, had absolutely nothing to do with a chair alarm and “was the result of spontaneous action by a confused resident.”  P. Ex. 17 at 5.  Post fall screenings by therapy attributed the falls to agitation, impulsivity, decreased cognition and insight, and poor safety awareness.  P. Ex. 17 at 6; CMS Ex. 3 at 31, 44, 59.  Thus, it should have been very foreseeable and very predictable that such an individual would engage in behaviors that resulted in falls.  It may have been unpredictable as to *when* Resident No. 11 would attempt to get out of his bed or his wheelchair, but it was certainly predictable that he *would*.

Implicit in Petitioner’s argument that no amount of supervision could have prevented the falls is that nothing *else* could have been done to prevent the falls.  However, the undisputed record clearly establishes that when Resident No. 11 was finally referred to therapy for an assessment of a self-release belt for the wheelchair, which was recommended and applied, the falls from the wheelchair ceased, at least during the relevant time period.  CMS Ex. 3 at 64, 75, 108.  Unfortunately, this did not occur until May 22, 2017, after Resident No. 11 had already fallen six times.  More troubling is the fact that an evaluation for adaptive equipment or devices was identified as an intervention to prevent falls in the initial care plan, dated May 3, 2017, but the evaluation did not

Page 18

occur until the resident had already fallen six times.14
  CMS Ex. 4 at 8.  Such a failure cannot be viewed as taking “reasonable steps to ensure that a resident receives the supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  *Briarwood Nursing Ctr.*, DAB No. 2001 at 5 (2007).

Overall, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) based on the following reasons and undisputed facts, as detailed above:

It was not until the fourth fall from his wheelchair in the rotunda that Resident No. 11 was finally referred to OT for consideration of a possible seat belt.  The facility should have assessed the resident for a possible seat belt earlier, and its delay was unreasonable.  The original care plan had recommended an evaluation for adaptive equipment or devices, and the documentation of the resident’s prior falls indicated that the resident was agitated, impulsive, and had poor safety awareness.  *See, e.g.*, CMS Ex. 3 at 31; CMS Ex. 4 at 8.
	After the first fall, the facility failed to adequately care plan for the resident to address his risk of falls.  The facility updated the care plan to keep the resident in supervised areas when out of bed, but the resident’s first fall was in a supervised area already (the rotunda).  *See, e.g.*, CMS Ex. 3 at 1-2; CMS Ex. 4 at 6.  The facility should have known that keeping the resident in a supervised area would be inadequate to prevent another fall, and indeed, the resident would go on to fall in the rotunda again.
	The facility failed to implement the care plan at the time of the resident’s second fall in his bedroom (May 14).  At that time, the care plan required “1:1 intervention in the rotunda and in room until stable,” but there was no indication that any aide was inside the resident’s room or outside his door when he fell.  CMS Ex. 4 at 6.  On this point, Petitioner asserts that “an aide was positioned outside the doorway of Resident No. 11 at night,” but Petitioner submits no evidence to support that staff was providing “1:1 intervention.”  Opposition Brief at 18 (citing CMS Ex. 3 at 35).Page 19

The facility failed to adequately care plan for the resident after his third fall from his wheelchair in the rotunda (May 15).  The facility ordered various assessments, but did not modify the resident’s supervision level.  Instead, it simply updated the care plan to change the wheelchair alarm to a voice alarm.  CMS Ex. 4 at 6.  Given the documentation of the resident’s falls and his agitation, impulsivity, and poor safety awareness, the facility should have known that simply changing the alarm would be inadequate to prevent another fall.***3.  The undisputed evidence establishes that the remaining penalty imposed is reasonable.***

The next issue for consideration is whether the CMP 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 No. 11’s 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.

In reaching a decision on the reasonableness of the CMP, I must make an independent determination about “whether the evidence presented on the record concerning the relevant regulatory factors 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 other factors involved (financial condition, facility history, and culpability).”  *CarePlex of Silver Spring*, DAB No. 1683 at 8 (1999).

CMS imposed a CMP in the amount of $1,415 per day for 29 days, beginning on June 22, 2017, and continuing through July 20, 2017.  This amount is in the low end of the relevant penalty range for per day penalties ($105 to $6,289).  42 C.F.R. §§ 488.408(d)(1)(iv), 488.438(a)(1)(ii); 45 C.F.R. § 102.3 (2017); 82 Fed. Reg. 9174, 9182-83 (Feb. 3, 2017).

CMS does not cite the facility’s compliance history as a factor that justifies a higher CMP.  Petitioner asserts that it has a history of complying with all regulations and guidelines and that none of the deficiencies prior to June 2017 resulted in severe penalties to the facility.  Supplemental Brief at 5.  Taking this statement as fact for the purposes of summary judgment, this factor would weigh in favor of the Petitioner.  However, Petitioner does not claim that its financial condition affects its ability to pay this relatively modest amount.

Page 20

Considering the remaining factors, Petitioner argues that the deficiency at issue was neither serious nor severe because it involved only “one Resident,” Resident No. 11, who sustained only a minor injury without any long term effects and, thus, such “alleged harm” cannot be considered severe.  Request for Hearing at 2; Supplemental Brief at 6.  However, as discussed extensively above, that “one Resident,” Resident No. 11, fell **seven** times in a little over a month’s time in identical situations.  Moreover, to characterize Resident No. 11’s injuries as minor and only “alleged harm” is not an accurate reflection of the undisputed record.  Resident No. 11 sustained what was characterized as a fracture involving the left fifth metatarsal with moderate displacement and angulation, later described as an “acute left foot fracture” in a fall.  CMS Ex. 3 at 100-01.  The fracture necessitated application of soft and then hard casts and placement in non-weight bearing status.  P. Ex. 8 at 16-18.15
  Resident No. 11 also sustained a skin tear on the nose in the fall on May 4, 2017, and two skin tears on the left foot and a skin tear on the right elbow in the May 22, 2017 fall.  CMS Ex. 3 at 8, 64, 77; CMS Ex. 4 at 6.  Complicating the skin tears was the undisputed fact that Resident No. 11 was noted in the care plan to be at risk of bruising secondary to the use of anticoagulants and was at risk for skin tears secondary to fragile skin.  CMS Ex. 4 at 10, 15.  So, while it is accurate to say that the deficiency involved only one resident, that resident, Resident No. 11, fell repeatedly in identical situations and sustained injuries as a result of those falls.  This cannot be considered “alleged harm.”

Resident No. 11’s repeated falls within such a short time span demonstrate that the intended supervision and interventions in the care plan were either not adequate or not adequately implemented in violation of the regulatory requirement to “ensure that . . . each resident receives adequate supervision and assistance devices to prevent accidents.”  42 C.F.R. § 483.25(d)(2).  For this, the facility is culpable and the penalty imposed is reasonable.

Page 21

II.      Conclusion

As explained above, I grant CMS’s motion for partial summary judgment with respect to Tag F323.  I conclude that Petitioner was out of substantial compliance with the accident prevention regulation and that the related $1,415 per day CMP imposed from June 22 through July 20, 2017, is reasonable.  I also grant Petitioner’s cross-motion for partial summary judgment with respect to Tag F371 and, as a result, there is no basis for the related $610 per day CMP imposed from July 21 through August 21, 2017.


          /s/
        Mary M. Kunz

                      Administrative Law Judge
      1. The case was originally assigned to Judge Bill Thomas, but was later reassigned to me on April 24, 2020. back to note 1
                      2. In the Supplemental Brief, Petitioner argued that, “[t]hrough analysis of the evidence at a full hearing,” it would establish that the F323 deficiency was unreasonable.  Supplemental Brief at 13.  In the same brief, it asserted that it is entitled to a hearing on the merits.  Id. at 2.  However, Petitioner did not comply with the APHO issued by Judge Thomas, who stated that a hearing to cross-examine witnesses is necessary only if a party requests cross-examination.  APHO at 7.  Because Petitioner did not affirmatively request cross-examination within the time period specified by Judge Thomas and because I have granted CMS’s motion for summary judgment with respect to the F323 deficiency, no hearing will be held.  back to note 2
                      3. The regulations governing long-term care facilities have been revised; 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 (Jul. 13, 2017). back to note 3
                      4. Although Petitioner asserts in its brief that the evaluation was conducted by a psychiatrist on May 3, 2017 (Brief at 7), the report was signed by Michelle Matro, PA-C.  Regardless of the author, the findings from that evaluation are accepted as written. back to note 4
                      5. The care plan is also contained in P. Ex. 7, but this is a revision, dated August 9, 2017, of the original care plan. back to note 5
                      6. As explained below, the resident first fell on May 3, 2017, and it is unclear whether these interventions, initiated on the same date, were in place before the fall.  For purposes of summary judgment, however, I will accept that these interventions were in place before the fall. back to note 6
                      7. This characterization appears unlikely since Resident No. 11 had been evaluated two days earlier and was observed to require substantial assistance with walking and basic mobility.  CMS Ex. 7 at 4.  However, again assuming the facts as alleged by Petitioner that Resident No. 11 was able to ambulate independently to the bathroom, he fell upon reaching the bathroom. back to note 7
                      8. The unsigned “Falls” summary provided by Petitioner contains a broader description of the 1:1 observation for three days on May 4, 2017, and does not limit this level of observation to be provided only when in his room, as indicated in the care plan.  CMS Ex. 9 at 1.  Because it is not clear who authored this summary, this will not be considered a change to or alteration of the care plan discussed above. back to note 8
                      9. There is a gap in the dates of monitoring from May 16, 2017 through May 20, 2017. back to note 9
                      10. The use of a floor mat was not included in the care plan so it is not clear when this was added to presumably mitigate against injuries from falls. back to note 10
                      11. Curiously, the unsigned document entitled “Falls” indicated the interventions in place on that date included staff remaining in front of the door.  CMS Ex. 9 at 1.  None of the submitted statements from staff and none of the investigative reports from the May 14, 2017 fall reference anyone standing in front of Resident No. 11’s door.  However, this again is not found to be a material fact in dispute since, even assuming there was a staff person remaining in front of the door, this was not sufficient to prevent the fall. back to note 11
                      12. There was another statement from this same individual in regards to the May 14, 2017 fall, in which she stated that chairs were moved away from around the bed and that “it was obvious that the Resident tampered with his surroundings.”  CMS Ex. 3 at 37.  While this observation was not made by any other observer and while it would seem unlikely that Resident No. 11 would be physically capable of moving chairs to tamper with his environment, it is not a material fact since the relevant fact is that the fall occurred while he was alone in his room, trying to get out of bed unassisted. back to note 12
                      13.  Ironically, one staff member stated the alarm was functioning “well” at the time of the fall, despite the fact it did nothing to prevent the fall.  CMS Ex. 3 at 55. back to note 13
                      14. In the Supplemental Brief, Petitioner suggests that some injuries “are unavoidable while a facility care-plans, ‘taking into account the desires if [sic] the resident and the rights of a resident to not be restrained.’”  Supplemental Brief at 6.  It must be noted that there is absolutely no evidence in this record to establish that the resident or his caretakers expressed any opinion on adaptive equipment or devices prior to May 22, 2017, when they were contacted about the recommendation for the self-release seatbelt and agreed with the recommendation.  CMS Ex. 3 at 77.  There is certainly no indication that Resident No. 11, who was likely not capable of giving consent, or his family had expressed any opposition to any kind of restraint or adaptive equipment during the relevant time period. back to note 14
                      15.  Petitioner initially alleged that it could not be assumed that the “minor fracture” of the left fifth toe was the result of the incident on June 7, 2018.  Request for Hearing at 3.  However, it subsequently cited its expert witness to say that the fracture was “unavoidable,” apparently conceding that the injury was related to the fall.  P. Ex. 17 at 13. back to note 15 Back to top
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