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                              Leisure Glen Post Acute Care Center, DAB CR6024 (2022)
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Leisure Glen Post Acute Care Center, DAB CR6024 (2022)








  
  
    

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





Leisure Glen Post Acute Care Center
(CCN:  55-5217),
Petitioner,

v.

Centers for Medicare & Medicaid Services
Docket No. C-18-1009Decision No. CR6024February 3, 2022

        
              
    

      DECISION

Leisure Glen Post Acute Care Center challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with Medicare program participation requirements at 42 C.F.R. § 483.25(d)(1)‐(2).1
  Petitioner also challenges the imposition of remedies, including a per‐instance civil money penalty (CMP) of $10,000.  For the reasons discussed below, I find that Petitioner failed to substantially comply with the Medicare participation requirements found at 42 C.F.R. § 483.25(d)(1)‐(2).  I conclude that the amount of the per-instance CMP imposed is reasonable.  A denial of payment for new admissions (DPNA) from April 28 through May 16, 2018, is also reasonable.

I.  Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in Glendale, California, that participates in the Medicare program.  CMS Exhibit (Ex.) 1 at 1.  The California Department of Public

Page 2

Health (state agency) completed a complaint investigation survey of Petitioner’s facility on March 27, 2018, and found that the facility was not in substantial compliance with Medicare participation requirements.  *Id*.  CMS concurred with the state agency’s determination, and, by letter dated April 13, 2018, imposed a per-instance CMP of $10,000 for Petitioner’s noncompliance with 42 C.F.R. § 483.25(d)(1)-(2) (Tag F689 – Free of Accident Hazards/Supervision/Devices) at scope and severity level “G.”2
  CMS Ex. 10 at 1-2; *see also*CMS Ex. 1 at 3.  CMS also imposed a DPNA effective April 28, 2018, and advised Petitioner that it would terminate the facility’s Medicare provider agreement no later than September 27, 2018, if Petitioner did not achieve substantial compliance by that date.  CMS Ex. 10 at 2.  CMS further advised Petitioner that, as a result of the DPNA and a finding of substandard quality of care, it was withdrawing approval of Petitioner’s nurse aide training and competency evaluation program (NATCEP).  *Id.*at 3.

By letter dated June 21, 2018, CMS informed Petitioner that a follow-up survey completed on May 17, 2018, established that Petitioner had returned to substantial compliance, effective May 17, 2018.  CMS Ex. 11 at 2.  CMS advised Petitioner that it would not terminate the facility’s provider agreement on September 27, 2018, and that it had discontinued the DPNA, effective May 16, 2018.  *Id.* CMS reiterated that it had imposed a per-instance CMP of $10,000.  *Id.*at 1.

Petitioner timely requested a hearing before an administrative law judge.  The case was assigned to me for hearing and decision.  On June 21, 2018, I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) establishing a briefing schedule.  In compliance with my Pre-Hearing Order, CMS filed a pre-hearing exchange, consisting of a pre-hearing brief (CMS Br.), witness and exhibit lists, and 12 proposed exhibits, including the written declaration of one proposed witness (CMS Exs. 1-12).  Petitioner filed a pre-hearing exchange, consisting of a pre‐hearing brief (P. Br.), witness and exhibit lists, and 13 proposed exhibits (P. Exs. 1-13).  Petitioner did not file any

Page 3

declarations for any of its proposed witnesses.  Following CMS’s objections to Petitioner’s witnesses, Petitioner moved to supplement its exchange with two witness declarations and requested to cross-examine CMS’s sole witness.  Over CMS’s objections, I found good cause to grant Petitioner’s motion to supplement.  *See*Docket Entry #20 in the Departmental Appeals Board (DAB) Electronic Filing System (E-File).  I permitted Petitioner to submit the declarations as well as an amended exhibit list.  CMS again objected to Petitioner’s request to cross-examine its witness, and requested to cross-examine Petitioner’s two witnesses for whom it had provided declarations.  Docket Entry #22 in DAB E-File.  I overruled CMS’s objection and granted Petitioner the opportunity to cross-examine CMS’s witness.  Docket Entry #23 in DAB E-File.

On December 4, 2019, I convened a telephone pre-hearing conference.  During the conference, I set this matter for a hearing.  On January 22, 2020, I convened the hearing via video teleconference (VTC).  A transcript (Tr.) was made of the proceeding.  I presided from the offices of the Departmental Appeals Board (DAB) in Washington, D.C.  Counsel for Petitioner, counsel for CMS, and CMS’s witness appeared at the hearing via VTC from the Los Angeles, California offices of Petitioner’s counsel.  At the hearing, Petitioner cross-examined Minerva Reyes, R.N., a state agency surveyor who participated in the survey of Petitioner’s facility.  CMS had intended to cross-examine Tracey Henry, who was Petitioner’s Director of Nursing (DON) at the time of the survey.3
  However, Petitioner did not produce Ms. Henry for cross-examination at the hearing.  Because the witness was not made available for cross-examination, CMS objected to the admission of Ms. Henry’s declaration (P. Ex. 15).  I sustained CMS’s objection and excluded P. Ex. 15.  Tr. at 7-10.  I admitted CMS Exs. 1-12 and P. Exs. 1‐14 into the record.  Tr. at 10-11, 21.

Following the hearing, each party submitted a post-hearing brief (CMS Posthrg. Br. and P. Posthrg. Br.) and a post-hearing reply brief (CMS Posthrg. Reply and P. Posthrg. Reply).

Page 4

II.  Issues

The issues in this case are:

Whether Petitioner failed to comply substantially with the Medicare participation requirements at 42 C.F.R. § 483.25(d)(1)-(2) (Tag F689); and, if not

Whether the per-instance CMP of $10,000 is reasonable.

III.  Jurisdiction

I have jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 42 U.S.C. §§ 1320a-7a(c)(2), 1395i‐3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

IV.  Discussion

**Statutory and Regulatory Framework**The Act sets requirements for SNFs to participate in the Medicare program and authorizes the Secretary of Health & Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3).  The Secretary’s regulations are found at 42 C.F.R. parts 483 and 488.4

To participate in the Medicare program, a SNF must maintain substantial compliance with program requirements.  To be in substantial compliance, a SNF’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  A deficiency occurs when a SNF fails to meet a participation requirement specified in the Act or regulations.  *Id.*  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  *Id.*

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. § 488.10.  The Act also authorizes the Secretary to impose enforcement remedies against SNFs that do not comply with the participation requirements.  Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)).  The regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance.  42 C.F.R. § 488.406.  Among other enforcement remedies, CMS

Page 5

may impose a per-instance CMP for each instance that a facility is not in substantial compliance.  42 C.F.R. § 488.430(a).  The regulations specify that a per-instance CMP will be in the range of $2,097 – $20,965, for each instance of noncompliance.5
   42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3.  CMS may also impose a DPNA when a SNF is not in substantial compliance.  Act § 1819(h)(2)(B)(ii) (42 U.S.C. § 1395i-3(h)(2)(B)(i)); 42 C.F.R. §§ 488.406(a)(2)(ii), 488.417(a).

Petitioner was also notified that it would be ineligible to conduct a NATCEP.  Pursuant to 42 C.F.R. § 483.151(b)(2) and (f), a state may not approve and must withdraw any prior approval of a NATCEP offered by a SNF or nursing facility that has been:  (1) subject to an extended or partial extended survey under sections 1819(g)(2)(B)(i) or 1919(g)(2)(B)(i) of the Act; (2) assessed a CMP of not less than $10,483 (45 C.F.R. § 102.3 (Table) (2017)); or (3) subject to termination of its participation agreement, a DPNA, or the appointment of temporary management.  Ineligibility or withdrawal of approval to conduct a NATCEP is mandatory if the conditions are satisfied; it is not a remedy that the state agency or CMS may decline to impose.  *See*42 C.F.R. § 488.406.  I note that the record does not reveal whether Petitioner was conducting a NATCEP.

If CMS imposes a remedy, such as a CMP, based on a noncompliance determination, then the facility may request a hearing before an administrative law judge to determine whether there was a basis for the deficiency findings that led to the imposition of the remedy and whether the CMP imposed was reasonable.  Act §§ 1128A(c)(2) (42 C.F.R. § 1320a-7a(c)(2)), 1819(h)(2)(B)(ii) (42 C.F.R. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  However, the facility may not appeal CMS’s choice of remedies.  42 C.F.R. § 488.408(g)(2).

A facility may only challenge CMS’s determination as to the scope and severity of noncompliance if a successful challenge would affect the range of the CMP that may be imposed or impact the facility’s authority to conduct a NATCEP.  42 C.F.R. § 498.3(b)(14), (d)(10)(i).  The CMS determination as to the level of noncompliance, including the finding of immediate jeopardy, “must be upheld unless it is clearly erroneous.”  42 C.F.R. § 498.60(c)(2); *Woodstock Care Ctr.*, DAB No. 1726 at 9, 39 (2000), *aff’d*, *Woodstock Care Ctr. v. Thompson*, 363 F.3d 583 (6th Cir. 2003).  Appellate decisions of the DAB have long held that the net effect of the regulations is that a provider has no right to challenge the scope and severity level assigned to a

Page 6

noncompliance finding, except in the situation where that finding was the basis for an immediate jeopardy determination.  *See, e.g*., *Koester Pavilion*, DAB No. 1750 (2000).

**Burden of Proof**CMS must make a prima facie showing that the facility failed to comply substantially with federal participation requirements.  If this occurs, the facility must prove substantial compliance by a preponderance of the evidence in order to rebut CMS’s showing and to prevail.  *Hillman Rehab. Ctr.*, DAB No. 1611 at 8 (1997), *aff’d sub nom Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs.*, No. Civ. A 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); *Batavia Nursing & Convalescent Ctr.*, DAB No. 1904 (2004), *aff’d sub nom Batavia Nursing & Convalescent Ctr. v. Thompson*, 129 F. App’x 181 (6th Cir. 2005); *Emerald Oaks*, DAB No. 1800 (2001); *Cross Creek Health Care Ctr.*, DAB No. 1665 (1998).

**Findings of Fact, Conclusions of Law, and Analysis*****Resident 1, who was at risk for falls and required the assistance of one or two persons for transfers, fell on November 26, 2017, and again on December 24, 2017, suffering lacerations and a hip re-fracture.6*****Resident 1**

At the time of the events at issue, Resident 1 was a 92-year-old man who was admitted to Petitioner’s facility from the hospital on October 26, 2017.  CMS Ex. 5 (part 1) at 5, 24, 31.7
   His diagnoses included displaced intertrochanteric fracture of the left femur, history of falling, difficulty in walking, muscle wasting and atrophy, Parkinson’s disease, and unspecified dementia without behavioral disturbance.  *Id.*at 6.  Resident 1’s physician noted, as part of an October 27, 2017 history and physical examination, that Resident 1 did not have the capacity to understand and make decisions.  *Id.* at 18.8

At the time of his admission, Petitioner’s staff completed a Clinical Health Status form dated October 26, 2017.  *Id.*at 24-31.  Among other things, the form assessed Resident 1 as being at risk for falls.  *Id.*at 26.  Staff documented that Resident 1 had fallen once or

Page 7

twice in the past six months and was wheelchair bound.  *Id.* Resident 1 had balance problems while standing and walking, exhibited jerking or was unstable when making turns, and had decreased muscular coordination.  *Id*.

Resident 1’s admission care plan, dated October 26, 2017, indicated, among other things, that Resident 1 was status post hip surgery, cognitively impaired due to mild dementia, and was at risk for fall injury secondary to a history of falls, a recent fall with fracture, and Parkinson’s disease.  CMS Ex. 5 (part 2) at 100.  The care plan further noted that, due to Parkinson’s disease, Resident 1 had a potential for injury from tremors and involuntary movements.  *Id.* at 103.  Care plan interventions included the following:  orient Resident 1 to the facility, bathroom, and call light system; assist with activities of daily living as needed; call light within reach.  *Id.*at 100.  With respect to Resident 1’s Parkinson’s disease, the care plan listed as an intervention that staff were to “[m]onitor environment for possible padding of side rails and special chair needs if involuntary movements put resident [at] risk for injury.”  *Id.*at 103.

A more specific “Fall/Injury Potential” care plan dated October 26, 2017, documented that Resident 1 was at risk for fall or injury and had a history of falls.  *Id.*at 101; *see also*P. Ex. 1 at 1.  Additionally, the care plan stated that Resident 1 did not use the call light9
 and had altered mobility, poor safety awareness, impaired cognition/communication, poor posture and positioning, impaired gait/balance, weakness/dizziness, intermittent pain, osteoporosis, and Parkinson’s disease.  *Id*.  The goals were for Resident 1 to have reduced or minimized risk for fall/injury and to have no major injury.  *Id*.**Among the interventions were the following:  provide safe and secure environment; use simple direction to establish and maintain consistent routine; monitor changes in alertness/increasing lethargy; bed in lowest position; mats on the floor; encourage use of call light; provide cueing and supervision as needed; and transfer with two persons.  *Id*.

Resident 1’s Minimum Data Set (MDS) assessment, with an assessment reference date of November 7, 2017, indicated that Resident 1’s preferred language was Armenian and that he needed an interpreter to communicate with health care staff.  CMS Ex. 5 (part 1) at 51, 53.  The MDS noted that Resident 1 had clear speech and that his Brief Interview

Page 8

for Mental Status (BIMS) score was 12.10
  *Id.*at 54, 55.  Resident 1’s BIMS score of 12 indicated that his cognition was on the borderline between intact cognition and moderate cognitive impairment.  The MDS assessed Resident 1 as being totally dependent on staff for activities of daily living (ADLs) such as bed mobility, transfers (to or from bed, chair, wheelchair, standing position), locomotion on and off the unit, dressing, toilet use, and personal hygiene.  *Id.* at 63.  According to the MDS assessment, Resident 1 required the physical assistance of one staff member for these ADLs.  *Id*.  Resident 1 used a walker and a wheelchair.  *Id.* at 64.  The MDS indicated that Resident 1 had not fallen at any time in the six months prior to his admission.  *Id.*at 74.11

**The November 26, 2017 fall**

Petitioner’s records show that Resident 1 fell on November 26, 2017, when he attempted to transfer himself from his wheelchair to his bed unsupervised and unassisted.  P. Exs. 1, 4; *see also* CMS Ex. 1 at 5; CMS Ex. 5 (part 1) at 32-33, 99; CMS Ex. 5 (part 2) at 101.  Resident 1 told the surveyor in an interview (during which a certified nursing assistant (CNA) interpreted for them both) that he called for help after he fell, but no staff member came to assist him.  CMS Ex. 4 at 3; *see also* CMS Ex. 12 at ¶ 19.

A Change in Condition report pertaining to falls/trauma documents that, around 2:00 p.m. on November 26, 2017, a CNA reported that Resident 1 was found lying face down on the floor mat next to his bed.  CMS Ex. 5 (part 1) at 33.  Staff assessed Resident 1 and found no injuries.  *Id.*  Resident 1 denied any pain or discomfort, and he was able to

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move his extremities.12
   Id. at 33, 44.  Nursing interventions included the following:  provide frequent supervision; provide a low bed and a floor mattress; put call light within reach and instruct Resident 1 to call for help and to use the call light for any assistance; bedrails; occupational and physical therapy; pain assessment; wheelchair positioning; and safety cues/reinforcement/reminder.  Id. at 32-33.  The report also summarized the recommendations of the Interdisciplinary Team (IDT), which I describe below.  Id. at 33.

The same day, Petitioner’s staff conducted a fall risk evaluation and assessed Resident 1 as being at high risk for potential falls.  CMS Ex. 5 at 22.

The IDT investigated Resident 1’s fall, and provided the following summary in the IDT Notes dated November 27, 2017:

[Resident 1] sustained an unwitnessed incident on 11/26/17 at approximately 2 PM, in which the resident was discovered on his bedside floor mat attempting to crawl into bed.  Upon investigation into the incident, it was determined that . . . [a]t approximately 1:55 pm, [Resident 1] propelled himself via [wheelchair] into his room and attempted to transfer himself from [wheelchair] to bed unassisted.  During the process of attempting to transfer himself, [Resident 1] felt weakness in his bilateral legs and sat himself down onto his bedside floor mat.  Once on the floormat, he began attempting to crawl into his low bed.  The resident was discovered by [LVN] who immediately began assessing the resident for injuries.

P. Ex. 3 at 1; CMS Ex. 5 (part 1) at 44. The IDT concluded that “[t]he cause of [Resident 1’s] fall is deemed to be the resident’s desire to perform ADLs on his own to achieve a sense of independence.” P. Ex. 3 at 2; CMS Ex. 5 (part 1) at 45.  The IDT responded with the following interventions: rehab department to conduct post-fall screening; pharmacy to review Resident 1’s medication regimen; nursing to monitor for orthostatic hypotension (sit vs. stand) for 72 hours; and reeducate Resident 1 on the importance of call light use during transfers.  P. Ex. 3 at 2; CMS Ex. 5 (part 1) at 45.  Petitioner’s staff revised Resident 1’s care plan to reflect the IDT’s recommended interventions.  P. Ex. 4; CMS Ex. 5 (part 1) at 99.

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**The December 24, 2017 fall**

Resident 1 fell again on December 24, 2017.  Petitioner’s progress notes document that around 10:35 a.m., a nurse observed Resident 1 sitting in his wheelchair at the nursing station.  P. Ex. 5; CMS Ex. 5 (part 1) at 42.  At 10:50 a.m., the nurse was with another nurse at the station when they heard a sound in the hallway.  They went to check and found Resident 1 on the floor face down, with his arms on the floor and legs between the footrest.  When they conducted a skin and body assessment, they found that Resident 1 had a 2.2 cm x 2.0 cm bump on his forehead, a 1.2 cm x 1.0 cm skin tear on his forehead with a small amount of blood, and a 2.0 cm x 1.0 cm skin tear on his left forearm with a small amount of blood.  Staff applied a cold compress to Resident 1’s forehead bump and treated his skin tears.  P. Ex. 5; CMS Ex. 5 (part 1) at 42.  Resident 1 was alert, awake, and verbally responsive.  Because Resident 1 spoke Armenian only, a staff member assisted with translation.  Resident 1 denied any pain or discomfort.  When asked what he was trying to do before he fell, he stated that he was trying to reposition himself while in his wheelchair and attempted to get up without any help, but lost his balance and fell to the floor.  P. Ex. 5; CMS Ex. 5 (part 1) at 42.  Resident 1’s physician ordered that Resident 1 be transferred to the hospital for further medical evaluation.  P. Ex. 5; CMS Ex. 5 (part 1) at 42.

Staff completed a Change in Condition Report, which documented that around 10:45 a.m. on December 24, 2017, Resident 1 fell in the hallway by the nursing station when he attempted to reposition himself in his wheelchair.  CMS Ex. 5 (part 1) at 34.  The report noted that Resident 1’s last fall occurred on November 26, 2017.  *Id*.  Resident 1 had pain, redness, swelling, and bruising to his forehead, and he had a skin tear on his left forearm.  *Id*.  Nursing interventions included the following:  provide frequent supervision every two hours at the nursing station; provide a low bed, with the call light within reach, and floor mats; redirect Resident 1 to call/wait for assistance; bed rails; assistive devices within reach; occupational therapy; wheelchair positioning; and safety cues/reinforcement/reminder.  *Id.* at 34-35.  The report also summarized the IDT’s recommendations, which I describe below.  *Id.* at 35.

The IDT investigated Resident 1’s second fall, and provided the following summary in the IDT Notes dated December 25, 2017:

[Resident 1] sustained an incident on 12/24/17 at approximately 10:50 am., in which [he] slid from his [wheelchair] to the floor near the station 300 nursing station.  Upon investigation into the incident, it was determined that [Resident 1] was last observed sitting comfortably in his [wheelchair] near the station 300 nursing station at approximately 10:40 am.  During this time, [Resident 1] was not noted to be sliding down from his [wheelchair].  At

Page 11

approximately 10:50 am, [two nurses] were documenting at the nursing station desk when they overheard a sound.  The nurses looked up from the desk and discovered that [the resident] had fallen out of his [wheelchair].  [Resident 1] was lying in a prone position with his arms extended forward and his feet underneath his [wheelchair] foot rests.  [The two nurses] immediately began tending to the resident and paged [RN/Supervisor] for assistance.  [RN Supervisor] responded promptly and began assessing the resident for injuries.

P. Ex. 6 at 1; CMS Ex. 5 (part 1) at 46. The IDT concluded that “[t]he cause of [Resident 1’s] fall is deemed to be the resident’s desire to readjust himself while seated in his [wheelchair] without requesting . . . assistance from staff.” P. Ex. 6 at 2; CMS Ex. 5 (part 1) at 47.  The IDT noted that Resident 1 was transferred to the emergency room for a CT scan of his head.  P. Ex. 6 at 2; CMS Ex. 5 (part 1) at 47.  The IDT responded with the following interventions:  rehab department to conduct post-fall screening and reassess whether Resident 1 would benefit from a reclining wheelchair; pharmacy to review Resident 1’s medication regimen; move Resident 1 to a room closer to the nursing station for closer observation; and monitor for orthostatic hypotension (sit vs. stand) for 72 hours.  P. Ex. 6 at 3; CMS Ex. 5 (part 1) at 48.  Petitioner’s staff revised Resident 1’s care plan after his fall, adding the new interventions.  P. Ex. 7; CMS Ex. 5 (part 1) at 95-98.

Petitioner’s staff conducted a fall risk evaluation on December 24, 2017, and assessed Resident 1 as being at high risk for potential falls.  CMS Ex. 5 (part 1) at 22.

At the emergency room, Resident 1 was diagnosed with a re-fracture of his left hip, influenza, and lacerations to his left forehead and face.  CMS Ex. 5 (part 2) at 141, 144.  Resident 1 was admitted to the hospital and underwent hip surgery on December 29, 2017.  CMS Ex. 5 (part 2) at 144, 147-49.

***Resident 2, who was at risk for falls and required the assistance of two persons for transfers, fell on November 22, 2017.*****Resident 2**

At the time of the event at issue, Resident 2 was an 89-year-old woman who was admitted from the hospital to Petitioner’s facility on November 10, 2017.13
  CMS Ex. 5 (part 2) at 152.  Her diagnoses included bilateral primary osteoarthritis of the knee, difficulty in walking, muscle wasting and atrophy, Alzheimer’s disease, unspecified psychosis, epilepsy, and hypertension.  *Id.* at 154.  Resident 2’s physician noted, as part

Page 12

of a November 2017 history and physical examination, that Resident 2 did not have the capacity to understand and make decisions.  *Id.* at 153.14

A “Fall/Injury Potential” care plan dated November 10, 2017, documented that Resident 2 was at risk for fall or injury.  P. Ex. 8 at 1; CMS Ex. 5 (part 2) at 155.  Additionally, the care plan noted that Resident 2 was at risk for spontaneous fracture related to osteoarthritis; she did not use the call light; she required assistance with toileting; and she had altered mobility, poor safety awareness, impaired cognition/communication, impaired gait/balance, seizure activity, and weakness/dizziness.  P. Ex. 8 at 1; CMS Ex. 5 (part 2) at 155.

The goals were for Resident 2 to have reduced or minimized risk of falls/injuries and to have no major injury.  P. Ex. 8 at 1; CMS Ex. 5 (part 2) at 155.  Interventions included:  provide a safe and secure environment; use simple direction to establish and maintain consistent routine; monitor changes in alertness/increasing lethargy; keep assistive device (wheelchair) within reach; reposition as needed for good body alignment and comfort; encourage use of call lights; provide cueing and supervision as needed; and transfer with two persons.  P. Ex. 8 at 1; CMS Ex. 5 (part 2) at 155.

Resident 2’s MDS, with an assessment reference date of November 16, 2017, indicated that Resident 2’s preferred language was Armenian and that she needed an interpreter to communicate with health care staff.  CMS Ex. 5 (part 2) at 172, 173.  The MDS noted that Resident 2 had unclear speech and that her BIMS score was 4, which indicated she had severe cognitive impairment.15
   *Id.* at 174, 175.  The MDS assessed Resident 2 as requiring extensive assistance for bed mobility, transfers, dressing, and eating, and she was totally dependent on staff for locomotion on and off the unit and toilet use.  *Id.*at 180.  For bed mobility and transfers, Resident 2 required the assistance of two or more staff members.  Resident 2 used a walker and a wheelchair.  *Id.* at 181.  In the section relating to fall history, the MDS indicated that Resident 2 had not fallen at any time in the six months prior to her admission to Petitioner’s facility.  *Id.* at 191.

**The November 22, 2017 fall**

Resident 2 fell from her wheelchair on November 22, 2017.  As documented in Petitioner’s progress notes, around 9:00 a.m. on November 22, 2017, a nursing student

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reported that he was with Resident 2 when she fell.  P. Ex. 9; CMS Ex. 6 (part 3) at 289.16
  The notes state that there was an investigation, and the student reported that Resident 2 insisted on getting up from her wheelchair.  When Resident 2 fell, staff “[w]ent to [her] right away [and] found [her] lying on the floor” with the student holding the wheelchair and Resident 2’s head up.  P. Ex. 9; CMS Ex. 6 (part 3) at 289.  Because Resident 2 spoke Armenian only, a staff member assisted with translation.  Staff conducted a skin and body assessment and found no injuries.  Resident 2 denied any pain or discomfort, and was able to move her extremities.  The progress notes state that frequent supervision would be provided.  P. Ex. 9; CMS Ex. 6 (part 3) at 289.

In a Change in Condition report, staff documented that around 9:00 a.m. on November 22, 2017, Resident 2 fell in the hallway by the nursing station.  P. Ex. 12 at 1; CMS Ex. 5 (part 2) at 168.  The report stated that Resident 2 “has poor safety awareness [secondary to] advanced dementia.  In her attempt to get up from [wheelchair] unassisted, she slid down from her [wheelchair] onto the floor.  No injuries were noted.”  P. Ex. 12 at 2; CMS Ex. 5 (part 2) at 169.  The report included the IDT’s interventions, which I describe below.  It also noted that her call light should be within reach.  P. Exs. 10, 12; CMS Ex. 5 (part 2) at 168-69.

The IDT conducted an investigation of Resident 2’s fall, and provided the following summary in the IDT Notes dated November 22, 2017:

[Resident 2] sustained a witnessed incident on 11/22/17 at approximately 9:00 am, in which she attempted to stand up from [wheelchair] and subsequently slid onto the floor.  Upon investigation into the incident, it was determined that [Resident 2] was last observed sitting comfortably at the nursing station (in her [wheelchair]) around 8:40 am.  During this time, [Resident 2] did not exhibit any signs of restlessness or attempts to get up unassisted.  At around 9:00 am, [Resident 2] attempted to stand up unassisted from her [wheelchair].  A student RN was present during this incident but was unable to reach the resident in time.  [Resident 2] subsequently slid from her [wheelchair] to the floor, touching down on her buttocks and then laying onto her back. . . . [RN Supervisor] was summoned by the student RN.  [RN

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Supervisor] responded immediately and began assessing the resident for injuries[.]

P. Ex. 10 at 1. The IDT concluded that “[t]he cause of [Resident 2’s] fall is deemed to be the resident’s poor safety awareness secondary to advanced dementia. [Resident 2] was seated near the nursing station when she unexpectedly attempted to stand up from her [wheelchair] unassisted.”  *Id.* at 2.  The IDT responded with the following interventions:  rehab department to conduct post-fall screening; place anti-thrust cushion in wheelchair to reduce risk of sliding off; and pharmacy to review resident’s medication regimen.  *Id*.

Petitioner updated Resident 2’s Fall/Injury Potential care plan on November 22, 2017, noting that Resident 2 “slid from [wheelchair] to floor.  No injuries sustained.”  P. Ex. 8 at 1.  The updated care plan incorporated the interventions recommended by the IDT.  *Id.*at 2.

A therapist in Petitioner’s Rehab Department conducted a post-fall screening on November 22, 2017.  The therapist noted, among other comments, that Resident 2 was “[status/post] assisted fall per [nursing],” and identified no current problems or potential risks.  P. Ex. 11 at 1.  According to the screening document, a nurse indicated that a physical restraint was not recommended for Resident 2 because it would increase agitation and contribute to psychological distress, and that an anti-thrust cushion was the least restrictive alternative.  *Id.* at 2.

The record shows that Petitioner also updated Resident 2’s general care plan on November 22, 2017, to indicate that Resident 2 had experienced an “assisted fall.”  P. Ex. 13.  This notation is inconsistent with other documents, including the IDT’s investigative report, which state only that Resident 2 slid from the wheelchair to the floor.  As I discuss in more detail below, I accord more weight to the IDT’s report and accept its findings that Resident 2 was not assisted when she fell.

***Petitioner did not comply substantially with the Medicare participation requirements at 42 C.F.R. § 483.25(d)(1)-(2) (Tag F689) because it failed to ensure that two residents, Resident 1 and Resident 2, received adequate supervision to prevent their foreseeable accidents.***Subsection 483.25(d) is part of the quality of care regulation at 42 C.F.R. § 483.25, which provides generally that “the facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices.”  Subsection 483.25(d) imposes specific obligations upon a facility to minimize accident hazards and prevent accidents, as follows:

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(d)  *Accidents*.  The facility must ensure that –

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

42 C.F.R. § 483.25(d)(1)-(2).17
   The regulation “come[s] into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm.”  *Meadowwood Nursing Ctr.*, DAB No. 2541 at 2 (2013) (citing *Meridian Nursing Ctr.*, DAB No. 2265 at 10 (2009), *aff’d*,*Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs.*, 604 F.3d 445 (7th Cir. 2010)).18

Pursuant to 42 C.F.R § 483.25(d)(2), a Medicare-certified SNF, such as Petitioner, is required to take “all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  *Briarwood Nursing Ctr.*, DAB No. 2115 at 5 (2007) (citing *Woodstock Care Ctr. v. Thompson*, 363 F.3d 583, 590 (6th Cir. 2003), *aff’g* *Woodstock Care Ctr.*, DAB No. 1726 (2000)).  Though a facility has the flexibility to choose the methods of supervision and assistance used to prevent accidents, it must also “‘provide supervision and assistance devices that reduce known or foreseeable accident risks to the highest practicable degree, consistent with accepted standards of nursing practice.’”  *Heritage Plaza Nursing Ctr.*, DAB No. 2829 at 6 (2017) (quoting *Century Care of*

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*Crystal Coast*, DAB No. 2076 at 6-7 (2007), *aff’d, Century Care of Crystal Coast v. Leavitt*, 281 F. App’x 180 (4th Cir. 2008)).

CMS alleges that Petitioner failed to comply with 42 C.F.R. § 483.25(d)(1)-(2) because it failed to adequately supervise Resident 1 and Resident 2 to protect them from avoidable falls.  *See, e.g.,*CMS Posthrg. Br. at 2.  Petitioner does not dispute that both Resident 1 and Resident 2 were “high fall risks,” but asserts that it provided them with adequate supervision and monitoring as required by 42 C.F.R. § 498.25(d)(1)-(2).  P. Posthrg. Br. at 7.  Petitioner claims that both residents were “known to be non-compliant with care” and that their falls were unforeseeable and could have been avoided had they only asked staff for assistance.  *Id*.

Petitioner’s assertions are unpersuasive.  The evidence shows that Petitioner failed to take all reasonable measures to adequately supervise Resident 1 and Resident 2 to prevent their accidents.  Petitioner’s observation that Resident 1 and Resident 2 were “known to be non-compliant with care” contradicts the contention that their falls were unforeseeable.  Regardless of the residents’ own actions or their level of safety awareness, Petitioner had an affirmative duty to provide them with adequate supervision to prevent accidents.  Because Petitioner failed to do so, I conclude that Petitioner did not comply substantially with 42 C.F.R. § 483.25(d)(2).

With respect to Resident 1’s first fall on November 26, 2017, Petitioner makes much of the fact that Resident 1 did not use his call light to request staff assistance before he attempted to transfer from his wheelchair to his bed.  P. Posthrg. Br. at 2.  Petitioner contends that Resident 1 was “alert and oriented” when he fell and “was well versed in using his call light to alert staff that he needed assistance.”  *Id.*  Petitioner argues that Resident 1 could have avoided falling if he had simply used his call light, essentially blaming the fall on the resident himself.  *Id.* at 3, 7.

Petitioner’s arguments ignore its own assessments of Resident 1.  The record shows that Petitioner’s staff members were well aware that Resident 1 displayed poor safety awareness, was noncompliant with care (including instructions to use his call light), and required the assistance of one or two staff members for transfers.  For example, Resident 1’s “Fall/Injury Potential” care plan dated October 26, 2017, noted that the resident was at risk for fall or injury, had a history of falls, had poor safety awareness, did not use his call light, and required 2-person assistance for transfers.  P. Ex. 1 at 1; CMS Ex. 5 (part 2) at 101.  According to his MDS assessment, Resident 1 was totally dependent on staff for transfers to or from his bed and wheelchair, requiring the assistance of one person.  CMS Ex. 5 (part 1) at 63.  Further, his care plan noted, among other things, that, due to Parkinson’s disease, Resident 1 had a potential for injury from tremors and involuntary movements.  CMS Ex. 5 (part 2) at 103.

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When Resident 1 attempted to transfer himself from his wheelchair to his bed on November 26, 2017, he was alone and unsupervised.  CMS Ex. 5 (part 1) at 32-33, 99; CMS Ex. 5 (part 2) at 101.  No staff member was present to assist him as required by his care plans and MDS.  Resident 1 stated that he called for help after he fell, but no staff member came to assist him.  CMS Ex. 4 at 3; *see also*CMS Ex. 12 at ¶ 19.  Given Resident 1’s impaired cognition, Parkinson’s disease, poor safety awareness, and his total dependence on staff for transfers, it was plainly foreseeable that he might experience a fall if he attempted to transfer from his wheelchair to his bed by himself.  Moreover, in an interview with Surveyor Reyes, one of Petitioner’s nurses stated that Resident 1 was not to be left unattended in his wheelchair because he had a prior fall history and Parkinson’s disease, which causes loss of control of the body.  CMS Ex. 4 at 12; *see also*CMS Ex. 12 at ¶ 12 (p. 5).

It was also foreseeable, based on the “Fall/Injury Potential” care plan, that a situation would arise in which Resident 1 would exhibit not only poor safety awareness, but also fail to use his call light to request assistance.  Even if it were true that Resident 1 deliberately chose not to use his call light, as Petitioner seems to imply without any evidence, this fact provides no defense to Petitioner and does not excuse its failure to adequately supervise him to prevent a foreseeable accident.19
  Indeed, given that Petitioner’s staff knew that Resident 1 often failed to use the call light, despite repeated reminders and education, it behooved them to consider and implement other interventions to keep him safe.  “[I]f a facility implements accident prevention measures for a resident but has reason to know that those measures are substantially ineffective in reducing the risk of accidents, it must act to determine the reasons for the ineffectiveness and to consider – and, if practicable, implement – more effective measures.”  *Residence at Kensington Place*, DAB No. 1963 at 9 (2005) (citing *Woodstock Care Ctr.*, DAB No. 1726 at 28).

Petitioner’s records demonstrate that there were other measures that Petitioner might have implemented to protect Resident 1 from falls.  Resident 1’s “Fall/Injury Potential”

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care plan contained a checklist of possible approaches and interventions.  Among other things, Petitioner’s staff checked “[p]rovide safe, secure environment,” “bed in lowest position,” and “mats on the floor.”  P. Ex. 1 at 1; CMS Ex. 5 (part 2) at 101.  The care plan form lists other possible interventions as well, including “tab alarm when in [wheelchair]” and “pressure sensitive alarm in bed . . . [or] wheelchair.”  P. Ex. 1 at 1; CMS Ex. 5 (part 2) at 101.  However, as far as the record reveals, Petitioner did not implement either a bed or chair alarm for Resident 1.  Petitioner has not explained why it failed to consider using a wheelchair alarm for Resident 1, given that staff members knew of his poor safety awareness and his tendency to not use the call light.  Petitioner therefore did not take “all reasonable precautions against [Resident 1’s] accidents.”  *See Briarwood Nursing Ctr.*, DAB No. 2115 at 5.

As stated above, it is Petitioner’s responsibility under 42 C.F.R. § 483.25(d)(1)-(2) to protect its residents from foreseeable accidents.  I find that Petitioner failed to provide Resident 1 with adequate supervision on November 26, 2017, to prevent his fall.  I thus conclude that, with respect to Resident 1’s fall on November 26, 2017, Petitioner was out of substantial compliance with 42 C.F.R. § 483.25(d).

Regarding the other fall incidents at issue, Petitioner argues that its staff appropriately placed Resident 1 and Resident 2 in front of the nursing station, and the nurses at the station “maintain[ed] line of sight monitoring” of the residents.  P. Posthrg. Br. at 7.  Petitioner contends that, in addition to the nurses, any staff member passing by or in the vicinity of the station also had the responsibility to watch residents placed near the station, and this system ensured “facility wide visual monitoring and supervision.”  P. Posthrg. Reply at 3; *see* P. Posthrg. Br. at 4.  Further, Petitioner disputes that supervision of the residents would be hindered by the nurses multi-tasking at the nursing station.  P. Posthrg. Br. at 4; *see also*P. Posthrg. Reply at 3.

I am not persuaded by Petitioner’s arguments.  The evidence shows that Petitioner failed to provide adequate supervision to Resident 1 and Resident 2 while they were in their wheelchairs near the nursing station.  In fact, at the time of their falls, no member of Petitioner’s staff was monitoring the residents.  As a result, both residents experienced foreseeable accidents, with Resident 1 suffering actual harm in the form of lacerations and a fractured hip.

In its summary of Resident 1’s fall on December 24, 2017, the IDT stated:

At approximately 10:50 am, [two nurses] were documenting at the nursing station desk when they overheard a sound.  The nurses looked up from the desk and discovered that [Resident 1] had fallen out of his [wheelchair].  The resident was lying in a prone position with his arms extended forward and his feet underneath his [wheelchair] foot rests.

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P. Ex. 6 at 1. Similarly, in its summary of Resident 2’s fall on November 22, 2017, the IDT stated:

At around 9:00 am, [Resident 2] attempted to stand up unassisted from her [wheelchair].  A student RN was present during this incident but was unable to reach the resident in time.  [Resident 2] subsequently slid from her [wheelchair] to the floor, touching down on her buttocks and then laying onto her back.

P. Ex. 10 at 1.

The findings of the IDT contradict Petitioner’s claim that Resident 1 and Resident 2 were under “close visual monitoring” not only by the nurses at the nursing station, but also by any staff person who happened to be in the vicinity of the station.  The IDT’s findings also provide little support for Petitioner’s claim that the nurses at the station could adequately supervise multiple residents near the station while simultaneously performing other tasks.  In contrast, Surveyor Reyes’s written direct testimony states that she observed “staff at that nursing station worked on other assignments, and did not actively monitor the residents in wheelchairs in the room near [the nursing station].”  CMS Ex. 12 at ¶ 25.  Surveyor Reyes further testified that “nurses utilized that station to chart patient records, review medical documents, or speak on the telephone to communicate with physicians or other medical professionals.”  *Id*.

Petitioner has not rebutted or denied Surveyor Reyes’ description of the multiple responsibilities and tasks carried out by the nurses at the nursing station.  Instead, Petitioner merely downplays the surveyor’s concern, contending that multi-tasking “hardly equates to a failure to supervise.”  P. Posthrg. Br. at 4.  Contrary to Petitioner’s position, however, its own records substantiate that at the time Resident 1 fell on December 24, 2017, its nurses were engaged in other assignments and their attention was elsewhere.  This amounted to a failure to supervise Resident 1, who fell and sustained serious injuries.

When Resident 1 fell, two nurses were at the nursing station; however, both were so occupied with their “documenting” tasks that they only “looked up from the desk” when they heard a sound, and then realized that Resident 1 had fallen from his wheelchair.  P. Ex. 6 at 1.  Moreover, as reflected by the IDT notes, no one else happened to be in the vicinity when Resident 1 fell.  *Id.* As such, to the extent that other staff besides the nurses at the station were expected to provide additional supervision when passing through the area, this monitoring failed to occur as well.

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In finding that Petitioner’s staff did not provide adequate supervision for Resident 1, I rely on Surveyor Reyes written direct testimony, which I find credible.  Her testimony undermines Petitioner’s contention that its nurses were visually monitoring Resident 1 when he fell.  During the survey, Surveyor Reyes interviewed various members of Petitioner’s staff and made contemporaneous notes of those interviews.  CMS Ex. 12 at ¶ 6; *see also*CMS Ex. 4.  I find it is more likely than not that the surveyor notes accurately reflect the content of the interviews Surveyor Reyes conducted.

Surveyor Reyes interviewed CNA Ortiz by telephone at or about 2:51 p.m. on March 21, 2018.  CMS Ex. 4 at 14.  According to Surveyor Reyes’ notes, CNA Ortiz stated that she was assigned to care for Resident 1 on December 24, 2017.  *Id.*; *see also*CMS Ex. 14 at ¶ 21.  CNA Ortiz told Surveyor Reyes that, on that day, around 10:30 or 10:45 a.m., she placed Resident 1 in a wheelchair in a room by the nursing station.  *Id*.  The CNA stated that the residents who are at high risk for falls are placed by a table.  CMS Ex. 4 at 14.  The CNA told Surveyor Reyes that “she didn’t go back to check on [Resident 1] because she had other residents.”  *Id.*; *see* also CMS Ex. 12 at ¶ 22.  According to Surveyor Reyes’ notes, CNA Ortiz stated, “no one is assigned [to the residents] just whoever is passing by or sitting in the [nursing] station.”  CMS Ex. 4 at 14; *see* *also*CMS Ex. 12 at ¶ 22.

Petitioner contends that Surveyor Reyes’s notes and her written direct testimony are unreliable.  *See, e.g.,*P. Posthrg. Reply at 2.  Petitioner asserts specifically that the statements Surveyor Reyes attributes to CNA Ortiz are “incorrect” in light of CNA Ortiz’s statements in her own declaration.20
   P. Posthrg. Reply at 2; *see* P. Ex. 14.  Petitioner contends, moreover, that CNA Ortiz established with her testimony that Resident 1 and other residents placed near the nursing station were monitored by the nurses at the nursing station as well as by herself and other staff.  P. Posthrg. Reply at 2.  However, I do not find that CNA Ortiz’s written testimony contradicts the statements recorded by Surveyor Reyes.

In her declaration, CNA Ortiz states, among other things:

My custom and practice is that once [Resident 1’s] needs were met, if he wanted to sit up in his wheelchair, I would take him near the nursing station 300 for supervision by the nurses at the station who would supervise him and visually monitor him.  Nurses were present at the nursing station when [Resident 1] was near the nursing station.  In addition, I continued to frequently visually monitor [Resident 1] as well.

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P. Ex. 14. Although CNA Ortiz states that it was her “custom and practice” to place Resident 1 in his wheelchair near the nursing station where the nurses there would supervise him, she does not affirmatively describe what occurred on December 24, 2017. I find it significant that CNA Ortiz’s declaration does not mention that she was assigned to Resident 1 on December 24, 2017; that she placed Resident 1 in his wheelchair in a room by the nursing station around 10:30 or 10:45 a.m.; and that “she didn’t go back to check on [Resident 1] because she had other residents.”  *Compare*P. Ex. 14 *with*CMS Ex. 4 at 14.  Yet, although CNA Ortiz does not mention these details, neither does she deny any of the statements attributed to her by Surveyor Reyes.  I therefore find no support for Petitioner’s claim that Surveyor Reyes misrepresented CNA Ortiz’s statements.

I also find nothing in CNA Ortiz’s testimony which establishes that, on December 24, 2017, either she or the nurses at the nursing station had Resident 1 under continual visual monitoring after she had placed him there.  For example, CNA Ortiz did not testify that she “frequently visually monitor[ed]” Resident 1 on December 24, 2017.  Rather, she states that it was her “custom and practice” to do so.  Moreover, any inference that she acted consistent with this “custom and practice” on December 24, 2017, is contradicted by her statement to Surveyor Reyes that she didn’t go back to check on Resident 1 after she placed him by the nursing station.  *See*CMS Ex. 4 at 14.  Since CNA Ortiz never went back to check, she could not have any first-hand knowledge as to whether any other staff members were supervising Resident 1 while he was near the nursing station on December 24, 2017.

On March 22, 2018, at or about 11:42 a.m., Surveyor Reyes interviewed one of Petitioner’s RN Supervisors.  CMS Ex. 4 at 16.  According to the surveyor notes, the RN Supervisor told Surveyor Reyes that she saw Resident 1 in the hallway by the nursing station around 10:35 a.m. on December 24, 2017.  *Id.*; *see also*CMS Ex. 12 at ¶ 23.  The RN Supervisor stated that a charge nurse and a new nurse who was receiving orientation were at the nursing station at that time.  The RN Supervisor told Surveyor Reyes that “usually CNAs are told to bring residents who are [at] risk for falls to the “big table” by the nursing station, but no staff is assign[ed] to supervise” that area.  CMS Ex. 4 at 16; *see also* CMS Ex. 12 at ¶ 23.  The RN Supervisor stated further that “whoever is sitting in the nursing station and whoever passes is responsible to ‘keep an eye’ [on the residents].”  CMS Ex. 4 at 16; *see* CMS Ex. 12 at ¶ 23.  When Surveyor Reyes asked whether there were times when residents were left unsupervised, the RN Supervisor responded “maybe.”  CMS Ex. 4 at 16; *see* CMS Ex. 12 at ¶ 23.  The RN Supervisor stated that around 10:50 a.m., she “heard a sound of a fall” and at that time, she “was inside the nursing station talking to [the charge nurse] regarding [an]other resident’s case when she heard the sound . . . and . . . saw [Resident 1] face down on the floor.”  CMS Ex. 4 at 16; *see* CMS Ex. 12 at ¶ 23.

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Moreover, Surveyor Reyes’s interviews of CNA Ortiz and the RN Supervisor are entirely consistent with Petitioner’s IDT findings, to which I accord significant weight.  As noted above, based on its investigation of Resident 1’s December 24, 2017 fall, the IDT found that the two nurses at the nursing station “looked up from the desk” when they heard a sound and discovered that Resident 1 had fallen from his wheelchair.  P. Ex. 6 at 1.  The unmistakable inference from the IDT report is that the nurses at the nursing station were not looking at Resident 1 when he fell.  Petitioner has offered nothing to contradict this inference.  If in fact the nurses were monitoring Resident 1 and had him in their line of sight, as Petitioner alleges, Petitioner undoubtedly would have offered such testimony.  However, Petitioner did not obtain affidavits or declarations from either one of the two nurses at the nursing station, or from the RN Supervisor, who was also at the station when Resident 1 fell.

In an attempt to overcome this obstacle, Petitioner contends that Surveyor Reyes testified that “the nurses at the nurse’s station maintained a visual line of [sight] on Resident 1 and could have heard Resident 1 ask for assistance had he asked.”  P. Posthrg. Br. at 4 (citing Tr. at 55‐56).  However, I disagree with Petitioner’s characterization of Surveyor Reyes’s testimony.  Petitioner cites to the following exchange:

Q:  How many feet were between the residents placed in front of the nursing station and the nursing station? . . .

A:  I measure with the maintenance personnel, but I don’t remember if I have it on my notes or not.

Q:  Based on your recollection, was it more than 5 feet?

A:  (Inaudible).

Q:  But it was a visual line of sight, correct?

A:  It was.

Q:  So the nurses would have been able to hear a resident had a resident spoken?

A:  It depends how far the resident was from that particular nurse.

* * * *

Q:  Had Resident 1 requested . . . assistance before attempting to reposition in his wheelchair, the nurses at the nursing station would have heard him, correct?

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A:  Probably so, yes, if the resident was loud enough.

Tr. at 55-56.

Contrary to what Petitioner asserts, Surveyor Reyes did not testify that the nurses at the station had Resident 1 in their line of sight when he was in front of the station on December 24, 2017.  Rather, Surveyor Reyes stated, in the most general manner, that nurses at the nursing station could have a visual line of sight of residents placed in front of the station.  I do not find that the above-quoted testimony from Surveyor Reyes establishes or even supports an inference that, on December 24, 2017, the nurses at the nursing station had Resident 1 in their line of sight when he fell.  Nor did Surveyor Reyes testify that the nurses would have heard Resident 1 if he had asked for assistance; rather, she qualified her response, stating that if he spoke loudly, the nurses may have heard him.  Thus, nothing in Petitioner’s cross-examination of Surveyor Reyes undermines my conclusion that no member of Petitioner’s staff was monitoring Resident 1 when he fell on December 24, 2017.

In summary, I find nothing in the record to support Petitioner’s claim that any member of its staff was visually monitoring Resident 1 at the time of his fall on December 24, 2017.  Although the CNA placed Resident 1 near the nursing station, where up to three nurses were working, the record shows that the nurses were not supervising Resident 1 nor keeping him within their line of sight, because all of them were occupied with other tasks.  Moreover, despite Petitioner’s assertion that the area around the nursing station was “high traffic,” it appears that the only staff present were those at the nursing station.

With respect to Resident 2, Petitioner’s staff also failed to adequately supervise her while she was in her wheelchair by the nursing station, and she fell when she tried to stand up.****While there is no dispute that a nursing student was the only staff present at the time of the incident, I note that Petitioner’s records contain an internal discrepancy as to the student’s actions when Resident 2 fell. ****In a post-fall screening document and an updated care plan, Petitioner noted that Resident 2 had an “assisted fall” and claims that when Resident 2 stood up, she “was assisted to the floor” by the nursing student.  P. Ex. 11 at 1; P. Ex. 13; P. Posthrg. Br. at 5.  Other documents, however, do not describe any such actions by the student.  I note that the updated fall/injury potential care plan and the Change in Condition report state that Resident 2 slid from the wheelchair to the floor.  P. Ex. 8 at 1; P. Ex. 12.21
  The IDT, in its investigative summary, also did not indicate

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that the nursing student assisted Resident 2 to the floor.  The IDT stated that Resident 2 “attempted to stand up unassisted from her [wheelchair].  A student [nurse] was present during this incident but was unable to reach the resident in time.  [Resident 2] subsequently slid from her [wheelchair] to the floor, touching down on her buttocks and then laying onto her back.”  P. Ex. 10 at 2.

Petitioner argues that at the hearing, the surveyor agreed that a progress note (P. Ex. 9) reflected that the student nurse assisted Resident 2 to the floor.  P. Posthrg. Br. at 5 (citing Tr. at 70-71).  However, the surveyor subsequently testified that the IDT notes at P. Ex. 10 do not indicate that the student nurse assisted Resident 2 when she fell.  Tr. at 73‐74.  Given that the IDT investigated the cause of Resident 2’s accident, I accord more weight to the IDT’s notes and find them to be more reliable.  Petitioner has not shown that some other entity had the responsibility for investigating the incident nor does the record suggest that any member of Petitioner’s staff witnessed the nursing student assisting Resident 2.  Finally, Petitioner did not offer testimony from the staff member to whom the nursing student allegedly reported assisting Resident 2 to the floor.  In the absence of such evidence, I accept the IDT’s finding that the nursing student, although present, did not reach Resident 2 in time to assist her when she fell from her wheelchair.22

CMS takes the position that even if the nursing student had assisted Resident 2, this supervision would not have been adequate since the student was unlicensed.  Citing Surveyor Reyes’s written direct testimony, CMS claims that the standard of care at a SNF is for licensed medical professionals to care for its residents, and that, by entrusting Resident 2’s care to a student, Petitioner breached the standard of care.  CMS Posthrg. Br. at 7-8 (citing CMS Ex. 12); *see* Tr. at 67.  In response, Petitioner argues that “this is an inappropriate standard in a long-term care setting,” noting that CNAs in California are permitted to give assistance in certain areas even though they are not licensed nursing personnel.  P. Posthrg. Br. at 5.  CMS counters this argument by asserting that, even if

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CNAs are not licensed, they are nevertheless healthcare professionals who undergo training and must be certified by the state agency.23
  CMS Posthrg. Reply at 2-3.

I agree with CMS that if the nursing student was providing the only “supervision” of Resident 2, this was inadequate.  Regardless of whether a CNA acting within the scope of his or her certification might properly supervise a resident, it is undisputed that the individual was a *student*; that is, he had not yet completed his training, whether as a nurse or as a CNA.  I infer that, as a student, the individual would provide care under the supervision of Petitioner’s nursing staff (or some other qualified instructor).  *See, e.g.*, 42 C.F.R. § 483.152(a)(5).  Yet, as I discuss in the following paragraphs, Petitioner has not shown that its staff were supervising the activities of the nursing student any more than they were supervising the residents.

The record shows that at the time Resident 2 fell out of her wheelchair she was unsupervised.  The IDT’s findings do not support Petitioner’s position that its staff had Resident 2 in their line of sight.  The only person present was the nursing student, who did not reach Resident 2 until after she had slid to the floor.  It is evident that no staff member, either at the nursing station or in the vicinity, was actually monitoring Resident 2, let alone supervising the nursing student.

Petitioner asserts that, under its system, “all staff knew to monitor” the fall-risk residents placed near the nursing station in their wheelchairs.  P. Posthrg. Reply at 3.  In reality, however, Petitioner’s approach essentially diluted the responsibility for the crucial task of monitoring and supervision both of residents and, apparently, of nursing students.  Petitioner’s system relied on an indeterminate group of staff, some of whom may not even have been aware that such responsibility lay with them as they passed through the nursing station area.  Because Petitioner did not assign specific staff to watch the residents, there was no guarantee that residents placed in front of or near the nursing station, such as Residents 1 and 2, would be adequately monitored and supervised while in their wheelchairs.  Under Petitioner’s approach, there might be occasions on which no nurse was at the nursing station and no staff member was passing through the area and, accordingly, no one would be available to monitor or assist the residents.  Thus, whether the residents received adequate monitoring would be left to chance.  Indeed, Petitioner’s

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own RN Supervisor conceded that, under Petitioner’s system, there might be times when residents were left unsupervised.  *See*CMS Ex. 4 at 16.

Moreover, even when nurses were present at the nursing station, Petitioner’s system failed to acknowledge that the nurses would be occupied with other tasks, and their attention would be divided, at best.  As the record shows with Resident 1, the nurses at the station were busy with other responsibilities and not focused on him at the time of his fall.  Far from having an effective system in place, Petitioner’s so-called monitoring system was flawed and ineffective.  Had Petitioner’s staff been monitoring Residents 1 and 2 after they were placed in front of the nursing station, staff would have seen the residents attempting to get up from their wheelchairs and could have taken action to prevent their falls.  Alternatively, had Petitioner provided Resident 1 and Resident 2 with chair alarms, staff may have been alerted by the sound of the alarm of the need to provide assistance.

In summary, I conclude that Petitioner failed to take all reasonable steps to provide Residents 1 and 2 with adequate supervision and assistive devices to prevent their accidents.  Petitioner’s failures put both residents at risk for more than minimal harm.  Indeed, Resident 1 suffered lacerations and a hip re-fracture as a result of his second fall.  Petitioner was thus out of substantial compliance with the requirements of 42 C.F.R. § 483.25(d)(1)-(2).

***The per-instance CMP imposed, in the amount of $10,000, is reasonable.***My authority to review the reasonableness of a CMP imposed by CMS is limited by 42 C.F.R. § 488.438(e).  The limitations are:  (1) I may not set the CMP at zero or reduce it to zero; (2) I may not review CMS’s exercise of discretion to impose a CMP; and (3) I may only consider the factors specified by 42 C.F.R. § 488.438(f) when determining the reasonableness of the CMP amount.  The factors in section 488.438(f) include:  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) the factors specified in 42 C.F.R. § 488.404; and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  The absence of culpability is not a mitigating factor.  The factors listed in § 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.

Unless a facility contends that a particular regulatory factor does not support the CMP amount, the administrative law judge must sustain it.  *Coquina Ctr.*, DAB No. 1860 at 32 (2002).  My review of the reasonableness of the CMP is *de novo* and based upon the evidence in the record before me.  I am not required to defer to CMS’s determination of the reasonable amount of the CMP to impose, but I may only consider the regulatory

Page 27

factors described above.  My role is to determine whether the amount of any CMP imposed is “within reasonable bounds” considering the purpose of the Act and regulations.  *Emerald Oaks*, DAB No. 1800 at 12; *see also CarePlex of Silver Spring*, DAB No. 1683 at 17 (1999).

In this case, CMS imposed a $ 10,000 per-instance CMP, which falls in the middle of the CMP range in effect at the time CMS imposed the remedy.24
  42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3 (Table) (2017).  CMS argues that the proposed CMP is reasonable for Petitioner’s violation of 42 C.F.R. § 483.25(d)(1)-(2) based on consideration of the relevant regulatory factors at 42 C.F.R. § 488.438(f).  CMS Br. at 12-13.  CMS points out that Petitioner “never disputed [the CMP’s] reasonableness.”  CMS Posthrg. Br. at 10.  It is true that Petitioner made no reference to the CMP in its request for hearing or its pre‐hearing brief.  However, Petitioner did challenge the CMP in its post-hearing submissions.  In its post-hearing reply, Petitioner argues that the CMP should be rescinded because it is unwarranted, unreasonable, and not supported by the regulatory factors.  P. Posthrg. Reply at 4-5.  Specifically, Petitioner argues that:  it does not have a history of noncompliance, including repeat deficiencies; “[t]he seriousness and scope of the alleged deficiencies . . . demonstrates no actual harm and did not constitute a pattern;” and it was not “culpable relative to these accidental events.”  *Id.* at 5.

Contrary to Petitioner’s position, I conclude that Petitioner’s noncompliance was serious.  Despite having assessed Resident 1 and Resident 2 as fall risks, and being aware of their impaired cognition, poor safety awareness, and need for staff assistance with transfers, Petitioner failed to adequately monitor and supervise them while they were in their wheelchairs.  While Petitioner denies that the accidents caused actual harm, Resident 1 did suffer actual harm, sustaining lacerations and a hip re-fracture due to his second fall.  That Resident 2 was not injured when she fell can be attributed to mere good fortune, and not to any actions taken by Petitioner’s staff.  The facts demonstrate that Petitioner was plainly culpable (in the sense that it was responsible) for failing to protect Resident 1 and Resident 2 from their foreseeable accidents.  Furthermore, it is evident that Petitioner’s failure to supervise could potentially have resulted in other vulnerable residents experiencing falls or other accidents while left sitting in their wheelchairs, whether in their rooms or in front of the nursing station.25

Page 28

Further, although Petitioner claims that it does not have a history of noncompliance or repeated deficiencies, the evidence shows otherwise.  CMS offered in evidence – without objection from Petitioner – a document titled “AEM Nursing Home Enforcement History,” which shows Petitioner’s compliance history from October 1, 2004 through June 21, 2018.  CMS Ex. 9.  According to the report, Petitioner has a history of regulatory noncompliance since 2004.  The most serious deficiencies cited in prior surveys were at scope and severity level G (isolated noncompliance that causes actual harm that is not immediate jeopardy), as follows:

Tag F323 (free of accident hazards/supervision and assistive devices) survey exit date August 9, 2016 (CMS Ex. 9 at 5);
	Tag F314 (treatment/services to prevent/heal pressure ulcers) survey exit date June 27, 2016 (CMS Ex. 9 at 6);
	Tag F323 (free of accident hazards/supervision and assistive devices) survey exit date March 1, 2016 (CMS Ex. 9 at 6);
	Tag F315 (bowel/bladder incontinence, catheter, urinary tract infection) and Tag F327 (nutrition/hydration status maintenance) survey exit date April 15, 2013 (CMS Ex. 9 at 8).26Among the G-level deficiencies, Petitioner was cited for a deficiency under Tag F323 at two different surveys in March and August 2016.  Thus, the report establishes that Petitioner had repeat deficiencies and past noncompliance with the participation requirements governing accident hazards and supervision, which are the same requirements at issue in this case.

Petitioner offered no evidence that its financial condition affects its ability to pay the CMP.  Unless a facility contends that a particular regulatory factor does not support the CMP amount, an administrative law judge must sustain it.  *Coquina Ctr.*, DAB No. 1860 (2002).

Page 29

Based on the seriousness of Petitioner’s noncompliance, and Petitioner’s past history of noncompliance with the participation requirements for supervision and accident prevention, I conclude that the $10,000 per-instance CMP is reasonable.

***CMS lawfully imposed a DPNA on Petitioner from April 28, 2018 through May 16, 2018.***In addition to the per-instance CMP, CMS also imposed a discretionary DPNA from April 28 through May 16, 2018.  CMS Ex. 11 at 2.  CMS is authorized to impose a DPNA “for any days on which a SNF is not in substantial compliance.”  *Rosewood Care Ctr.**of**Rockford*, DAB No. 2466 at 20 (2012) (citing 42 C.F.R. § 488.417(a)).  For the reasons explained in the prior sections of this decision, I have concluded that Petitioner was out of compliance with the participation requirements at 42 C.F.R. § 483.25(d)(1)-(2).  CMS determined that Petitioner returned to substantial compliance on May 17, 2018, and Petitioner has not argued that it returned to compliance prior to that date.  CMS Ex. 11 at 2.  I thus conclude that CMS was authorized to impose a DPNA during the period April 28 through May 16, 2018, and that the DPNA is a reasonable enforcement remedy.

***Because CMS imposed a DPNA, Petitioner’s approval for its NATCEP must be withdrawn as a matter of law.***Neither party discussed CMS’s withdrawal of Petitioner’s NATCEP approval.  In the April 13, 2018 notice letter, CMS informed Petitioner that the withdrawal of approval for Petitioner’s NATCEP was based on both “the imposition . . . of the [DPNA] and substandard quality of care.”  CMS Ex. 10 at 3.  I find that CMS does not have a basis for withdrawing Petitioner’s NATCEP approval based on a finding that Petitioner provided substandard quality of care27
 because CMS has not alleged that an extended or partial extended survey was conducted in this case.

However, CMS also notified Petitioner that the withdrawal of NATCEP approval was based on the imposition of the DPNA.  CMS Ex. 10 at 3; 42 C.F.R. § 483.151(f)(1).

Page 30

Because a DPNA was imposed, CMS was thus required by law to prohibit Petitioner from conducting a NATCEP.  42 C.F.R. § 483.151(f)(1).

***Other issues raised by Petitioner are without merit.***In its hearing request and post-hearing brief, Petitioner argues that the “survey findings do not reflect an appropriate and fair survey process” and that the surveyor “failed to conduct a complete and competent investigation.”  Request for Hearing at 2; P. Posthrg. Reply at 2.  Petitioner contends also that the surveyor “misstated percipient witnesses” and there is no corroboration for her hearsay statements.  Request for Hearing at 2; P. Posthrg. Reply at 2.  Petitioner suggests that, because of these alleged failings by the surveyor, the record lacks evidence that it was out of substantial compliance with participation requirements.  Request for Hearing at 2.

Petitioner’s arguments lack merit.  In this proceeding I have afforded Petitioner a de novo review.  A de novo review means that I decide the issues “without deference to CMS’s or the state survey agency’s factual findings or legal conclusions and based on [my] own evaluation of the credibility of the submitted evidence.”  *Avon Nursing Home*, DAB No. 2830 at 12 (2017) (citing *N.C. State Veterans Nursing Home, Salisbury*, DAB No. 2256 at 24 (2009)).

Moreover, the regulations are clear that “inadequate survey performance does not . . . [i]nvalidate adequately documented deficiencies.”  42 C.F.R. § 488.318(b)(2).  As the *Avon* decision explained:

[U]nder the governing administrative appeal regulations, the ultimate issue before an [Administrative Law Judge] is not how the state agency performed the survey or what process it followed to reach its conclusions, but “whether the *evidence* as it is *developed before the [Administrative Law Judge]* supports” CMS’s independent “finding of noncompliance” under the relevant participation requirements.

*Avon Nursing Home*, DAB No. 2830 at 11 (emphasis in original) (citing *Sunshine Haven of Lordsburg*, DAB No. 2456 at 21 (2012)).  The *Avon* decision also emphasized that “a state agency’s survey findings constitute *recommendations* to CMS.”  *Id*. at 14 (emphasis in original) (citing 42 C.F.R. §§ 488.11, 488.12).  The decision further explained that “CMS makes its own determination of noncompliance, and decides what enforcement action to take, based on the survey’s findings.”  *Id*.  Thus, even if Petitioner were correct that the survey process in this case was somehow inadequate (which I do not find), Petitioner’s attempt to discredit both the surveyor and her findings must fail.

Page 31

V.   Conclusion

For the reasons stated in this decision, I sustain CMS’s determinations.  I conclude that Petitioner was not in substantial compliance with the Medicare participation requirements at 42 C.F.R. § 483.25(d)(1)-(2) (Tag F689).  A $10,000 per-instance CMP, as well as a DPNA from April 28 through May 16, 2018, are reasonable enforcement remedies for Petitioner’s noncompliance.


          /s/
        Leslie A. Weyn

                      Administrative Law Judge
      1. CMS also found that Petitioner was out of compliance with 42 C.F.R. § 483.20(g) (Tag F641 – Accuracy of Assessments).  Because CMS did not impose a remedy based upon Tag F641, this deficiency is not subject to my review.  42 C.F.R. §§ 488.408(g)(1); 498.3(b)(13). back to note 1
                      2. CMS and state survey agencies consider the scope and severity of deficiencies when selecting enforcement remedies.  See 42 C.F.R. § 488.408.  CMS summarizes the scope and severity levels in a matrix published in the State Operations Manual (SOM).  At the time of the survey at issue, the matrix was published at section 7400.5.1. of the SOM.  CMS Pub. 100-07, ch. 7, § 7400.5.1 (Rev. 63, eff. Sept. 10, 2010) available at https://www.cms.gov/Regulations-and-Guidance/Guidance/transmittals/downloads/R63SOMA.pdf (last visited January 28, 2022).  In the current version of the SOM, the matrix appears at section 7400.3.1.  Id. (Rev. 185, eff. Nov. 16, 2018), available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07pdf.pdf (last visited January 28, 2022).  As relevant here, a scope and severity level of “G” indicates an isolated deficiency that involves actual harm but does not pose immediate jeopardy to resident health and safety. back to note 2
                      3. Prior to the hearing, CMS withdrew its request to cross-examine Sylva Ortiz, a certified nurse aide (CNA) employed by Petitioner.  Docket Entry #31 in DAB E-File.  I note that there are two declarations of Ms. Ortiz in the record.  They are identical in content.  Petitioner filed one declaration dated December 27, 2018, with its motion to supplement on December 28, 2018, and then filed another declaration, which is undated and marked as P. Ex. 14, with its amended exhibit list filed on February 15, 2019. back to note 3
                      4. Effective November 28, 2016, CMS revised and reorganized many of the participation requirements codified in 42 C.F.R. pt. 483.  81 Fed. Reg. 68,688, 68,825-31 (Oct. 4, 2016). back to note 4
                      5. CMS increases the CMP amounts annually to account for inflation in compliance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. No. 114-74, § 701, 129 Stat. 584, 599 (2015).  See 81 Fed. Reg. 61,538 (Sept. 6, 2016).  Because CMS imposed the CMP in this case after February 3, 2017, but before October 11, 2018, the inflation-adjusted amounts for 2017 apply.  82 Fed. Reg. 9174, 9182 (February 3, 2017); see also 83 Fed. Reg. 51,369 (Oct. 11, 2018). back to note 5
                      6. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision. back to note 6
                      7. CMS Ex. 5 appears in the electronic file in two parts.  Part 1 includes pages 1-99; part 2 includes pages 100-196. back to note 7
                      8. Many of Resident 1’s medical records are duplicated in CMS Ex. 6.  I find it unnecessary to cite to the duplicates. back to note 8
                      9. Resident 1’s “Fall/Injury Potential” care plan refers to the “call bell” rather than to the “call light.”  CMS Ex. 5 (part 2) at 101.  I understand both terms to refer to a device residents use to alert staff that they require assistance.  In this decision I refer to the device as the “call light.” back to note 9
                      10. BIMS scores are categorized into 3 levels:  cognitively intact (13-15), moderately impaired (8-12), and severe impairment (0-7).  See Long-Term Care Facility Resident Assessment Instrument 3.0 User’s Manual, Ch. 3 (Overview to the Item-by-Item Guide to the MDS 3.0), § C0500 (Summary Score)), https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/Downloads/MDS-30-RAI-Manual-V113.pdf (last visited January 24, 2022) (the cited material appears at page 168 of the PDF file). back to note 10
                      11. During the survey, one of Petitioner’s nurses, who was tasked with updating residents’ MDS records, informed Surveyor Reyes that Resident 1’s MDS was incorrect, and should have indicated that R1 was a fall risk and had previous falls.  CMS Ex. 4 at 12.  Petitioner’s DON also told Surveyor Reyes that Resident 1 was admitted with a history of falls and a left hip fracture, and she did not know why the MDS contained inaccurate information.  Id. at 8; see also CMS Ex. 1 at 2-3; CMS Ex. 12 at ¶¶ 11, 12. back to note 11
                      12. Progress notes dated November 27, 2017, reflect that Resident 1 complained of mild pain at 4/10 and was given Tylenol.  CMS Ex. 6 (part 1) at 124.  CMS Ex. 6 appears in the electronic file in three parts.  Part 1 includes pages 1‐129; part 2 includes pages 130‐222; part 3 includes pages 223‐337. back to note 12
                      13. Resident 2 was the wife of Resident 1.  CMS Ex. 12 at ¶ 8. back to note 13
                      14. There is a handwritten date on the history and physical examination report, which, while largely illegible, appears to show that the physician examined Resident 2 in November 2017. back to note 14
                      15. See n.10, supra. back to note 15
                      16. In its pre-hearing brief, Petitioner states the student was an “RN student.”  P. Br. at 5‐6.  However, in its post-hearing brief, Petitioner states the student was a “student CNA.”  P. Posthrg. Br. at 4-5.  At the hearing, Surveyor Reyes testified that one of Petitioner’s nurses informed her that the student was a “CNA student.”  Tr. 66.  Whether the student was in training to become a CNA or an RN is not material to my decision.  I refer to the individual as a “nursing student.” back to note 16
                      17. The Statement of Deficiencies (Form CMS-2567) identifies the participation requirement as encompassing both subsections 483.25(d)(1) and (d)(2).  See CMS Ex. 1 at 3.  The factual underpinnings for the deficiency in the present case fall within the ambit of subsection 483.25(d)(2) as they deal with inadequate supervision and, to a certain extent, whether Petitioner could have provided additional assistance devices that might have prevented the residents’ accidents.  There are no allegations that the physical environment of Petitioner’s facility presented accident hazards for its residents.  Nevertheless, in the decision I refer to the participation requirement at issue as 42 C.F.R. § 483.25(d)(1)-(2). back to note 17
                      18. As discussed at n.4, supra, in 2016 CMS revised and reorganized many of the SNF participation requirements codified in 42 C.F.R. pt. 483.  81 Fed. Reg. at 68,828-31.  Prior to the revision, subsections 483.25(d)(1) and (2) were codified as subsections 483.25(h)(1) and (2).  The Meadowwood decision interpreted subsections 483.25(h)(1) and (2).  I find it appropriate to rely on the reasoning of Meadowwood and similar decisions because there was no substantive change to the language when subsections 483.25(h)(1) and (2) were recodified as subsections 483.25(d)(1) and (2). back to note 18
                      19. In her undated declaration, CNA Silva Ortiz states that she told the surveyor that Resident 1 “used his call light constantly when he needed assistance.”  P. Ex. 14.  She also states that “[o]n November 26, 2017, at all times, [his] call light was within his reach.  However, on November 26, 2017, he made no attempt to use [it] for assistance.”  Id.  Given that Resident 1’s noncompliance with call light use is well-documented in the record, I do not find credible CNA Ortiz’s statement that he “constantly” used the call light.  Nor do I find credible CNA Ortiz’s claim that Resident 1’s call light was within his reach at all times, but he made no attempt to use it.  By her own admission, when Resident 1 was up in his wheelchair, CNA Ortiz brought him to the nursing station and then provided care to other residents.  P. Ex. 14; see also CMS Ex. 4 at 14.  Thus, she could not have personal knowledge of whether the call light was within Resident 1’s reach “at all times” nor whether he made any attempts to use it. back to note 19
                      20. Petitioner simultaneously makes the contradictory argument that “the surveyor’s own notes corroborate [CNA] Ortiz’s account.”  P. Posthrg. Reply at 2. back to note 20
                      21. The Change in Condition report is internally inconsistent.  One staff member documented that Resident 2 slid from her wheelchair (not mentioning any assistance), while another staff member described the nursing student assisting the resident.  P. Ex. 12 at 2. back to note 21
                      22. Petitioner argues that the IDT’s investigative summary is not inconsistent with the report that the nursing student assisted Resident 2 to the floor.  P. Posthrg. Br. at 5.  Petitioner contends that I should read the IDT summary to mean that the nursing student was unable to reach the resident in time to prevent her from standing up, but was able to assist her as she fell.  Id.  I find this argument to be purely speculative.  Contrary to Petitioner’s position, I find it more likely than not that, if the IDT had concluded the nursing student assisted in breaking Resident 2’s fall, it would have included that information in the summary.  I therefore do not accept Petitioner’s interpretation. back to note 22
                      23. Under the Act and regulations, a “nurse aide” is any individual providing nursing or nursing-related services to residents in a skilled nursing facility, not including an individual who is a licensed health professional, a registered dietician, or a volunteer who provides such services without monetary compensation.  Act §§ 1819(b)(5)(F), 1919(b)(5)(F); 42 C.F.R. § 483.5 (definition of nurse aide).  Both the Act and the applicable regulation prohibit facilities from employing as a nurse aide any non-certified individual “other than [one] in a training and competency evaluation program approved by the State.”  Act §§ 1819(b)(5)(C), 1919(b)(5)(C); see also 42 C.F.R. § 483.35(d)(3)(i). back to note 23
                      24. As previously explained, with inflation adjustment, the CMP range at the time of the March 2018 survey was $2,097 to $20,965.  42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3 (Table) (2017); 82 Fed. Reg. at 9182. back to note 24
                      25. In her declaration, Surveyor Reyes stated that she observed six residents in wheelchairs at a table near the nursing station, and no staff member was present.  CMS Ex. 12 at ¶ 24. back to note 25
                      26. The F-Tags cited in CMS Ex. 9 pre-date CMS’s redesignation of the F-Tags and regulatory provisions.  See CMS’s F-Tag Crosswalk, https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationEnforcement/Downloads/F-Tag-Crosswalk.xlsx (last visited January 28, 2022).  Tag F323 has been redesignated as Tag F689, which is the tag at issue in this case.  Tag F314 has been redesignated as Tag F686; Tag F315 has been redesignated as Tag F690; and Tag F327 has been redesignated as Tag F692. back to note 26
                      27. “Substandard quality of care” is identified by the situation where surveyors identify one or more deficiencies related to participation requirements established by 42 C.F.R. §§ 483.10, 483.12, 483.24, 483.25, 483.40, 483.45, 483.70 or 483.80, which are found to constitute either immediate jeopardy, a pattern of or widespread actual harm that does not amount to immediate jeopardy, or a widespread potential for more than minimal harm that does not amount to immediate jeopardy and there is no actual harm. 42 C.F.R. § 488.301.  In this case, the deficiency cited under Tag F689 was at a scope and severity level “G” (isolated deficiency that involves actual harm but does not pose immediate jeopardy), which does not amount to substandard quality of care which would have triggered an extended or partial extended survey. back to note 27 Back to top
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