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# CNH, Inc., d/b/a Carbondale Nursing & Rehabilitation Center, DAB CR5730 (2020)

----

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

## CNH, Inc., d/b/a Carbondale Nursing & Rehabilitation Center,(CCN: 395260),Petitioner,

## v.

## Centers for Medicare & Medicaid Services.

### Docket No. C-19-1036Decision No. CR5730October 8, 2020

### DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a per-instance civil money penalty of $10,825 against Petitioner, CNH, Inc., d/b/a Carbondale Nursing & Rehabilitation Center, a skilled nursing facility.  Authority to impose this remedy results from Petitioner’s noncompliance with a regulation governing its participation in Medicare, 42 C.F.R. § 483.25(d)(1)-(2).1

### I.  Background

I received this case recently as a reassignment from the docket of another administrative law judge.  Upon reviewing the record, I determined that the parties had exchanged pre-hearing briefs and proposed exhibits.  Neither party filed a request to cross-examine witnesses.  Consequently, I decide this case based on the parties’ exchanges.

Page 2

CMS filed 25 exhibits that it identified as CMS Ex. 1-CMS Ex. 25.  Petitioner filed two exhibits that it identified as P. Ex. 1-P. Ex. 2.  I receive the parties’ exhibits into the record.

### II.  Issues, Findings of Fact and Conclusions of Law

**A. Issues**

The issues are whether Petitioner failed to comply substantially with a Medicare participation requirement and, if so, whether CMS’s remedy determination is reasonable.

**B. Findings of Fact and Conclusions of Law**

The regulation implicated in this case, 42 C.F.R. § 483.25(d)(1)-(2), mandates a skilled nursing facility to protect its residents from foreseeable accident hazards and to provide its residents with the assistance and supervision that they need to prevent them from having accidents.  This regulation has been applied in innumerable cases.  It does not impose a strict liability standard on a facility.  It requires a skilled nursing facility to identify all foreseeable accident hazards at its premises and to take all reasonable measures to protect its residents against those hazards.  *See Me. Veterans’ Home – Scarborough*, DAB No. 1975 (2005). 

It is not enough for a facility to have a policy that generally protects residents from sustaining accidents.  The facility must carefully assess each of its residents and determine what unique risks each resident confronts in order to protect that resident from sustaining foreseeable accidents.  The facility must also assess its premises in order to identify general risks to its resident population and it must put into place measures that protect the resident population from those risks.

In this case, the evidence establishes that Petitioner failed in two respects to discharge its regulatory obligations.  First, Petitioner put one of its residents, a severely demented and physically unstable individual, in harm’s way by leaving a bedside commode (toilet) in the resident’s room that the resident might use without supervision.  Second, Petitioner failed to assure that its entrance door was secured in a way that prevented residents from unsupervised egress from its premises.

As of the date of the survey of Petitioner’s facility, Resident 2 was 91 years old.  She had resided at the facility for more than nine months.  Her diagnoses included dementia, an abnormal gait, and mobility problems.  CMS Ex. 1 at 13.

In January 2019, Petitioner’s staff assessed the resident for cognitive and functional status.  CMS

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Ex. 7.  Staff found the resident to be severely cognitively impaired.  CMS Ex. 7 at 1.  She did not know the current day, month, or year.  She could not recall the names of any objects that the staff identified, even with cueing.  *Id.*

Staff found the resident to have severe mobility problems.  CMS Ex. 7 at 2.  The resident was unsteady and needed the assistance of a staff member to engage in activities that included:  moving from a seated to a standing position; walking; turning around and facing in the opposite direction while walking; and surface-to-surface transfer (such as a transfer from her bed or a chair to a wheelchair).  *Id.* at 3.  Most significantly, Resident 2 required physical assistance for moving on and off a toilet.  *Id.* at 2-3.

Staff equipped Resident 2’s room with a bed alarm and a floor alarm so that the staff would be alerted to attempts by the resident to transfer from her bed and/or to ambulate without assistance.

In early January 2019, Resident 2 suffered from back and knee pain that made it difficult for her to transfer – i.e., from her bed to a wheelchair.  Petitioner’s staff decided that supplying the resident with a bedside commode would be of benefit because it would reduce the distance that the resident would have to walk in order to relieve herself.  CMS Ex. 25 at ¶ 24.  Staff obtained a physician’s order for a bedside commode.  The order states:  “Resident may have a bedside commode for toileting @ bedside.”  CMS Ex. 15 at 57; CMS Ex. 24 at 1.  The staff amended Petitioner’s care plan on January 2, 2019.  The amended plan states that:  “Resident may have commode for toileting in room *away* from bedside.”  CMS Ex. 8 at 1 (emphasis added).

Petitioner’s staff placed a commode at the resident’s bedside.  There is nothing in the record to suggest that staff removed the commode when the resident was not using it.  Nor is there anything to suggest that staff assured that Resident 2 would be personally supervised and physically assisted every time she used the commode.  I infer from the record that staff allowed Resident 2 to use the commode while not supervised or assisted.  This conflicts with staff’s assessment that the resident could not use a toilet without staff assistance.

At 5:15 a.m. on February 10, 2019, a member of Petitioner’s staff heard the resident’s bed and floor alarm sounding and went to Resident 2’s room.  She saw the resident attempt to sit on the bedside commode.  Resident 2 fell and fractured her wrist, necessitating surgery to repair it.  CMS Exs. 4-6. 

The facts as I have presented them plainly establish failure by Petitioner to comply with regulatory requirements in caring for Resident 2.  Petitioner’s staff knew that the resident was demented and that she suffered from severely impaired memory and judgment.  Staff knew that the resident was physically unstable and that she required the assistance of a staff member to sit and rise from a toilet.  Yet, staff placed a commode by the resident’s

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bed and left it to be used without supervision and without providing direct assistance to the resident.

It is true that the staff obtained a physician’s order that provided for a commode to be placed at the resident’s bedside.  That does not excuse Petitioner’s staff from allowing the resident access to the commode without supervision and physical assistance.  Anyone who thought about the situation should have immediately realized that placing a commode by the resident’s bedside for unassisted use created an extreme hazard, given the resident’s advanced dementia and her physical instability.  Staff should have carefully assessed when, and under what conditions, Resident 2 would be allowed access to a bedside commode before placing the commode by the resident’s bed.  It did not.

Petitioner equipped the front door of its facility with a lock that could be disengaged electronically by someone working at Petitioner’s front desk, a workstation that has direct visual access to the door.  Once the lock was disengaged, there was a 20-second reset period during which individuals might enter or exit Petitioner’s facility without being barred entry by the locked door.  CMS Ex. 25 at ¶ 32.  If no employee was working at the desk, the lock could be disengaged by someone at Petitioner’s nurses’ station.  The nurses’ station did not have direct visual access to the door.  An employee at the nurses’ station would rely on a video monitor that provided an indistinct image of anyone attempting to enter or leave Petitioner’s facility.  *Id.*

On January 14, 2019, one of Petitioner’s residents left the facility without being observed by Petitioner’s staff.  Resident 3, an 84-year-old woman, suffering from Parkinson’s disease, decided to take a walk outside of the building.  She put on her coat and walked out of the front door as a visitor was entering.  CMS Ex. 19.  A staff member observed Resident 3 walking outside shortly after the resident exited the premises.  Staff apprehended the resident and escorted her back indoors.  

I infer that Resident 3 was able to leave the facility, unobserved, because no one on Petitioner’s staff was monitoring the front door at the time that the resident exited the premises.  According to the surveyor, Petitioner’s Director of Nursing speculated that the front desk was likely unmanned when the resident exited the premises.  CMS Ex. 25 at ¶ 32.  That meant that someone at the nurses’ station disengaged the front door lock, allowing the resident egress, probably as someone else was entering the facility.

The episode revealed a severe flaw in Petitioner’s security system.  Having an electronically locked front door protects Petitioner’s residents only insofar as someone is performing the surveillance necessary to determine who is authorized to enter and leave the facility.  Obviously, the system is of limited or no value if staff allows people to enter or leave without closely observing who is entering or exiting the facility.

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Resident 3 did not suffer from dementia.  However, she had a severe physical impairment (Parkinson’s disease) and exited Petitioner’s Pennsylvania facility on a day in January 2019.  That highlights the risks to residents who leave Petitioner’s facility while not supervised.  There is an evident risk of harm attendant to elderly and infirm individuals being exposed to the elements while not under supervision.  I stress that Petitioner’s noncompliance does not emanate from the particular circumstances of Resident 3’s egress.  Rather, it is a consequence of a failure to have a system in place that assured protection of any resident – including Resident 3 – who might have impairments and that would preclude unsupervised egress from the facility.

I have considered Petitioner’s arguments on the issue of noncompliance and I find them to be without merit. 

In addressing the care that its staff provided to Resident 2, Petitioner asserts that CMS unfairly and improperly holds Petitioner to a strict liability standard.  Petitioner’s pre-hearing brief at 5.  I disagree.  As I have explained, Petitioner’s noncompliance in providing care lies in its staff’s creation of a hazardous situation by leaving Resident 2 – a severely demented and physically unstable individual – with unsupervised access to a bedside commode.  Petitioner’s staff assessed the resident as not being capable of using a toilet without physical assistance.  By giving her access to the commode, unsupervised, the staff directly contravened its own assessment of the resident.

Petitioner asserts additionally that having the commode at the resident’s bedside was entirely consistent with the resident’s plan of care.  Petitioner’s pre-hearing brief at 4.  It supports this assertion by citing to language in the plan of care that Petitioner contends specifically allowed for a commode to be placed at the resident’s bedside.  *Id.*; *see* CMS Ex. 15 at 57, 79, 84. 

The resident’s plan of care – if it allowed unsupervised use of the commode – provides Petitioner with no defense.  It is unnecessary for me to decide whether language in the plan of care expressly authorized the staff to place a commode by the resident’s bedside because the plan of care was clearly inappropriate if it, in fact, authorized that action.  Staff assessed the resident as *not* being able to use a toilet without supervision and assistance.  Any plan of care that allowed – without a supervening assessment – the resident to use a bedside commode without supervision and assistance plainly contradicted the staff’s assessment of the resident’s limitations. 

Petitioner argues also that staff protected Resident 2 adequately by placing bed and floor mat alarms in the resident’s room and by taking other measures to protect the resident.  Petitioner’s pre-hearing brief at 5.  There was nothing inappropriate about these measures.  However, they failed to protect the resident from the hazard that staff created by placing a commode at the resident’s beside.  A member of Petitioner’s staff heard the

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alarms sounding on the night that the resident sustained her fall while attempting to use the commode but arrived at the resident’s room too late to assist her.

Petitioner does not dispute any of the facts concerning its door locking system or Resident 3’s departure from the facility.  Petitioner’s pre-hearing brief at 6.  Nor does Petitioner argue that a finding of noncompliance emanating from these facts is inappropriate.  Rather, it argues that the scope and severity of the noncompliance should be lower than that assessed by CMS.  *Id. *According to Petitioner, its noncompliance should not be assessed at a level of actual harm because Resident 3 “was fully capable of taking care of herself.”  *Id.*

This is an argument that I may not consider.  CMS’s scope and severity findings in this case are not reviewable because a successful challenge would not affect the range of the civil money penalty that CMS determined to impose nor result in the facility’s losing its nurse aide training program (if it has one).  42 C.F.R. § 498.3(b)(14), (d)(10).

That said, Resident 3 was *not*fully capable of taking care of herself.  She resided at Petitioner’s facility precisely because she was not capable of taking care of herself.  The essence of skilled nursing care under Medicare is that it be authorized for individuals who are too infirm to care for their own needs and to protect themselves from mishaps.  Resident 3 was, at the time of her egress, an elderly individual with Parkinson’s disease.   

Petitioner did not expressly challenge the reasonableness of CMS’s civil money penalty determination – a per-instance penalty of $10,825.  However, I have reviewed the penalty and I find it to be reasonable given the facts of this case.

There are regulatory factors that govern the issue of whether a civil money penalty amount is reasonable.  42 C.F.R. §§ 488.438(f)(1)-(4), 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  Among these factors are the seriousness of a facility’s noncompliance.

The evidence establishes Petitioner’s noncompliance to have been extremely serious.  Indeed, the harm suffered by Resident 2, considered in isolation, is sufficient to justify the penalty that CMS determined to impose.  Resident 2 suffered a severe injury as a consequence of that noncompliance.  She suffered an open fracture of her wrist as a result of her fall, causing the bone to be exposed.  The injury necessitated hospitalization and surgical repair of the fracture that utilized a plate and screws to hold the resident’s bones together.  Resident 2 had to wear a long-arm cast subsequent to the surgery.  CMS Ex. 13.

It is true that Resident 3 did not suffer injury as a result of her unobserved egress from Petitioner’s facility.  However, the potential for harm to this resident – and to other residents at the facility – resulting from Petitioner’s noncompliance, was high.  Resident

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3 suffered from Parkinson’s disease.  She walked out of the facility on a winter’s day, exposing her to the elements.  The flaw in Petitioner’s door locking system exposed other residents to the risks of exposure.  There is no doubt that other residents suffered from infirmities that would have placed them at a high risk of injury or harm had they left the facility unsupervised.

Steven T. KesselAdministrative Law Judge

                                              1. State agency surveyors found this noncompliance at a survey of Petitioner’s facility completed on February 26, 2019.  The surveyors found other instances of alleged noncompliance.  However, CMS did not impose remedies for these other noncompliance findings and, so, they are irrelevant to my decision. 
                            - back to note 1