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                              Huntington Healthcare Center, DAB CR5880 (2021)
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Huntington Healthcare Center, DAB CR5880 (2021)








  
  
    

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





Huntington Healthcare Center
(CCN: 55-5865),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-18-29Decision No. CR5880June 7, 2021

        
              
    

      DECISION

Huntington Healthcare Center (Petitioner or the facility) 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. §§ 483.20, 483.21, 483.24, and 483.25.  Petitioner also challenges the imposition of a per-day civil money penalty (CMP) of $1,515 per day from August 11 through 30, 2017, for a total CMP of $30,300.  For the reasons set forth below, I find that Petitioner failed to comply substantially with the Medicare participation requirements found at 42 C.F.R. §§ 483.20, 483.21, 483.24, and 483.25 (Tags F279, F309, and F323).  I also conclude that the per‐day CMP imposed is reasonable.

I.  Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in Los Angeles, California.  CMS Exhibit (Ex.) 1 at 1.  The California Department of Public Health (state agency) completed a complaint survey of Petitioner's facility on August 11, 2017, and found that the facility was not in substantial compliance with Medicare participation requirements.  *Id.*  CMS concurred with the result of the state agency survey, determining that Petitioner failed to comply with the following participation requirements:

**Page 2**

42 C.F.R. §§ 483.20(d), 483.21(b)(1) (Tag F279 – Develop Comprehensive Care Plans) at scope and severity level "D"1
;
	42 C.F.R. §§ 483.24, 483.25(k), (1) (Tag F309 – Provide Care/Services for Highest Well Being) at scope and severity level "G"; and
	42 C.F.R. § 483.25(d)(1), (2) (Tag F323 – Free of Accident Hazards/Supervision/Devices) at scope and severity level "G."CMS Ex. 1 at 1, 8, 15; *see also* CMS Ex. 2 at 1.  By letter dated August 16, 2017, CMS informed Petitioner that it was imposing a per-day CMP of $1,515 effective August 11, 2017, and a denial of payment for new admissions (DPNA) effective August 31, 2017.  CMS Ex. 2 at 1-2.  CMS informed Petitioner that these remedies would continue in effect until Petitioner resumed substantial compliance or CMS terminated its provider agreement, which CMS warned would happen no later than February 11, 2018.  *Id.* at 2.  Following an August 31, 2017 revisit survey, CMS determined that Petitioner had resumed substantial compliance effective as of the date of the revisit survey.  CMS Ex. 3 at 2.  In an October 16, 2017 letter, CMS informed Petitioner that it would not terminate the facility's provider agreement, the DPNA did not go into effect, and the CMP ceased accruing after August 30, 2017.  *Id.* at 1-2.

Petitioner timely requested a hearing, and the case was assigned to me.  In an order issued October 26, 2017 (Prehearing Order), I directed each party to file a prehearing exchange and permitted either party to file a motion for summary disposition.  Prehearing Order, ¶¶ 4, 5.  CMS filed a prehearing exchange, consisting of a combined motion for summary judgment and prehearing brief (CMS Br.) and 14 proposed exhibits, including the written declaration of one proposed witness (CMS Exs. 1-14).  Petitioner filed a prehearing

**Page 3**

exchange, consisting of a combined response in opposition to the motion for summary judgment and prehearing brief (P. Br.) and 10 proposed exhibits, including the written declaration of one proposed witness (P. Exs. 1-10).

I issued a ruling on March 26, 2019, denying CMS's motion for summary judgment.  On April 8, 2019, I convened a telephone pre-hearing conference.  During the conference, I admitted CMS Exs. 1-11, 13-14 and P. Exs. 1-8, 10 into the record.  I deferred ruling on the admissibility of CMS Ex. 12 and P. Ex. 9 until the hearing, when each party presented its witness to authenticate her written direct testimony and testify on cross-examination.  I also set this matter for a hearing on May 14, 2019.

On May 14, 2019, I held a hearing via video-teleconference (VTC) and a transcript (Tr.) was made of the proceeding.  I presided over the hearing from my location at the Departmental Appeals Board in Washington, DC.  Co-counsel for Petitioner, counsel for CMS, and the parties' witnesses participated in the hearing via VTC from the Los Angeles, California offices of Petitioner's counsel.  Petitioner's lead counsel appeared for the hearing via VTC from the St. Louis office of Petitioner's counsel.  At the hearing, I admitted CMS Ex. 12 and P. Ex. 9 into the record after the witnesses authenticated their respective written direct testimony.  Tr. at 17, 85-86.

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

II.  Issues

The issues in this case are:

Whether the facility failed to comply substantially with Medicare participation requirements; and
	If the facility did not comply substantially with Medicare participation requirements, whether the remedy imposed 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).

**Page 4**

IV.  Discussion

**A. Statutory and Regulatory Framework**

The Act sets requirements for SNF participation in the Medicare program.  The Act authorizes the Secretary of the U.S. Department 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.

A facility must maintain substantial compliance with program requirements in order to participate in Medicare.  To be in substantial compliance, a facility's deficiencies may pose no greater risk to resident health and safety than "the potential for causing minimal harm."  42 C.F.R. § 488.301.  A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act (42 U.S.C. § 1395i-3(b), (c), and (d)) or the Secretary's regulations at 42 C.F.R. pt. 483, subpt. B.  *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 participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20.  The Act and regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.  The Act also authorizes the Secretary to impose enforcement remedies against SNFs that are not in substantial compliance with the program participation requirements.  Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)).  Among other enforcement remedies, CMS may impose a CMP for each day a facility is not in substantial compliance with the program participation requirements.  42 C.F.R. § 488.430(a).  At the time of the August 2017 survey at issue in this case, CMS was authorized to impose a CMP of $105 to $6,289 per day for non-immediate jeopardy deficiencies.  42 C.F.R. § 488.438(a)(1)(ii); *see also* 82 Fed. Reg. 9174, 9188 (February 3, 2017).

**B. Burden of Proof**

CMS must make a prima facie showing that Petitioner failed to comply substantially with federal participation requirements.  If this occurs, Petitioner 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

**Page 5**

181 (6th Cir. 2005); *Emerald Oaks*, DAB No. 1800 (2001); *Cross Creek Health Care Ctr.*, DAB No. 1665 (1998).

**C. Findings of Fact, Conclusions of Law, and Analysis**

***1. Resident 1, who was at risk for falls and required the assistance of two persons for transfers, fell and was injured on April 15, 2017.***

Resident 1, a 96-year-old woman at the time of the survey at issue, was originally admitted to the facility on February 15, 2011.  P. Ex. 5.  Resident 1 was readmitted to the facility on August 4, 2012, with diagnoses including history of subdural hematoma, dementia, diabetes, hypertension, osteoporosis, muscle disorder, and muscle contractures of the left elbow and hand.  *See, e.g.*, CMS Ex. 7 at 1, 5; CMS Ex. 9 at 49; P. Ex. 5.  Resident 1 was totally dependent on staff for all transfers, dressing, bathing, and personal hygiene, and required a two-person assist with all transfers between her bed and her wheelchair, due to her poor balance while sitting.  *See, e.g.*, CMS Ex. 6 at 11; CMS Ex. 8 at 27; CMS Ex. 9 at 58.  Resident 1 experienced falls from her wheelchair on April 12, 2013, and April 5, 2015.  CMS Ex. 9 at 17-18, 26‐27.  Because she was assessed as a fall risk, Resident 1 was part of the facility's "falling star" program, which aimed to prevent falls, reduce the incidence of falls, and reduce fall-related injuries.2
  CMS Ex. 8 at 25; CMS Ex. 9 at 15; P. Ex. 4.  Following her 2015 fall and because Resident 1's muscle disorder included poor trunk control, her physician ordered a wedge cushion to be used when Resident 1 was sitting in a reclining wheelchair "for safety and positioning."  CMS Ex. 7 at 15-16, 18.

Resident 1's January 17, 2017 Minimum Data Set (MDS) assessment noted that, during the look‐back period she required "**Two+** persons physical assist" with bed mobility, transfer between surfaces, dressing, toileting, personal hygiene, and bathing.  CMS Ex. 6 at 11 (emphasis in the original); *see also* CMS Ex. 9 at 58 (physical therapy progress note documenting Resident 1 required two-person assist to transfer between bed and wheelchair).  Resident 1's January 25, 2017 care plan noted that she required total assistance with bed mobility, transfer, ambulation, locomotion, dressing, personal hygiene, and bathing.  CMS Ex. 9 at 13.  However, the care plan did not specify that she required, at a minimum, two-person assistance.  *Id.*  The care plan additionally included objectives of "reduced occurrence of injury from fall daily X 3 MOS" and "no fall incidents or fracture noted daily in the next 3 mos."  *Id.* at 8, 10.  However, the care plan did not document as an intervention the use of a wedge cushion while Resident 1 was seated in her wheelchair, as ordered by her physician.  *Id.* at 8-13.

**Page 6**

On April 15, 2017, at approximately 9:00 a.m., Certified Nursing Assistant (CNA) Marietta Francisco assisted Resident 1 to transfer from her bed to her wheelchair.3
  CMS Ex. 5 at 1-2; P. Ex. 9 at ¶ 9.  CNA Francisco then turned away from Resident 1 to retrieve a comb.  CMS Ex. 5 at 1-2; P. Ex. 9 at ¶ 13.  While CNA Francisco was retrieving the comb, Resident 1 fell from her wheelchair and landed face down on the floor.  CMS Ex. 5 at 1-2; P. Ex. 9 at ¶ 14.  Resident 1's physician ordered Resident 1 transferred to the emergency room for treatment of a head laceration and for further evaluation.  CMS Ex. 7 at 12.  Resident 1 was admitted to the hospital for head trauma and a subdural hemorrhage.  *Id.*; *see also* CMS Ex. 10 at 15; CMS Ex. 11 at 26.  Resident 1 was discharged from the hospital to a long-term care hospital for further treatment.  CMS Ex. 11 at 26.

***2. Petitioner did not comply substantially with 42 C.F.R. §§ 483.20(d), 483.21(b)(1) (Tag F279) because it did not develop a comprehensive care plan for Resident 1 that incorporated her assessed needs and physician orders******.***

In relevant part, 42 C.F.R. §§ 483.20(d) and 483.21(b)(1) require a skilled nursing facility to develop and implement comprehensive, person-centered care plans which describe the services that will be used to attain or maintain the highest practicable physical, mental, and psychosocial well-being for its residents as required under 42 C.F.R. §§ 483.24 and 483.25.  The requirement to assess residents and develop a comprehensive care plan reflects the "'importance of unified and coordinated resident assessments to the provision of high quality care.'"  *Sheridan Health Care Center*, DAB No. 2178 at 36 (2008) (quoting 52 Fed. Reg. 38,582, 38,585 (1987)).  As the *Sheridan* decision points out, "a comprehensive care plan functions as a roadmap for all of the resident's caregivers, including those unfamiliar with a resident or without professional training, to provide consistent care and services tailored to 'attain or maintain the [resident's] highest

**Page 7**

practicable physical, mental and psychosocial well-being.'" *Id.* at 37 (quoting 42 C.F.R. § 483.20(k)).4

*Sheridan* additionally holds that a facility's adoption of a resident care policy supports an inference that the policy is "necessary to attain or maintain resident well-being."  *Id.* at 32.  Consistent with the analysis in *Sheridan*, another appellate panel reasoned that a facility's "failure to comply with its own policies can support a finding that the facility did not achieve compliance with the regulatory standard."  *Bivins Memorial Nursing Home*, DAB No. 2771 at 9 (2017); *see also Life Care Ctr. of Bardstown*, DAB No. 2233 at 22 (2009) (finding that a facility's failure to comply with its own policies can constitute a deficiency under section 483.25).

In the present case, Petitioner adopted a "Policy and Procedure on Care Plan[s]" (Care Plan Policy).  P. Ex. 1.  Petitioner's Care Plan Policy specifically required residents' care plans to "reflect intermediate steps for each outcome objective if identification of those steps will enhance resident's ability to meet his/her objectives."  *Id.* at 1.  Under the policy, care plans were required to "address the needs, strengths, and preferences of the resident as identified in the comprehensive assessment," and to include "[s]ervices that are to be furnished for [the] resident to attain or maintain the resident's highest practicable physical, mental and psychosocial well being."  *Id.*

Petitioner also adopted a policy titled, "Policy and Procedure for Fall Prevention Falling Star Program" (Fall Prevention Policy).  *See* P. Ex. 4.  The goal of the Fall Prevention Policy was "to prevent falls, reduce both the incidence of falls, and the injuries that may accompany falls."  *Id.* at 1.  Among other things, the Fall Prevention Policy required Petitioner's interdisciplinary team (IDT) or fall prevention team to review assessments and care plans for residents identified as at risk for falling and to document fall prevention approaches and interventions.  *Id.*

**Page 8**

Petitioner's staff identified Resident 1 as at risk for falls based, in part, on her history of falling from her wheelchair on April 5, 2015.  *See, e.g.*, CMS Ex. 8 at 24-27, CMS Ex. 9 at 8, 15, 26-27.  Resident 1's care plan specifically noted Resident 1's fall on April 5, 2015, the diagnoses that increased her fall risk, her poor trunk control, her need for extensive to total assistance for activities of daily living (ADLs), and her tendency to lean forward when seated in her wheelchair.  CMS Ex. 9 at 8.  Resident 1's care plan included outcome objectives such as no fall incidents or fractures.  *Id*. at 8, 10.  The care plan also included approaches to achieve these objectives, including some that appear to have been generic.5
  *Id.* at 8.  One approach was including Resident 1 in the facility's "falling star" program.  *Id.*However, contrary to the provisions of Petitioner's Fall Prevention Policy, Resident 1's care plan did not document *all* the services staff were to use to reduce the incidence of Resident 1's falls as well as the injuries she might suffer.  In particular, the care plan did not document that Resident 1 required a wedge cushion for her reclining wheelchair.  *Id.*  Nor did the care plan document that Resident 1's wheelchair should be reclined, or the degree to which it should be reclined.  Finally, the care plan did not specify that Resident 1 required two-person assistance with bed mobility, transferring between surfaces, dressing, toileting, personal hygiene, and bathing.  *Id.*

Petitioner argues that these omissions do not establish that its care plan for Resident 1 was deficient.  It is Petitioner's position that specific assistance devices and interventions need not be identified in residents' care plans, so long as the record as a whole is sufficiently documented for staff to know what items and services a resident requires.  P. Posthrg. Br. at 5-8.  Therefore, Petitioner argues, it is sufficient that Resident 1's care plan included interventions such as "[a]ssist with ADL's as needed" and "[k]eep assistive device in good working order."  *Id.* at 3.6
  Further, Petitioner asserts that that the wedge cushion in Resident 1's wheelchair was "a matter of course in place" and "staff were aware of Resident 1's need to have the wheelchair in place."  *Id.*

**Page 9**

However, this view is inconsistent with Petitioner's own Care Plan Policy and the regulations.  As the *Sheridan* decision makes clear, the regulations envision that a resident's care plan will provide a "roadmap" for staff members unfamiliar with the resident to understand the entirety of that resident's care needs.  *See* DAB No. 2178 at 37.  Adopting Petitioner's view would require staff members to review a resident's entire medical record or risk overlooking a needed item or service.  It is apparent that such an approach would be unworkable in the context of providing daily care to multiple residents.  It is not sufficient for a care plan to state generally that staff should assist with ADLs "as needed" or to assume staff are aware of a resident's need for an assistive device or adjustment of the wheelchair that is never mentioned in the care plan.  Thus, Resident 1's care plan should have documented that she required a two-person assist for transfers, that the wedge cushion was required every time Resident 1 used her wheelchair, and how the wheelchair should be reclined to keep her safe.  *See* CMS Ex. 4 at 29 (Petitioner's Director of Nursing (DON)7
 told Health Facilities Evaluator Nurse Karen Lee (Surveyor Lee) on August 2, 2017 that "the intervention for [the] wedge cushion should be indicated in the care[]plan so staff would know what to do for the resident.").8

Petitioner additionally argues that Resident 1's MDS should not be read as establishing that the resident required the assistance of two persons "for all activities."  P. Posthrg. Br. at 9.  Petitioner contends that the MDS assessment is merely a snapshot of a resident's needs during the look-back period.  *Id.* at 9-10.  I do not disagree that the MDS assessment provides only a snapshot view of a resident's needs and capabilities.  However, Petitioner disregards the fact that Resident 1's need for the assistance of two or more persons for transfers is documented elsewhere in her records.  For example, a physical therapy note dated April 9, 2015 (i.e. following Resident 1's April 5, 2015 fall) documented that Resident 1 "req. 2 person [Assist] bed [↔] w/c."  CMS Ex. 9 at 58.  I interpret this notation to mean the physical therapist concluded that Resident 1 required the assistance of two persons when transferring between her bed and her wheelchair.  Thus, even if the MDS assessment of January 2017 is simply a snapshot of Resident 1's condition, it supports the inference that her need for two-person assistance for transfers remained unchanged.

**Page 10**

Moreover, several of Petitioner's staff members, including the DON, confirmed during the survey that Resident 1 required the assistance of two persons for transfers.  *See* CMS Ex. 4 at 5, 7, 8, 10, 11, 26.  For example, Ryan Yu, RN, Petitioner's MDS coordinator, told Surveyor Lee that Resident 1 was totally dependent on two staff for transfers, among other functions, "because someone needs to . . . support [her] body as the other staff performs [the] task."9
  *Id.* at 26; *see also* P. Posthrg. Br. at 11.  Significantly, Petitioner does not dispute that Resident 1 required the assistance of two persons for transfers.  P. Br. at 18, 19 (acknowledging that Resident 1 required a two-person assist for transfers, but arguing that she required only a one-person assist for other care).  Yet, notwithstanding that Petitioner's Care Plan Policy required "[s]ervices that are to be furnished for resident to attain or maintain the resident's highest practicable physical, mental and psychosocial well being are to be included in the plan of care" (P. Ex. 1 at 1), Resident 1's care plan did not specify that she required a two-person assist for all transfers.

Based on the facts described above, I conclude that the facility failed to develop a comprehensive care plan for Resident 1 that included all items and services she required to attain or maintain the her highest practicable physical, mental and psychosocial well being, contrary to both its own policy and the regulations.  Petitioner's noncompliance resulted in actual harm to Resident 1.  Accordingly, Petitioner was out of substantial compliance with 42 C.F.R. §§ 483.20(d), 483.21(b)(1).  Moreover, had Petitioner developed a comprehensive care plan for Resident 1 that included the supervision requirements and necessary assistance devices required by 42 C.F.R.§§ 483.20(d) and 483.21(b)(1), staff would have known that Resident 1 required the assistance of at least two persons to transfer and that her wheelchair must be reclined and equipped with a wedge cushion each time she used it.  As I explain in the following section of this decision, had these interventions been implemented, it is more likely than not that Resident 1's April 15, 2017 fall could have been prevented.

**Page 11**

***3. Petitioner did not comply substantially with 42 C.F.R. § 483.25(d) (Tag F323) because it failed to ensure that Resident 1 received adequate supervision and necessary assistance devices to prevent a foreseeable accident.***

Section 483.25 of 42 C.F.R., which governs quality of care, 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 related to accident hazards and accidents, as follows:

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.

The regulations require that a facility address foreseeable risks of harm from accidents "by identifying and removing hazards, where possible, or where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible."  *Meadowwood Nursing Ctr.*, DAB No. 2541 at 2 (2013) (citing *Me. Veterans' Home – Scarborough*, DAB No. 1975 at 10 (2005)).10
  The accident prevention provisions "come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm."  *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).

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 . . . 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) (a facility must take "all reasonable precautions against

**Page 12**

residents' accidents"), *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), citing *Century Care of 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).

In the case of Resident 1, it was plainly foreseeable that she might experience a fall.  Indeed, she had previously fallen from her wheelchair on at least two occasions prior to April 15, 2017.  CMS Ex. 9 at 17-18, 26-27.  As a result, a physician and a physical therapist had opined that Resident 1 required an assistive device (wedge cushion for her reclining wheelchair) and additional supervision (two-person assist with transfers) to keep her safe.  *See* CMS Ex. 7 at 16, 18; CMS Ex. 9 at 58.  Yet, as I describe below, I find it is more likely than not that Petitioner failed to provide the required supervision and assistive devices on April 15, 2017.

***a. Petitioner failed to provide adequate supervision to prevent Resident 1's fall.***

On April 15, 2017, the date of the fall at issue in the present case, Petitioner's staff compiled an Incident Report describing what had occurred.  CMS Ex. 15 at 1-7.  The Incident Report included the following summary:

[CNA] Francisco transferred [resident] from bed to [wheelchair].  [T]urned to bedside table to get comb from drawer and heard a noise.  [T]urned around and Resident was on floor facing down bleeding.

CMS Ex 15 at 5.  The Incident Report described Resident 1's injury as a 8 cm x 8.2 cm laceration near the resident's right eye.  *Id.*

Also as part of Petitioner's investigation of the fall, CNA Francisco wrote a description of the events, dated "4/15/17."  *Id.* at 6.  CNA Francisco's statement reads, in part:

At 9:35 AM ↑ resident from bed, I transfered [sic] her to the wheelchair[.]  I asked her if [she] is comfortable resident is nonverbal.  I made sure she is well sitted [sic] not leaning on any side uncomfortably.  I turned around to get the comb from her drawer not even 5 seconds, I heard a drop and quickly I turned back and saw resident on the floor facing down bleeding.

*Id.*  Significantly, nowhere in CNA Francisco's statement or elsewhere in Petitioner's Incident Report is there any allegation that a second staff member assisted CNA Francisco in transferring Resident 1 from her bed to her wheelchair.  *Id.* at 1-7.

**Page 13**

CNA Francisco gave a similar account to Petitioner's IDT on April 17, 2017.  CMS Ex. 5.  The IDT met on that date to determine "what really happen[ed]" to Resident 1 causing her to fall on April 15, 2017.  *Id.* at 1.  CNA Francisco reported that Resident 1 had been transferred "from Wheel chair [sic] to Bed" and was sitting comfortably in the wheelchair.11
  *Id.* CNA Francisco reported that she turned around to retrieve a comb in order to groom Resident 1's hair, but when she turned back around, Resident 1 was face down on the floor.  *Id.*  CNA Francisco reported that Resident 1 was "hyper active [sic] when she [was] doing care and when she [tried to] reach . . . [the] comb from the drawer [the] patient ben[t] forward, and los[t] balance."  *Id.*  CNA Francisco did not state that another staff member was present.  *Id.*

Once again, during the course of the state agency survey of Petitioner's facility, CNA Francisco told Surveyor Lee that, on the date of the fall, she transferred Resident 1 from her bed to her wheelchair without the assistance of another staff member.  CMS Ex. 4 at 13.  Surveyor Lee's notes indicate that she interviewed CNA Francisco by telephone on June 27, 2017.12
  *Id.*

However, in a written statement provided to Surveyor Lee on August 2, 2017, CNA Francisco for the first time asserted that another CNA had assisted with transferring Resident 1 to her wheelchair on April 15, 2017.  CMS Ex. 4 at 2.  In another statement dated August 22, 2017, CNA Francisco wrote that "there was another CNA during the transfer but I can't remember the CNA."  P. Ex. 10 at 2.  Finally, CNA Francisco provided written direct testimony stating that "[a] second CNA was present, assisting by standing behind the wheelchair and holding it in place" and "I do not remember the identity of the second CNA who assisted in the transfer."  P. Ex. 9 at ¶¶ 9, 10.

In addition to receiving CNA Francisco's written statement on August 2, 2017, Surveyor Lee also requested that CNA Francisco demonstrate what occurred during the transfer of Resident 1 on April 15, 2017.  CMS Ex. 4 at 23.  Petitioner's DON and a representative of Petitioner's corporate parent observed the demonstration along with Surveyor Lee.  *Id.*  During the demonstration, CNA Francisco explained that an unidentified CNA (CNA X) held the wheelchair and

**Page 14**

locked it and then left the room.  *Id.* at 24.  According to Surveyor Lee's notes, CNA Francisco "stated she performed transfer of Resident [1] by herself."  *Id.*

Petitioner relies on CNA Francisco's August 2017 statements and her written direct testimony as proof that its staff provided the required two-person assist.  P. Posthrg. Br. at 13‐16.  But, ultimately, Petitioner contends that whether or not it provided adequate assistance to Resident 1 during the transfer is immaterial, because the transfer was completed at the time Resident 1 fell.  *Id.* at 13.  According to Petitioner, CNA Francisco was only assisting Resident 1 with combing her hair when the fall occurred, which did not require a second person to supervise.  *Id.*

Petitioner's arguments do not establish that its staff provided adequate supervision to Resident 1 on April 15, 2017.  First, I do not agree that CNA Francisco's written direct testimony establishes that Petitioner's staff transferred Resident 1 appropriately.  To the contrary, I find it more likely than not that CNA Francisco transferred Resident 1 from her bed to her wheelchair without the assistance of another staff member.  CNA Francisco admitted on more than one occasion that she had done so.  CMS Ex. 4 at 13, 24, 25; CMS Ex. 15 at 6, 7.  In addition, CNA Francisco's written testimony states only that an unidentified CNA stood behind the wheelchair and held it in place.  P. Ex. 9 at ¶ 9.  CNA Francisco nowhere claims that the unidentified CNA provided physical assistance in performing the transfer.  *See id.* ("I sat the resident on the bed and then with the assistance of a gait belt, transferred Resident 1 to her wheelchair.").  This description is also consistent with CNA Francisco's statement during the reenactment of Resident 1's fall.  At that time, CNA Francisco stated that the unidentified CNA left the room *before* CNA Francisco transferred the resident.  CMS Ex. 4 at 24.  As noted previously, Petitioner concedes that Resident 1 required the assistance of two persons for transfers.  *See* P. Br. at 18, 19.

Second, Petitioner's argument that Resident 1 did not require the assistance of two persons for grooming implicitly acknowledges that a second staff member was not present at the time CNA Francisco turned to retrieve the comb and Resident 1 fell.  Further, I disagree with Petitioner's contention that the assistance of a second staff member was not required after the transfer was complete.  Resident 1's MDS and the statement of Nurse Yu indicate that the resident in fact required the assistance of two persons for personal hygiene, which includes combing hair.  CMS Ex. 4 at 26; CMS Ex. 6 at 11.

Petitioner argues that, by April 2017, Resident 1's condition had improved to the point that she required only a single staff person to provide ADL assistance.  P. Posthrg. Br. at 11.  Petitioner asserts that its ADL Tracking Form documents that staff provided one-person assistance with personal hygiene during April.  *Id.*; *see also* P. Ex. 8 at 1.  However, the fact that a single member of Petitioner's staff may have provided ADL assistance does not prove that a two-person assist was unnecessary for Resident 1.  For example, the ADL Tracking Form also documents that, throughout April, Petitioner's staff transferred Resident 1 with the assistance of one staff, despite Petitioner's admission that she required a two-person

**Page 15**

assist for transfers.  P. Ex. 8 at 1; *see also* P. Br. at 18, 19.  Thus, as Surveyor Lee testified, the ADL Tracking Form documents the level of care that was provided, not necessarily what was required.  Tr. at 54-56.  I find that the greater weight of the evidence supports the conclusion that Resident 1 required the assistance of two persons for both ADLs and transfers.

In summary, my review of the evidence persuades me that CNA Francisco transferred Resident 1 without assistance and was the only member of Petitioner's staff present when Resident 1 fell.  The resident, whose care plan documented her poor trunk control and tendency to lean forward when seated in her wheelchair, fell from the wheelchair while CNA Francisco's attention was elsewhere.  P. Ex. 9 at ¶¶ 13, 14.  I agree with Surveyor Lee's observation that, had another staff member been present to assist with Resident 1's transfer and ADLs, that person would have been available to ensure the resident's safety while CNA Francisco retrieved the resident's comb.  *See* Tr. at 41-42; *see also* CMS Ex. 4 at 14 (Oliver Chu, RN, one of Petitioner's nursing supervisors, stated to Surveyor Lee that "if CNA had called for another staff [member] to assist . . . then the additional staff could've been monitoring the resident to prevent the resident's fall from wheelchair while CNA [Francisco] was getting a comb for the resident.").  I therefore find, by a preponderance of the evidence, that Petitioner did not provide adequate supervision to prevent Resident 1's fall.

***b. Petitioner failed to provide all necessary assistance devices to prevent Resident 1's fall.***

Section 483.25(d) of the regulations requires facilities to provide both the supervision and assistive devices necessary to prevent accidents.  I have just explained why I conclude that Petitioner failed to provide adequate supervision to Resident 1.  I next consider whether Petitioner provided the assistive devices that Resident 1 required.  For the reasons explained below, I find that Petitioner did not do so.

As noted previously, Resident 1's physician ordered a wedge cushion for the resident's reclining wheelchair following her fall on April 5, 2015.  CMS Ex. 7 at 16, 18.  Petitioner would have me presume that the wedge cushion was on Resident 1's wheelchair as "a matter of course" and "staff were aware of Resident 1's need to have the wheelchair [sic] in place."  P. Posthrg. Br. at 3.  Petitioner asserts that "based on the placement of the wedge cushion, it was highly unlikely that Resident 1 would ever be seated without it as the wheelchair was designed to have the wedge cushion in place."  *Id.*  However, I find that the evidence is insufficient to support such a presumption.

First of all, as I have described in section IV.C.2 of this decision, Petitioner did not include in Resident 1's care plan the requirement that the wedge cushion be used whenever Resident 1 was up in her wheelchair.  Given that use of the wedge cushion was

**Page 16**

not in the resident's care plan, the claim that staff were aware that it should be in place rings hollow.

Second, none of CNA Francisco's statements as part of the facility's fall investigation nor her initial telephone interview with Surveyor Lee mentions the presence of a wedge cushion.  *See* CMS Ex. 5; CMS Ex. 15 at 6; *see also* CMS Ex. 4 at 13.  Similarly, the written statement CNA Francisco provided to Surveyor Lee, dated August 2, 2017, did not mention the wedge cushion.  CMS Ex. 4 at 2-3.

Then, in a written statement dated August 22, 2017, CNA Francisco for the first time described the presence of a wedge cushion.  P. Ex. 10.  Among other things, CNA Francisco wrote:  "It is unlikely to use the wheelchair without the cushion since the wheelchair will be concaved [sic] shape. [D]uring the return demonstration there was wheelchair cushion on the wheelchair."13
  *Id.* at 1.  CNA Francisco concluded:  "I am attesting that . . . [the] wheelchair was tilted with wedge cushion was [sic]
available."  *Id.* at 2.  CNA Francisco also explained that she was nervous and intimidated during the demonstration.  *Id.* at 1.  I infer that this was meant to explain why she did not mention the wedge cushion during the demonstration.  Finally, CNA Francisco's written direct testimony provides yet another version of events, stating that, after Resident 1 had been transferred and was already seated in the wheelchair, CNA Francisco reclined the wheelchair and then placed a wedge cushion under Resident 1, "as her care plan required."14
  P. Ex. 9 at ¶¶ 11, 12.

I do not find credible CNA Francisco's claim that she used the wedge cushion to position Resident 1 on April 15, 2017.  I find that her statements lack credibility because they present inconsistent versions of what she purportedly did when positioning Resident 1 in her wheelchair.  In particular, the only statements in which CNA Francisco affirmatively mentioned the wedge cushion contradict one another.  In her August 22, 2017 statement, CNA Francisco implied that the wedge cushion was already in place when she seated Resident 1 in the wheelchair.  *See* P. Ex. 10.  However, in her written direct testimony, she asserted that she seated the resident in the wheelchair first, and then placed the wedge

**Page 17**

cushion under the resident.15
  P. Ex. 9 at ¶12.  Moreover, in her earlier statements both to Petitioner's internal investigation and to the surveyor, CNA Francisco did not mention the wedge cushion at all, even though she knew the importance of including all significant details in her statement.  *See* Tr. at 92.  For these reasons, I do not accord weight to the later inconsistent statements.

Further, and for similar reasons, I find it unlikely that CNA Francisco reclined Resident 1's wheelchair before stepping away to retrieve the resident's comb.  As is true of her statements regarding the wedge cushion, CNA Francisco's initial statements did not mention reclining Resident 1's wheelchair.  Even as of the first demonstration on August 2, 2017, CNA Francisco did not state that she had reclined the wheelchair.  CMS Ex. 4 at 24; *see also id.* at 29 (DON confirmed that CNA Francisco did not mention or demonstrate reclining the wheelchair or using the wedge cushion).  Only after prompting by the DON did CNA Francisco say she thought she had demonstrated that she reclined the wheelchair "a little bit" and then added "she should have reclined the [wheelchair] more to prevent the resident's fall."16
  *Id.* at 25.  Although CNA Francisco's written statements of August 2, and August 22, 2017, and her written direct testimony assert that the wheelchair was reclined, I accord less weight to these statements.  *See* P. Exs. 9, 10; *see also* CMS Ex. 4 at 2.  I do so because I conclude that the questions asked by Petitioner's DON following the demonstration suggested the desired response.  *See* CMS Ex. 4 at 25 (DON asked "What is the reason the resident has a reclining wheelchair?" and suggested "Maybe you should have reclined [the wheelchair] to prevent the fall.").17

In addition, the fact that Resident 1 fell forward from her wheelchair, landing face down on the floor, is itself evidence from which I infer that the wedge cushion was not in place and the wheelchair was not reclined.  Surveyor Lee documented that, during her return visit to the facility on August 2, 2017, Petitioner's DON sat in a wheelchair that was reclined and equipped with a wedge cushion and observed that it would be difficult to lean forward and fall with the wheelchair so arranged.  *Id.* at 25, 30.  The DON further

**Page 18**

stated that, had Resident 1's wheelchair been reclined (or reclined enough) and had the wedge cushion been in place, the fall could have been prevented.  *Id.* at 29.  For all these reasons, I find it is more likely than not that the wedge cushion was not in place and the wheelchair was not reclined when Resident 1 fell on April 15, 2017.

I have found by a preponderance of the evidence that CNA Francisco transferred Resident 1 to her wheelchair without assistance, did not insure that the wheelchair was sufficiently reclined or that the wedge cushion was in place, and turned away from Resident 1 to retrieve a comb from the dresser.  While the CNA's attention was elsewhere, Resident 1 fell forward out of her wheelchair onto the floor.  These facts are sufficient to demonstrate that Petitioner failed to take all reasonable steps to prevent an accident to Resident 1.  As a result of her fall, Resident 1 sustained injuries that required her to be hospitalized.  Accordingly, Petitioner was out of substantial compliance with 42 C.F.R. § 483.25.

***4. Petitioner did not comply substantially with 42 C.F.R.******§§ 483.24, 483.25 (Tag F309) because it failed to provide the necessary care and services to attain Resident 1's highest practicable physical, mental, and psychosocial well-being.***

As I have described above, Petitioner failed to develop a comprehensive and accurate care plan for Resident 1, thereby failing to comply with 42 C.F.R. §§ 483.20(d), 483.21(b)(1) (Tag F279).  Further, I have found that Petitioner also failed to provide Resident 1 with the supervision and assistive devices she needed to avoid a foreseeable accident, and thereby failed to comply with 42 C.F.R. § 483.25(d) (Tag F323).  Petitioner's failure to comply with the participation requirements governing care planning and accident prevention also supports a finding that the facility failed to comply substantially with the requirement to provide each resident with the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, consistent with the resident's comprehensive assessment and plan of care pursuant to 42 C.F.R. § 483.24.  *See Azalea Court*, DAB No. 2352, at 12 (2010), *aff'd sub nom Azalea Court v. U.S. Dep't of Health & Human Servs.*, 482 F. App'x 460 (11th Cir. 2012) (the quality of care provisions "effectively incorporate[] those [care planning] requirements" through the introductory language of section 483.25); *see also Brian Center Health and Rehabilitation/Goldsboro*, DAB No. 2336, at 6 (2010) (if a given set of facts demonstrates that a facility has violated more than one participation requirement, CMS may, in its discretion, charge the facility with violating any, or all, of the applicable requirements).

Therefore, for the same reasons described in sections IV.C.2 and IV.C.3 of this decision, I conclude that the facility failed to provide the care and services needed to attain Resident 1's highest practicable physical, mental, and psychosocial well-being.  I further conclude that Resident 1 suffered actual harm because of Petitioner's noncompliance.

**Page 19**

Accordingly, Petitioner did not comply substantially with 42 C.F.R. §§ 483.24, 483.25.  Having concluded that Petitioner failed to comply substantially with Medicare participation requirements, I next consider whether the remedies imposed are reasonable.

***5. A CMP of $1,515 per day from August 11, through August 30, 2017, for a total CMP of $30,300, 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 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).

Here, CMS imposed a CMP of $1,515 per day from August 11 through 30, 2017.  CMS Ex. 2 at 2; CMS Ex. 3 at 2.  At the time of the August 2017 survey, the range for a per‐day CMP for deficiencies that do not pose immediate jeopardy was $105 to $6,289.  42 C.F.R. § 488.438(a)(2); *see also*82 Fed. Reg. at 9188.  Accordingly, the CMP imposed is approximately one‐fourth of the maximum per‐day CMP for deficiencies that do not constitute immediate jeopardy.  Applying the regulatory factors, I find that a CMP of this amount is reasonable.

CMS cited the scope and severity of the most serious deficiency at level "G," which represents an isolated instance of actual harm to a resident.  The harm Resident 1 suffered was serious, as she required inpatient hospitalization for treatment of head trauma with subacute subdural hematoma.  *See* CMS Ex. 10 at 42.  While there is no doubt that

**Page 20**

Resident 1 suffered actual harm, the severity of her injury might have supported a citation at the immediate jeopardy level.  As such, the seriousness of the deficiency alone would support a CMP much greater than the relatively modest amount at issue.  The facility's culpability provides additional support for the CMP amount.  Resident 1 was known to be at risk for falls because she had previously fallen from her wheelchair in April 2015.  Notwithstanding the fact that Resident 1's physician and Petitioner's rehabilitation staff concluded that Resident 1 required a reclining wheelchair equipped with a wedge cushion and required the assistance of two staff for transfers, these interventions were not included in Resident 1's care plan.  At a minimum, these facts demonstrate that the facility neglected to plan for and implement the supervision and assistance devices Resident 1 needed to prevent falls.  Thus, the seriousness of the noncompliance, coupled with the facility's culpability for that noncompliance, amply demonstrates that the CMP imposed in this case was reasonable.

CMS argues that Petitioner has a history of noncompliance that justifies an increased CMP amount.  CMS Br. at 17.  I do not rely on Petitioner's compliance history in sustaining the CMP at issue, however.  As discussed above, the factors of seriousness and culpability sufficiently support the CMP imposed without considering Petitioner's compliance history.

Finally, Petitioner does not claim that its financial condition affects its ability to pay the CMP.  *See Gilman Care Ctr.*, DAB No. 2357 at 7 (2010) (facilities bear the burden of proving financial condition by the preponderance of the evidence).  I therefore do not consider this factor.

Regarding the duration of the CMP, Petitioner argues that it was in substantial compliance with Medicare participation requirements at all times and accordingly, no CMP should be imposed.  P. Poshrg. Br. at 17.  However, for the reasons I have explained above, I have concluded that Petitioner did not comply substantially and, accordingly, a CMP is authorized.  Petitioner has not argued that, if I were to find it out of substantial compliance, it returned to substantial compliance before August 31, 2017.  It is well-settled that, once CMS has demonstrated a facility is not in substantial compliance with Medicare participation requirements, continuing noncompliance is presumed and the burden is on the facility to demonstrate it returned to substantial compliance earlier than the date alleged by CMS.  *Premier Living & Rehab. Ctr.*, DAB No. 2146 at 23 (2008) ("[O]nce a facility has been found to be out of substantial compliance, it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.").  The reasonableness of the duration of the CMP is thus undisputed.

In summary, the seriousness of the deficiencies and Petitioner's culpability fully justify the CMP amount in this case, even without considering Petitioner's compliance history.  Each of the regulatory factors, whether viewed separately or in tandem, supports the

**Page 21**

imposition of a CMP in the amount imposed.  I therefore conclude that a CMP of $1,515 per day from August 11, through August 30, 2017, for a total CMP of $30,300, is reasonable.

VI.  Conclusion

For the reasons explained above, I affirm CMS's determination that Petitioner was not in substantial compliance with at 42 C.F.R. §§ 483.20, 483.21, 483.24, and 483.25 (Tags F279, F309, and F323), and that a $1,515 per‐day CMP from August 11 through 30, 2017 for a total CMP of $30,300 is reasonable.


          /s/
        Leslie A. Weyn

                      Administrative Law Judge
      1. 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 May 28, 2021).  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 May 28, 2021).  As relevant here, a scope and severity level of "G" describes a deficiency that causes actual harm but does not pose immediate jeopardy to resident health and safety.  A scope and severity level of "D" describes a deficiency that has the potential for more than minimal harm but does not cause actual harm. back to note 1
                      2. The "falling star" program was used to "remind staff to monitor these residents for fall prevention."  P. Ex. 4 at 1.  To identify the residents affected, the facility placed stars on the residents' name plates or on the wall outside the residents' rooms next to their names.  Id. back to note 2
                      3. Petitioner alleges that two staff members were present at the time.  See, e.g. P. Br. at 18.  However, for the reasons discussed below, I find it more likely than not that only one CNA performed the transfer. back to note 3
                      4. In 2016, CMS issued a final rule that re-designated and revised the provisions of 42 C.F.R. Part 483.  See Final Rule, Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68,688 (Oct. 4, 2016).  Prior to 2016, the comprehensive care planning requirement was codified at 42 C.F.R. § 483.20(k).  The revised comprehensive care planning requirements appear at 42 C.F.R. § 483.21(b).  See id. at 68,827, 68,858-59.  The overarching requirement that facilities "develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment" that appeared in former section 483.20(k) can still be found in the revised section 483.21(b), albeit with some additions.  Compare 42 C.F.R. § 483.20(k)(1) (2008) with 42 C.F.R. § 483.21(b)(1) (2017).  I therefore find the reasoning in the Sheridan decision continues to be persuasive authority in interpreting the revised participation requirement for care planning. back to note 4
                      5. For example, the care plan included typewritten approaches to provide proper fitting shoes and to monitor the resident's gait.  CMS Ex. 9 at 8.  However, Resident 1 was nonambulatory and dependent on her wheelchair for mobility.  See id. at 2; see also CMS Ex. 6 at 12. back to note 5
                      6. The instruction to "keep assistive device in good working order" (CMS Ex. 9 at 7) would not alert an unfamiliar staff member to use the wedge cushion with the wheelchair for safety and to prevent falls.  Resident 1 required multiple assistive devices, in addition to the wedge cushion, including her wheelchair, splints for her hand and elbow, and a knee brace.  See id. at 9, 13.  Thus, even if the care plan intervention regarding assistive devices could be read as applying to the wedge cushion, the instruction was vague because it did not identify or differentiate the assistive devices. back to note 6
                      7. I infer that two different individuals held the position of Petitioner's DON during the course of the survey.  When Surveyor Lee first visited the facility on May 17, 2017, she identified Leila Rios as "DON 1."  CMS Ex. 4 at 11.  On her subsequent visits of August 1 and 2, 2017, Surveyor Lee identified Florence Edora as "DON 2."  Id. at 18. back to note 7
                      8. CMS Ex. 4 consists of some of the notes recorded by Surveyor Lee during the survey.  See Tr. at 20-21, 23-24.  I find it more likely than not that the notes recorded by Surveyor Lee accurately reflect the content of the interviews she conducted. back to note 8
                      9. In a written statement dated August 22, 2017, Nurse Yu attempted to contradict what he had told Surveyor Lee during the survey.  P. Ex. 7.  In that statement, Nurse Yu claimed that his remarks were intended to describe Resident 1's condition in January 2017, as captured during the MDS look back period.  Id.  Nevertheless, Nurse Yu's written statement concedes that Resident 1's care plan "did not indicate number of support from staff [sic]."  Id.  The statement concludes that Petitioner "recently started [a] care guide for all residents . . . indicating how many [staff members are] needed for ADL support."  Id.  I interpret "recently" to mean that the care guide specifying the number of staff required to assist each resident was not in place at the time Resident 1 fell. back to note 9
                      10. As discussed above at note 4, in 2016 the participation requirements for SNFs were revised and some of the regulations were redesignated.  See 81 Fed. Reg. at 68,828-31.  Prior to the revision, the content of subsections 483.25(d)(1) and (2) was codified at subsections 483.25(h)(1) and (2).  The Meadowwood decision interpreted 42 C.F.R. § 483.25(h)(1) and (2), as did the other decisions cited in this discussion section.  I find it appropriate to rely on the reasoning of these decisions in the present case because there was no substantive change to the language when 42 C.F.R. § 483.25(h)(1) and (2) were re-codified as § 483.25(d)(1) and (2). back to note 10
                      11. I find it is more likely than not that Resident 1 was transferred from the bed to her wheelchair, rather than from her wheelchair to the bed.  All accounts of the fall other than that found in CMS Ex. 5 describe that Resident 1 fell after being transferred from bed to her wheelchair.  See, e.g., CMS Ex. 4 at 13; CMS Ex. 15 at 5, 6. back to note 11
                      12. The first day of the survey was May 17, 2017.  See, e.g., CMS Ex. 4 at 4.  Surveyor Lee attempted to interview CNA Francisco by telephone on that date, but was unable to reach her.  Id. at 9. back to note 12
                      13. It is not clear to me that this sentence refers to a wedge cushion.  A "wheelchair cushion" in the wheelchair may have been a flat seat cushion.  As such, I do not find this statement tends to prove that the wedge cushion was on the wheelchair.  Moreover, in this statement CNA Francisco claimed only that the wedge cushion was "available," not that it was used.  P. Ex. 10 at 2. back to note 13
                      14. As I have described above, Resident 1's care plan did not, in fact, mention the resident's need for a wedge cushion. back to note 14
                      15. In addition, I find it implausible that a single CNA could simultaneously lift the resident and place the wedge cushion under her. back to note 15
                      16. To the contrary, until the DON prompted her, the only intervention CNA Francisco could think of to prevent Resident 1 from leaning forward in her wheelchair was to "put her in front of [a] table in [the] activity room."  CMS Ex. 4 at 25.  I infer that, if the CNA had reclined Resident 1's wheelchair, there would be no need to use a table as a physical barrier to prevent the resident from leaning forward. back to note 16
                      17. Although CNA Francisco provided one of her written statements on August 2, 2017, the same day as the demonstration, the statement was signed at "10:51 AM."  CMS Ex. 4 at 3.  The interview at which the DON prompted CNA Francisco regarding the need to recline the wheelchair occurred at "9:50."  Id. at 25. back to note 17 Back to top
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