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                              Life Care Center of Merrimack Valley, CR6315 (2023)
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Life Care Center of Merrimack Valley, CR6315 (2023)








  
  
    

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





Life Care Center of Merrimack Valley
(CCN: 225546),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-20-437Decision No. CR6315July 17, 2023

        
              
    

      DECISION

Life Care Center of Merrimack Valley (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. §§ 483.21(b)(1) (Tag F656), 483.25(b)(1)(i), (ii) (Tag F686), and 483.25(d)(1), (2) (Tag F689).  Petitioner also challenges the imposition of a per‐day civil money penalty (CMP) of $725 for 28 days, for a total CMP of $20,300.  For the reasons discussed below, I find that Petitioner failed to substantially comply with the Medicare participation requirements found at 42 C.F.R. §§ 483.21(b)(1) and 483.25(d)(1), (2).  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 Billerica, Massachusetts, that participates in the Medicare program.  CMS Exhibit (Ex.) 1 at 1; CMS Ex. 2 at 1.  The Massachusetts Department of Public Health, Division of Health Care Facility Licensure and Certification (state agency) conducted a survey of Petitioner’s facility that commenced on October 15, 2019 and was completed on October 16, 2019.  CMS Ex. 1 at 1; CMS Ex. 2 at 1; CMS Ex. 3 at 8.  Based on the survey findings, the state agency found Petitioner out of substantial compliance with 42 C.F.R. §§ 483.21(b)(1) (Tag F656), 483.25(b)(1)(i), (ii) (Tag F686), and 483.25(d)(1), (2) (Tag F689) and

**Page 2**

recommended to CMS that remedies be imposed.  CMS Ex. 1; CMS Ex. 2 at 1.  The facility’s noncompliance with 42 C.F.R. §§ 483.21(b)(1) (Tag F656) and 483.25(d)(1), (2) (Tag F689) was cited at a scope and severity level “G.”1  CMS Ex. 1 at 1, 8; CMS Ex. 2 at 1.  The facility’s noncompliance with 42 C.F.R. § 483.25(b)(1)(i), (ii) (Tag F686) was cited at a scope and severity level “D.”  CMS Ex. 1 at 5; CMS Ex. 2 at 1.  CMS concurred with the state agency’s recommendation and, by letter dated February 12, 2020, imposed a per-day CMP of $725 for a 61-day period, for a total of $44,225, and a two-year prohibition on conducting a nurse aide training and competency evaluation program.  CMS Ex. 2 at 1, 3-4.  By letter dated February 13, 2020, CMS notified Petitioner that due to a significant delay in the release of the statement of deficiencies, CMS reduced the CMP accrual period by 33 days, which meant that CMS was imposing a per-day CMP of $725 for a 28-day period, for a total of $20,300.  *Id*. at 7.  This reduction in the accrual period resulted in the recalculation of the total amount of the CMP.  *Id.*

By a letter dated February 20, 2020, Petitioner requested Independent Informal Dispute Resolution (IIDR) regarding the survey completed on October 16, 2019.  CMS Ex. 12 at 1.  The letter explained that Petitioner was requesting review of the “two G level tags, F656 and F689, cited during the October 16, 2019 Complaint survey.”  *Id*.  By letter dated July 27, 2020, the state agency informed Petitioner that the IIDR Committee met on July 22, 2020, to review the survey findings and Petitioner’s rebuttal.  P. Ex. 1.  The state agency advised that there would be no change to the statement of deficiencies.  *Id*.

Petitioner timely requested a hearing before an administrative law judge.  The case was assigned to me for hearing and decision.  My office acknowledged receipt of Petitioner’s hearing request and provided a copy of my Standing Prehearing Order (Prehearing

**Page 3**

Order).  Pursuant to the Prehearing Order, CMS filed its Prehearing Brief (CMS Br.) and 13 proposed exhibits (CMS Exs. 1-13), including the written direct testimony of one witness.  Petitioner filed a Prehearing Brief (P. Br.) and six proposed exhibits (P. Exs. 1‐6), including the written direct testimony of four witnesses.  Petitioner requested to cross-examine CMS’s proposed witness.  Although CMS initially requested to cross-examine Petitioner’s four witnesses, CMS later waived its opportunity to cross-examine them.  *See*Docket Entry #12 in the Departmental Appeals Board (DAB) Electronic Filing System (E-File).

On December 17, 2021, I held a hearing by video teleconference and a transcript (Tr.) was made of the proceeding.2  I presided remotely from my home office in the greater Washington, D.C. area.  Joseph L. Bianculli, Esq., represented Petitioner and appeared from his home office in Maryland.  Tr. at 2.  Jill Steinberg, Assistant Regional Counsel, represented CMS and appeared from the CMS Regional Office in Boston, Massachusetts.  *Id.*at 1-2.  In the absence of objection, I admitted into evidence CMS Exs. 1-12 and P. Exs. 1-6.  *Id.*at 6.  I admitted CMS Ex. 13 into the record after CMS’s witness, Health Care Facilities Inspector Marsha Tomes, RN (Surveyor Tomes) authenticated her written direct testimony.  Tr. at 13.  During the hearing and in response to Surveyor Tomes’ testimony, Petitioner requested that I allow Petitioner to call Ashley Benevides, Petitioner’s Director of Rehabilitation (Director Benevides), as a rebuttal witness.  Tr. at 90-96.  I granted that request and allowed Director Benevides to be offered as a rebuttal witness.  Tr. at 97.

Following the hearing, the parties filed post-hearing briefs (CMS Post-hrg. Br., P. Post‐hrg. Br.) and post-hearing replies (CMS Reply, P. Reply).

II.  Issues

The issues in this case are:

Whether Petitioner was in substantial compliance with Medicare participation requirements at 42 C.F.R. § 483.21(b)(1) (Tag F656);
	Whether Petitioner was in substantial compliance with Medicare participation requirements at 42 C.F.R. § 483.25(d)(1), (2) (Tag F689); and
	If Petitioner was not in substantial compliance with Medicare participation requirements, then whether the per-day CMP imposed is reasonable.Page 4

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 Background**The Act sets requirements for SNF participation in the Medicare program.  The Act 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. part 483.

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 is a violation of a participation requirement established by section 1819(b), (c), and (d) of the Act (42 U.S.C. § 1395i-3(b), (c), (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 the 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.  When the results of a survey show that a SNF is not in substantial compliance with program participation requirements, the Secretary may impose enforcement remedies such as CMPs.  Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)); 42 C.F.R. § 488.406.

If CMS imposes a CMP based on a noncompliance determination, then the SNF 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 imposed CMP was reasonable.  A SNF may challenge CMS’s finding as to the level of noncompliance only if a successful challenge would affect the range of CMP amounts imposed on the SNF or there is a finding of substandard quality of care that results in the loss of approval for a SNF of its nurse aide training program.  Act §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g)(1), 488.330(e), 488.434(a)(2)(viii), 498.3(b)(13)-(14); *see also*5 U.S.C.

Page 5

§§ 554, 556.  The facility may not appeal CMS’s choice of remedies.  42 C.F.R. § 488.408(g)(2).

In a hearing before an administrative law judge, CMS must make a prima facie case that the SNF failed to comply substantially with federal participation requirements.  If CMS makes a prima facie case, the burden of persuasion shifts to the SNF, which must prove substantial compliance by a preponderance of the evidence.  *Hillman Rehab. Ctr.*, DAB No. 1611 (1997) (1997 WL 123708 at *4), *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 Analysis3**CMS’s allegations of substantial noncompliance, which Petitioner disputes, center on the care Petitioner provided to one resident, identified as Resident 1 during the state agency survey.  In the following sections of this decision, I first recite the facts that I find are established by the documentary and testimonial evidence.  I next explain why these facts support the conclusion that Petitioner failed to comply substantially with Medicare participation requirements.  Finally, I discuss my conclusion that the CMP imposed is reasonable.

***I find the following facts by a preponderance of the evidence, based on my review of the entire record in this case.***At the time of the events at issue in this case, Resident 1 was a 73-year-old man, originally admitted to Petitioner’s facility in March 2018, for long-term care.  CMS Ex. 4 at 1, 41.  His diagnoses included frontotemporal dementia with behavioral disturbance, Alzheimer’s disease with early onset, depression, anxiety disorder, generalized muscle weakness, atherosclerotic heart disease, and spherocytosis with chronic anemia, among other conditions.  *Id*. at 2, 36.  Several of Resident 1’s diagnoses, including hereditary spherocytosis, frontal lobe dementia, and protein-caloric malnutrition are factors that significantly contribute to osteopenia, osteoporosis, and pathological fractures.  P. Ex. 6 at 3.  A pathological fracture is a “spontaneous” fracture “caused by ordinary activities of daily living without unusual trauma.”  *Id.*

Page 6

On or about October 26, 2018, Petitioner’s physical therapy department conducted an evaluation of Resident 1.  CMS Ex. 5 at 39-41.  The purpose of the evaluation was to “address appropriate seating and transfer status to facilitate nursing care and safety of [patient] and staff.”  *Id.*at 39.  At that time, physical therapist Amy Giurleo, (PT Giurleo), assessed Resident 1’s transfer status as “Total Dependence [without] attempts to initiate.”  *Id.*at 40.  The therapist further noted that Resident 1 “required dependent assistance for transfer bed < > chair.”  *Id.* Resident 1 was discharged from further physical therapy skilled services on October 28, 2018, because he was sent out to an acute care hospital.  *Id.*Based on the October 2018 physical therapy assessment, I find it more likely than not that, at that time, Resident 1 was totally dependent on staff for transfers to and from bed.

A resident who is totally dependent on staff, i.e., a resident who cannot bear any weight or follow prompts at all, is usually transferred using a “dependent” mechanical lift, also known by the brand name “Hoyer” lift.  *See*P. Ex. 3 at 3.  A Hoyer lift uses a full-body sling which is wrapped around the resident and connected to a boom which lifts the resident like a small crane.  CMS Ex. 11 at 1-2; *see also*P. Ex. 3 at 3.  I find it more likely than not that when describing Resident 1 as totally dependent on staff for transfers in the October 2018 assessment, the therapist was opining that, at the time, the resident needed to be transferred using a Hoyer lift.

The record does not reveal the exact date Resident 1 returned to Petitioner’s facility from the hospital, but I infer that he did so in early November 2018.  *See*CMS Ex. 4 at 12 (health status note from November 6, 2018).  Upon his return to the facility, Resident 1 received hospice services.  *See, e.g., id.*at 11 (“[Resident 1] continues with hospice services [status post] acute hospitalization.”).  During his first weeks back at the facility, Resident 1 was noted to be lethargic; he was receiving oxygen via nasal cannula; and he had a Foley catheter in place.  *Id.*at 10-12.  An activity participation note dated November 21, 2018, documents that “Family and hospice [staff] wheel [the resident] around.”  *Id.*at 9-10.

Resident 1’s care plan, initiated on November 21, 2018, focused on Resident 1’s inability to perform activities of daily living (ADLs):

The resident has an ADL self-care performance deficit [related to] end stage dementia with inability to initiate sequence, or follow through with tasks[.]

CMS Ex. 4 at 19, 21.  According to the care plan, Resident 1 was totally dependent on staff for personal hygiene, bathing, dressing, eating, mobility, and repositioning in bed.  *Id.*at 19-20.  The care plan intervention for bed mobility instructed:  “The resident requires (SPECIFY WHAT assistance) by (X) staff to turn and reposition in bed (SPECIFY FREQ) and as necessary.”  *Id.*at 20.  Regarding transfers, Resident 1’s care

Page 7

plan provided “***The resident requires Mechanical lift (SPECIFY) with two staff assistance for transfers*.**”  *Id*. at 21 (emphasis added).

Resident 1 also had communication problems related to his “end stage dementia.”  CMS Ex. 4 at 21. Since his communication problem was so advanced, Petitioner instructed its staff to communicate with him “through [the interpretation of] nonverbal communication.”  *Id.*  Resident 1 was also noted to have difficulty with decision-making, impaired decision-making, and long-term and short-term memory loss.  *Id*. at 22.  Finally, Petitioner assessed Resident 1 to be at risk for falls due to poor safety awareness, little awareness of environment, and poor balance.  *Id.*at 23.

Resident 1’s condition improved somewhat while he was residing at Petitioner’s facility.  Resident 1 initially resided on Petitioner’s dementia unit, but “transitioned off the dementia unit as his behaviors improved.”  P. Ex. 6 at 2; *see also*CMS Ex. 4 at 7.  In addition, Resident 1 was discharged from hospice care.  P. Ex. 6 at 2; CMS Ex. 4 at 7.  A Plan of Care note dated February 6, 2019, documents that Resident 1 had moved into a new room.  CMS Ex. 4 at 7. Another Plan of Care note dated February 13, 2019, states that “Care plans for significant change in status [were] reviewed with IDT [inter-disciplinary team] this date.”  *Id.* Petitioner revised several items in Resident 1’s care plan on or around February 12, 2019.  *Id.*at 17-18.  However, Petitioner did not revise the care plan interventions for ADLs and transfers at that time.  *Id.*at 19-21.

On June 21, 2019, PT Giurleo, the same therapist who performed the October 2018 assessment, assessed Resident 1 for a potential change in his seating system.  *Id.*at 14‐16 (another copy of the same assessment appears at pages 40‐42).  The therapist documented that Resident 1 was referred to physical therapy because he had recently experienced two falls from his current chair and Petitioner’s nursing staff was concerned about whether it was safe to continue using that chair.4  *Id.*at 15, 16.  In lieu of completing several assessment tasks, PT Giurleo recorded that Resident 1 was unable to participate because of his “inability to follow . . . commands for directions secondary to cognitive loss.”  *Id.*at 15.  Similarly, the assessment noted that Resident 1 was totally dependent on staff because he could not follow directions; rated Resident 1’s orientation with the numerical value of zero; and noted that his safety awareness was impaired.  *Id.*at 15, 16.  The physical therapy assessment did not directly evaluate Resident 1’s transfer status.  *See, e.g.,* CMS Ex. 8 at 19.  Although the focus of the assessment was not Resident 1’s transfer status, PT Giurleo noted several times that Resident 1 was dependent on the Hoyer lift****for transfers out of bed.  CMS Ex. 4 at 14, 15, 16.  Resident 1’s attending

Page 8

physician certified the assessment.  *Id.*at 40.  Following the physical therapy assessment, on July 29, 2019, Petitioner revised Resident 1’s care plan to note that the resident was “total[ly] dependent in geri chair for mobility[.]”  *Id.*at 19.

Sometime in or about August or September 2019, Resident 1 regained sufficient function to stand and bear weight.  For example, several staff members reported that, during the month prior to the incident on September 10, they had seen Resident 1 out of bed, but not in his geri chair.  *See*CMS Ex. 6 at 11, 13, 23 (on 9/9/19 a certified nursing assistant (CNA) found Resident 1 in his room standing between his chair and bed; one of Petitioner’s nurses saw Resident 1 ambulating in the hallway during the month prior to 9/13/19; another CNA saw Resident 1 standing next to his bed during the weekend of 9/7-9/8/19).  Other staff described transferring Resident 1 using a stand and pivot technique, rather than by a mechanical lift.  CMS Ex. 8 at 10, 17.

Also prior to September 10, 2019, Petitioner’s staff would sometimes transfer Resident 1 using a “sit to stand” lift, also known by the brand name “Sabina” lift.  *See, e.g.,*CMS Ex. 6 at 23; CMS Ex. 8 at 7 (9/10 was the second time the CNA had transferred Resident 1 using the Sabina lift); *id.*at 9 (previous to 9/10, CNAs “sometimes” used the Sabina).  A Sabina lift is “especially designed for people who have difficulty in standing up on their own from a seated position.  Sabina is intended for use with patients who can actively participate in the raising motion.” CMS Ex. 6 at 43; *see also*P. Ex. 3 at 3.  A Sabina lift consists of a lift mast with a lift arm at the upper part of the lift mast.  *See*CMS Ex. 6 at 45.  A sling bar attaches to the lift arm.  *Id.* The person requiring assistance dons a support vest that attaches to the sling bar using straps.  *Id.*at 52.  Before lifting the person, their feet must be on the foot rest of the lift and their shins against the lower leg support.  *Id*. at 45, 52.  To be lifted, the person must be able to grab the sling bar.  *Id.*at 52.  The Sabina lift may be used for passive lifting “as a temporary solution.”  *Id.*at 56.  However, for passive lifting, the lower leg support and foot rest should be removed.  *Id.*at 55.

On the morning of September 10, 2019, at about 8:48 a.m., a respiratory therapist assessed Resident 1.  CMS Ex. 4 at 3.  According to the therapist’s assessment note, Resident 1’s hands had a “very cold purple/blue tint to them” and his pulse was irregular at the time.  CMS Ex. 4 at 3.  The therapist noted that the “[p]lan [was] to monitor and contact MD or NP if status changed further.”  CMS Ex. 4 at 3.  Around 2:15 p.m., an order was entered for acetaminophen as needed “for pain or elevated temp[erature].”  CMS Ex. 4 at 3.  Shortly thereafter, Nurse 1 documented in the progress notes Resident 1’s status.  CMS Ex. 4 at 3.  Around 3:00 p.m., Nurse 1 documented in the progress notes that “Resident noted with pain when touch[ing] lower abd[ominal] area, [acetaminophen] . . . given.  Will inform NP.”  CMS Ex. 4 at 3.  Resident 1 continued to receive pain medication into the evening.  CMS Ex. 4 at 3.  Eventually, visiting family members requested that the resident be sent to the emergency department for evaluation, and

Page 9

Resident 1 was transferred to the hospital that evening.  CMS Ex. 4 at 3; CMS Ex. 5 at 1‐2, 50.

While at the hospital, Resident 1 was diagnosed with, inter alia, sepsis due to cholangitis, “[b]ilateral acetabulum complex comminuted displaced fractures”5 and an “[i]nterval L5 mild (approximately 25%) superior endplate compression fracture.”  CMS Ex. 5 at 3, 47.  Under admission history, the hospital records noted that “[p]er [Resident 1’s SNF] chart patient was also diagnosed with ileus.”  CMS Ex. 43 at 3.  Ileus is a condition where there is “loss of mobility of the digestive tract or possible blockage.”  P. Ex. 6 at 2 (Dr. Bertos Decl.).  The hospital records noted that Resident 1 probably had “ileus, possibly related to the bilateral acetabular fractures.”  CMS Ex. 5 at 90.  Resident 1 was discharged from the hospital on September 18, 2019.  CMS Ex. 5 at 43.  According to the resident’s daughter, Resident 1 passed away in October 2019.  CMS Ex. 8 at 23.

Petitioner investigated Resident 1’s fractures and reported the results of its investigation to the state agency.  CMS Ex. 6 at 1-42.  The investigation revealed that, on September 10, 2019, two CNAs attempted to transfer Resident 1 from his bed to his chair by using a Sabina lift.  CMS Ex. 6 at 1-3, 6, 23, 41, 43.  Petitioner’s investigation revealed that, during the transfer, Resident 1 started resisting the CNAs’ attempt to place him on the Sabina lift.  *Id.*at 23.  Eventually, the CNAs were able to “get him on the Sabina lift.”  *Id*.  Once on the lift, Resident 1 “kneeled on the [lower leg support] in front of his legs on the Sabina[‒]” a behavior Resident 1 was known to display ‒ and “lifted [his] feet off [the] footrest.”  *Id.*; *see also*CMS Ex. 8 at 7-10 (“He would [at times] put his knee up on the bar . . . .  Lifting his feet was something he did [at] times [on the] Sabina.”).  Since the CNAs observed this kneeling behavior displayed by Resident 1, they “lowered the resident back into his bed.”  CMS Ex. 6 at 6.  The CNAs attempted a second time to transfer Resident 1, again using the Sabina lift, but Resident 1 “again placed his knees on the cross bar.”  CMS Ex. 6 at 6.  The CNAs called for assistance from a nearby nurse, who assisted with repositioning the resident’s legs to ultimately get him transferred into the Broda Chair.6  *Id.*; *see also*CMS Ex. 8 at 7-10.  Petitioner initially concluded that it “[was] not able to determine the timeframe, location/setting or cause of the resident fractures.”  CMS Ex. 6 at 41.  In an addendum to its investigation report, the facility

Page 10

concluded that, upon further review, “the injury that occurred may have been the result of the resident kneeling on the Sabina Lift.”  *Id.* at 3.

The state agency conducted a complaint survey at Petitioner’s facility on October 15 and 16, 2019.  *See, e.g.,*CMS Ex. 1.  Surveyor Tomes participated in the survey and in drafting the statement of deficiencies.  CMS Ex. 13 at 1 (¶¶ 1-4); *see also*Tr. at 13.  Surveyor Tomes testified that the notes she made during her investigation and the findings in the statement of deficiencies (Form CMS-2567) accurately reflect the information she gathered during the survey.  CMS Ex. 13 at 1-2 (¶ 5).  As part of her investigation, Surveyor Tomes interviewed members of Petitioner’s staff.  The notes of those interviews appear in CMS Ex. 8.  Unless I explicitly state otherwise, I find it more likely than not that the handwritten notes in CMS Ex. 8 and the accounts in the statement of deficiencies accurately record the substance of the interviews Surveyor Tomes conducted.

During an interview on October 15, 2019, Petitioner’s director of nursing (DON), Kim Cote, told Surveyor Tomes that, if Resident 1 was lifting his feet during transfer with the Sabina lift, “*staff should have stopped* [the transfer] when he lifted his feet.”  CMS Ex. 8 at 5-6 (emphasis added).  DON Cote also informed the surveyor that she “would have expected staff would report that he was lifting his feet off the Sabina lift[,] and we would have had him reeval[uated] for safer [transfer.]”  *Id.* at 6.  Consistent with DON Cote’s statement, Director Benevides told Surveyor Tomes that if Resident 1 was lifting his feet and putting his knees on the knee rest, staff should have referred him to the therapy department to assess him for the safest transfer mode.  *Id.*at 15.  Similarly, PT Giurleo told Surveyor Tomes:

[Transfer] *should be stopped* if the res[ident] lifts their feet off the foot plate.  [T]hen staff should re-try or find another way to [transfer] the person.  *All I know is it would not be safe to continue*[.]  [C]an’t speak for what potential injuries may occur.  If behavior of lifting feet or kneeling on knee guard continued on more occasions, [she] would expect [patient] to be referred to [her] for eval[uation].”

CMS Ex. 8 at 19-20 (emphasis added).  One of Petitioner’s nurses, Jamie Jenks, RN, who assisted the CNAs to transfer Resident 1 on September 10, told Surveyor Tomes that Resident 1 had his knees up on the knee pads and never put his feet down or stood during the transfer.  *Id.*at 17-18.  Finally, Petitioner’s staff development coordinator, Rhoda Connolly, LPN, told Surveyor Tomes, “if resident puts [their] knees up on the knee pad, staff are educated to sit res[ident] back down [and] retry.  Can’t push legs down ‒ could cause injury/bruising while still up.  [F]eet should be on the foot plate [at all times].  I was not aware [Resident 1] was known to lift his feet up until after he was sent out [to the

Page 11

hospital].  *Procedure should have been to reassess* [transfer] *status either by* [nursing] *or by PT*.”  *Id.*at 28-29 (emphasis added).

Director Benevides also told Surveyor Tomes she was unaware Resident 1 was ever assessed for transfer by Sabina lift.  *Id.*at 15.  She also noted that Resident 1 was not able to follow directions most days.  *Id.*

***Petitioner was not in substantial compliance**with 42 C.F.R. § 483.21(b)(1)**(i)**because Resident 1’s care plan did not describe the services that were to be furnished to attain or maintain Resident 1’s highest practicable physical, mental, and psychosocial well-being.***Pursuant to section 1819(b)(2) of the Act (42 U.S.C. § 1395i-3(b)(2)), a SNF ‒

must provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care which ‒

(A) describes the medical, nursing, and psychosocial needs of the resident and how such needs will be met;

(B) is initially prepared . . . by a team which includes the resident’s attending physician and a registered professional nurse with responsibility for the resident; and

(C) is periodically reviewed and revised by such team after each assessment under paragraph (3).

The implementing regulation, 42 C.F.R. § 483.21(b)(1), directs SNFs to “develop and implement a comprehensive, person-centered care plan for each resident, . . . that includes measurable objectives and timeframes to meet a resident’s medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment.”  More specifically, under subsection (b)(1)(i), the comprehensive care plan must describe “[t]he services that are to be furnished to attain or maintain the resident’s highest practicable physical, mental, and psychosocial well-being as required under [42 C.F.R.] § 483.24, § 483.25, or § 483.40.”  “The purpose of the care planning requirement is to ensure that a resident receives the services essential to meet [their] assessed needs and to help the resident achieve or maintain [their] ‘highest practicable’ level of well-being.”  *Park Manor Nursing Home*, DAB No. 2005 at 35 (2005) (2005 WL 3753088 at *21)

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(citing Act § 1819(b)(2)), *aff’d on other grounds,*495 F.3d 433 (7th Cir. 2007). 7  Further, “Without a properly developed and implemented care plan, it is not possible to ensure that the care provided to a resident by all of the staff and professionals in a facility (not all of whom may be familiar with the resident) is consistent, coordinated and meets the patient’s specific needs.”  *Sheridan Health Care Ctr.*, DAB No. 2178 at 36 (2008).

CMS found Petitioner out of compliance with 42 C.F.R. § 483.21(b)(1) based on the alleged failure to describe, in Resident 1’s care plan, the services Resident 1 needed to attain or maintain his highest practicable physical, mental, and psychosocial well-being.  CMS alleges that Petitioner failed to comply with the requirement because Resident 1’s care plan did not specify that Resident 1 was dependent on the Hoyer lift for transfers.  CMS Post-hrg. Br. at 14.  As a result, Petitioner used a Sabina lift to transfer Resident 1, which CMS asserts was neither indicated nor appropriate for his needs.  CMS Post-hrg. Br. at 13.  This failure to include the appropriate lift in Resident 1’s care plan, argues CMS, resulted in actual harm to Resident 1.  CMS Br. at 25; CMS Ex. at 1; CMS Ex. 2 at 1.

Petitioner disputes CMS’s allegation that Resident 1’s care plan was deficient.  Petitioner argues that the care plan described the services that were used to attain or maintain Resident 1’s highest practicable physical, mental, and psychosocial well-being.  P. Post‐hrg. Br. at 5-12.  Petitioner argues it complied with the regulation by including language that addressed Resident 1’s transfer needs and points out that the regulation does not require that a resident’s care plan include the specific type of mechanical lift that should be used to transfer a resident.  P. Post-hrg. Br. at 9.  As I explain below, I agree with CMS that Petitioner failed to comply substantially with the cited regulation.  Petitioner’s arguments do not convince me otherwise.

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)).  The weight of the evidence establishes that Petitioner did not comply substantially with 42 C.F.R.

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§ 483.21(b)(1).  To substantially comply with the regulation, Resident 1’s comprehensive care plan needed to describe the “services that [were] to be furnished to attain or maintain [Resident 1’s] highest practicable physical, mental, and psychosocial well-being as required under” sections 483.24, 483.25, or 483.40.  42 C.F.R. § 483.21(b)(1)(i).  However, Petitioner did not ensure that Resident 1’s care plan for transfers accurately described the services Resident 1 required, either at the time Petitioner established the intervention in November 2018, or in September 2019, when the transfer at issue in this case occurred.

***a. Resident 1’s care plan for transfers did not accurately describe the services required to attain or maintain his highest practicable physical, mental, and psychosocial well-being as of November 21, 2018.***

As of October 26, 2018, Petitioner’s therapy staff assessed Resident 1’s transfer status and concluded that he was totally dependent for transfers from bed to chair.  CMS Ex. 5 at 39-40.  A resident who is totally dependent for transfers requires a dependent (i.e., Hoyer) lift for transfers.  CMS Ex. 11 at 1-2; *see also*P. Ex. 3 at 3.  Yet, even after determining that Resident 1 was dependent on the Hoyer lift based on his assessed needs, Petitioner failed to include in Resident 1’s care plan a provision directing staff to use the Hoyer lift to transfer Resident 1. 8  Rather, Resident 1’s care plan stated Resident 1 required a mechanical lift for transfers but failed to indicate the type of lift.  CMS Ex. 4 at 21 (care plan includes the prompt “(SPECIFY)” rather than a type of lift).

Petitioner argues that Resident 1’s care plan adequately described the services to be furnished to maintain or attain Resident 1’s highest practicable well-being.  P. Post-hrg. Br. at 9.  According to Petitioner, the term “(SPECIFY)” in the care plan authorized a nurse to determine the type of mechanical lift needed for the transfer based on Resident 1’s condition and behavior at the time of the transfer.  P. Post-hrg. Br. at 10; P. Ex. 3 at 3 (“Thus, in many cases the therapist determines that nurses should use *some*mechanical lift, but the therapist leaves it to the discretion of the nursing staff to decide on an ad hoc basis which lift to use[.] . . .”).  Director Benevides testified that, in her opinion, it would have been inappropriate to specify a particular lift in Resident 1’s care plan because his “condition and demeanor was so variable[.]”  P. Ex. 3 at 5; P. Post-hrg. Br. at 11.

I do not find Director Benevides’ testimony on this point credible to this extent:  *at the time Petitioner initiated Resident 1’s care plan for transfers*, it was *not* appropriate to

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leave the decision as to which lift to use on a given day up to staff’s discretion.  *See*P. Ex. 3 at 5.  Petitioner initiated the care plan intervention requiring a mechanical lift to transfer Resident 1 on or about November 21, 2018.  CMS Ex. 4 at 21.  That date is less than one month after PT Giurleo assessed Resident 1 as totally dependent for transfers.  *See, e.g.,*CMS Ex. 5 at 38.  In the interim, Resident 1 had been hospitalized for a time.  *Id.*at 41.  I therefore infer Resident 1’s functional status had not improved significantly between October 26 and November 21, 2018.  *See*CMS Ex. 4 at 10-12.  Thus, I find it is more likely than not that, as of November 21, 2018, Resident 1 continued to be totally dependent for transfers and therefore needed to be transferred using the Hoyer lift.

Based on this timeline, I further infer that Petitioner intended the care plan intervention to transfer Resident 1 using a mechanical lift to reflect the results of PT Giurleo’s October 26, 2018 assessment, which found that Resident 1 was totally dependent for transfers.  I therefore find it more likely than not that Petitioner’s staff intended to refer to the Hoyer lift when creating Resident 1’s care plan but neglected to enter the information through inadvertence.  *See*Tr. at 16 (Petitioner’s DON told Surveyor Tomes that the placeholder “should have been filled in.”). 9  I do not find it likely that, in October or November of 2018, Resident 1 was capable of standing, bearing weight, or following instructions for using the Sabina lift.  Thus, during that time frame, Resident 1’s care plan did not “**ensure that [the] resident receives the *services essential to meet his assessed needs* and to help the resident achieve or maintain his ‘highest practicable’ level of well-being**.”  *Park Manor Nursing Home*, DAB No. 2005 (2005 WL 3753088 at *21) (emphasis added) (citing Act § 1819(b)(2)).

There is no evidence that, after November 21, 2018, Petitioner ever revised or updated Resident 1’s care plan as it related to transfers.  Therefore, while Resident 1 continued to reside at Petitioner’s facility through at least September 10, 2019, his care plan for transfers continued to rely on the same intervention for transfers, even though the record shows that Resident 1’s condition changed.

***b. Resident 1’s care plan for transfers did not accurately describe the services required to attain or maintain his highest practicable physical, mental, and psychosocial well-being as of September 10, 2019.***

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The record demonstrates that, at some point after November 21, 2018, Resident 1’s functional abilities improved to the point that he was sometimes able to stand and bear weight, and staff at times used either stand and pivot transfers or the sit to stand (Sabina) lift to transfer Resident 1.  *See*CMS Ex. 6 at 11, 13, 23; *see also*CMS Ex. 8 at 10, 17.  This evidence is consistent with Director Benevides’ written testimony that Resident 1 “sometimes could stand or even walk a little on his own,” but “his physical condition, cognitive status[,] and demeanor varied day by day and even hour by hour.”  P. Ex. 3 at 4-5; *see also*P. Ex. 6 at 2.  I find it more likely than not Resident 1’s condition improved after Resident 1 was discharged from hospice care and moved off the dementia unit, i.e., not earlier than January or February 2019.  *See*CMS Ex. 4 at 7.

Yet, despite these changes, Resident 1’s care plan continued to include the same intervention for transfers throughout 2019, namely, “The resident requires Mechanical Lift (SPECIFY) with two staff assistance for transfers.”  CMS Ex. 4 at 21.  Nothing in Resident 1’s care plan acknowledged that he was ambulatory at all, much less that he could perform stand and pivot transfers.  Nor is there any evidence that Petitioner’s therapy department assessed Resident 1’s ability to safely perform stand and pivot transfers or to use the Sabina lift.  At least one appellate decision of the DAB has opined that the care plan regulation includes an expectation that a resident’s care plan will be updated appropriately:  “Implicit in these requirements is the facility’s obligation to develop care plan revisions that meaningfully respond to changes in a resident’s particular needs.”  *Sheridan Health Care*, DAB No. 2178 at 38; *see also Good Shepherd*, DAB No. 2858 at 14 (staff must follow care plan unless they reassessed resident and revised the plan).  This view is consistent with the statutory requirement that care plans be “periodically reviewed and revised” by the IDT.  Act § 1819(b)(2)(C).

As I have described above, Director Benevides testified that, in her opinion, it would have been inappropriate to specify a particular mechanical lift in Resident 1’s care plan because his condition and demeanor varied from day to day.  P. Ex. 3 at 5.  Even if at some point in early to mid-2019 Resident 1 was sometimes able to participate in the sit to stand motion required to use the Sabina lift, I nevertheless understand Director Benevides’ testimony to opine that Resident 1’s care plan required, at a minimum, that he be transferred using some type of mechanical lift.  P. Ex. 3 at 5.  However, there is evidence that, absent any assessment or instruction to staff, staff at times transferred Resident 1 without the use of *any*mechanical lift, in contravention of his care plan.  *See, e.g.*, CMS Ex. 8 at 10, 17.

Thus, accepting Director Benevides’ reading of the care plan leads to the inescapable conclusion that ‒ one way or another ‒ Resident 1’s care plan did not accurately reflect his needs.  Either he was totally dependent for transfers (based on the October 2018 assessment), in which case he required a Hoyer lift for transfer, or, based on Resident 1’s varying capabilities (and staff’s actual practice in 2019) the resident was able to transfer *with or without*a mechanical lift, depending on his functional status on a given day.

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Resident 1’s care plan did not accurately depict either scenario and thus left staff without meaningful guidance on how to transfer the resident.  *See Sheridan Health Care*, DAB 2178 at 37 (“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 practicable . . . well-being.’”).

I conclude that Resident 1’s care plan was deficient without relying on PT Giurleo’s June 21, 2019 assessment of Resident 1’s seating needs.  Both CMS and Petitioner devote significant argument to the meaning of that assessment.  CMS contends the June 2019 assessment is further evidence that Resident 1 continued to be dependent on the Hoyer lift for all transfers and, at a minimum, should have prompted Petitioner to update Resident 1’s care plan to include this information.  CMS Post-hrg. Br. at 14.  Petitioner counters that the June 2019 assessment is inapplicable because the therapist was assessing Resident 1’s seating system, not Resident 1’s transfer status.  P. Post-hrg. Br. at 11.  I agree with Petitioner that PT Giurleo did not directly assess Resident 1’s transfer status during the June 2019 assessment.  This does not aid Petitioner’s case, however.  Instead, the fact that Petitioner’s therapy department “did *not*assess the Resident’s bed mobility, ambulation, or ‘transfers’ at the time” (P. Post-hrg. Br. at 11 (emphasis in original)), reinforces the conclusion that Resident 1’s care plan was deficient because it did not account for the resident’s ability, at times, to transfer without a mechanical lift of any kind.

Moreover, if as Petitioner contends, Resident 1’s care plan permitted staff to choose either the Hoyer or the Sabina lift for transfers, the care plan nevertheless failed to account for Resident 1’s known behavior of placing his knees on the lower leg support of the Sabina lift.  *See*CMS Ex. 6 at 23; CMS Ex. 8 at 7-10.  Several of Petitioner’s nurses and therapists agreed that, if a resident lifts their feet off the foot plate and places their knees on the knee rest when using the Sabina lift, the resident should be referred to therapy to be reassessed for a safer method of transfer.  CMS Ex. 8 at 6, 15, 19-20, 28-29.  Yet, as far as the record reveals, from January to September 2019, Petitioner’s staff did not refer Resident 1 to the therapy department to be reassessed, nor did they revise any intervention in Resident 1’s care plan related to his ability to ambulate or to transfer.  *See id.*at 19-21; *see also*P. Post-hrg. Br. at 11.  Thus, while I agree with Petitioner that the regulation does not require facilities to specify a particular lift in a resident’s care plan, the regulation does require the care plan to the describe the services to be furnished to maintain or attain a resident’s highest practicable well-being. Here, Resident 1’s care plan did not accurately describe how Resident 1 should be transferred, whether by mechanical lift (Hoyer or Sabina) or by stand and pivot.

In sum, Petitioner’s failure to describe accurately, in Resident 1’s care plan, Resident 1’s transfer status led Petitioner’s staff to transfer the resident inappropriately.  42 C.F.R. § 483.21(b)(1).  “**The purpose of the care planning requirement is to ensure that a**

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**resident receives the *services essential to meet his assessed needs* and to help the resident achieve or maintain his ‘highest practicable’ level of well-being.**”  *Park Manor Nursing Home*, DAB No. 2005 (2005 WL 3753088 at *21) (emphasis added) (citing Act § 1819(b)(2)).  Here, Resident 1’s care plan did not describe the services necessary to ensure that “[a] resident with limited mobility receives appropriate services, equipment, and assistance to maintain or improve mobility” and “adequate supervision and assistance devices to prevent accidents.”  42 C.F.R. §§ 483.25(c)(3), (d)(2).  I find that Petitioner’s failure to comply with the regulation had the potential to cause more than minimal harm. 10  Accordingly, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.21(b)(1).

***c. Petitioner’s remaining arguments lack merit.***

In addition to Petitioner’s main argument, Petitioner advances two ancillary arguments which it claims support that, even assuming CMS’s factual allegations regarding Resident 1’s care plan are true, CMS’s deficiency citations are legally flawed.  First, Petitioner argues that “several ALJs have held, and the Board at least has suggested, that unless CMS ‘explicitly overrules’ an [IIDR] recommendation or decision favorable to a petitioner and provides an explanation for that action, a citation set aside at [IIDR] cannot form the basis for an enforcement remedy as a matter of fact or law.”  P. Post-hrg. Br. at 4 n.2.  Second, Petitioner contends that “CMS points to no evidence that it ever provided notice to Petitioner that it might impose sanctions . . . [based on] . . . a single Surveyor’s ad hoc personal opinion about the degree of specificity, and the specific content, of a care plan”.  P. Reply at 4.  Neither of these arguments has merit.

First, Petitioner offers no evidence to support its contention that IIDR resulted in a finding or recommendation favorable to Petitioner.  Petitioner asserts, without citation to evidence, that “the Massachusetts IIDR Committee recommended that both [deficiency] citations be reduced in severity to ‘potential for harm.’”  P. Post-hrg. Br. at 3-4.  Petitioner does not contend that the IIDR Committee recommended deleting the deficiencies.  *Id.* Further, Petitioner concedes that the state agency rejected the IIDR recommendation to lower the scope and severity of the cited deficiencies.  *Id.*at 4.  Thus, at most, any “favorable” IIDR recommendation (if one existed) would relate solely to the scope and severity of the deficiencies.  However, the “level of noncompliance found by CMS” is not an “initial determination” reviewable by an administrative law judge unless “a successful challenge on this issue would affect . . . [t]he range of civil money penalty amounts CMS could collect.”  42 C.F.R. § 498.3(b)(14).  Because the CMP amount

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imposed here falls in the lower range, even if the IIDR committee had recommended lowering the scope and severity, I would lack authority to address the issue in my decision.

Second, Petitioner’s complaint that CMS failed to provide notice of the standard to which Petitioner would be held is equally unavailing.  Petitioner cites *Kisor v. Wilkie,* 588 U.S. __, 139 S. Ct. 2400 (2019) and *Azar v. Allina Health Servs.*, 588 U.S. __, 139 S. Ct. 1804 (2019) in support of its argument.  P. Reply at 5-6.  In *Kisor*, the Supreme Court upheld *Auer* (*Auer v. Robbins*, 519 U.S. 452 (1997))deference to agency interpretations of their regulations but with new parameters.  139 S. Ct. at 2404.  *Kisor* applies only to the federal courts and does not apply to administrative adjudication.  In the *Allina*decision, “the Supreme Court held that the Medicare statute’s notice-and-comment requirements extend in some circumstances to informal statements of policy and interpretive rules.”  *Pa. Physicians, P.C.,* DAB No. 2980 at 11 n.10 (2019) (citing *Allina,*139 S. Ct. at 1810-13, 1817).  *Allina*is inapposite because, contrary to Petitioner’s argument, CMS did not determine that Petitioner failed to comply with Surveyor Tomes’ opinion about the content of a care plan.  CMS cited Petitioner for failing to comply with 42 C.F.R. § 483.21(b)(1)(i) because Petitioner failed to describe, in Resident 1’s care plan, the services required to maintain or attain Resident 1’s highest practicable well-being, as required under section 1819 of the Act and sections 483.24, 483.25, and 483.404 of the regulations.  Inasmuch as the regulations ‒ not to mention the Social Security Act ‒ plainly set forth the services that must be described in a resident’s care plan, Petitioner had sufficient notice of the substantive requirements which must be met.  *See*Act § 1819(b)(2) (42 U.S.C. § 1395i-3(b)(2));42 C.F.R. §§ 483.21(b), 483.24, 483.25, 483.404.

I next explain why I conclude that many of the same circumstances that support a finding of substantial noncompliance with 42 C.F.R. § 483.21(b)(1)(i) also support that Petitioner failed to comply substantially with 42 C.F.R. § 483.25(d)(1), (2).

***Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2) (Tag F689) because Petitioner failed to ensure that Resident 1’s environment was as free of accident hazards as possible and because Petitioner did not provide adequate supervision and assistance devices to safeguard Resident 1.***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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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 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 number of appellate decisions of the DAB hold that subsection 483.25(d)(1) requires 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)).11  Further, subsection 483.25(d)(2) requires that a facility 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*, DAB No. 2115 at 11(2007) (citing *Woodstock Care Ctr. v. Thompson*, 363 F.3d 583, 590 (6th Cir. 2003) (facility must take “all reasonable precautions against residents’ accidents”)).  “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)).  “The regulation speaks in terms of ensuring that what is ‘practicable’ and ‘possible’ to do is done.  What is thus required of facilities is not prescience but reason and professional judgment in assessing what can be done to make residents (*given their special needs*)

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safe[.] . . .”  *Golden Living Ctr. - Foley*, DAB No. 2510 at 9 (2013) (emphasis added) (citations omitted).

CMS found Petitioner out of compliance with 42 C.F.R. § 483.25(d)(1)-(2) following the incident that occurred on September 10, 2019, which caused or had the potential for causing more than minimal harm, i.e., the potential for causing the fractures Resident 1 sustained.12  CMS Post-hrg. Br. at 17; CMS Ex. 11.  CMS argues that Petitioner failed to comply with the regulation because Resident 1 “was transferred using a Sabina lift, which was contrary to his previously assessed needs” and because “the evidence establishes that Petitioner’s staff should have stopped the Sabina lift transfer on September 10, 2019 when Resident #1 was resistive and began positioning himself incorrectly on the lift.”  CMS Post-hrg. Br. at 17; CMS Br. at 20.  Petitioner asserts that it provided adequate supervision and assistive devices for Resident 1 and, accordingly, substantially complied with 42 C.F.R. § 483.25(d)(1), (2).  P. Br. at 12-18.  Petitioner contends that the use of a Sabina lift to transfer Resident 1 was adequate and that its staff properly conducted the transfer of Resident 1 via the Sabina lift.  *Id.*  Petitioner’s assertions are unpersuasive and unsupported by the evidence.  I find that Petitioner failed to comply with the requirements imposed by the regulation.

***a. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1) because Petitioner failed to ensure that Resident 1’s environment remained as free of accident hazards as is possible.***

CMS contends that Petitioner “did not ensure that Resident #1’s environment ‘remain[ed] as free of accident hazards as is possible . . . .”  CMS Post-hrg. Br. at 18 (citing 42 C.F.R § 483.25(d)(1)); CMS Br. at 16, 18.  On the other hand, Petitioner contends that its staff’s use of a Sabina lift to transfer Resident 1 was appropriate and posed no hazard or risk of harm.  P. Post-hrg. Br at 22.  It argues that CMS did not offer “evidence that the use of a ‘sit-to-stand’ lift – either routinely or in any specific instance – actually posed any hazard or risk of harm to this Resident (beyond that inherent in using any mechanical lift).”  *Id.*  Petitioner’s argument is unpersuasive.  Contrary to Petitioner’s argument, I find that the use of a Sabina lift was an accident hazard that posed a foreseeable risk of accidental

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harm to Resident 1, which Petitioner failed to identify and remove.  Thus, Petitioner was not in substantial compliance with the requirements of 42 C.F.R. § 483.25(d)(1).

Because Petitioner failed to revise Resident 1’s care plan to address his alleged ability to use the Sabina lift safely, the use of the Sabina lift represented an accident hazard since he was only assessed as safe for transfer by the Hoyer lift.  *See Good Shepherd*, DAB No. 2858 at 14 (unless a facility revises a resident’s care plan in accordance with a new assessment, it may be found out of compliance if it fails to implement the existing care plan).13  The addendum to the final accident investigation report stated that Petitioner “believe[d] that the injury that occurred may have been the result of the resident kneeling on the Sabina lift.”  CMS Ex. 6 at 3.  Petitioner knew that the kneeling behavior displayed by Resident 1 on a Sabina lift was improper, unsafe, and posed a risk of injury.  *See*CMS Ex. 8 at 6, 19-20.  Given the risks posed by the Sabina lift, Petitioner should have opted to use the Hoyer lift, for which Resident 1 had been assessed.  *See*CMS Ex. 11 (showing that a transfer via Hoyer lift eliminates the possibility of unsafe kneeling behavior because a transfer conducted via Hoyer lift does not require a resident to stand up to be transferred).

Based on the foregoing, I conclude that the use of a Sabina lift posed a foreseeable risk of accidental harm to Resident 1.  Despite this foreseeable risk of harm, Petitioner not only failed to identify the Sabina lift as an accident hazard and remove it from Resident 1’s environment, but also used the Sabina lift on more than one occasion for transferring Resident 1.  *See* CMS Ex. 6 at 6, 23.  The use of the Sabina lift posed a risk of more than minimal harm to Resident 1.  Thus, Petitioner was not in substantial compliance with the requirements of 42 C.F.R. § 483.25(d)(1).

Moreover, even if Resident 1’s care plan could be read as permitting the use of either the Hoyer or the Sabina lift, it was or should have been foreseeable to Petitioner’s staff that a resident with Resident 1’s conditions and with a history of kneeling on the Sabina lift’s lower leg support could have an accident during a transfer attempt.  CMS Ex. 6 at 3; CMS Ex. 8 at 7-10; P. Ex. 3 at 5.  Given that such an accident was foreseeable, Petitioner’s staff did not provide adequate supervision and assistive devices to prevent Resident 1 from experiencing an accident, as I discuss in the following section.

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***b. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(2)because Resident 1 did not receive adequate supervision and assistance devices to prevent accidents.***

CMS argues that Petitioner failed to comply substantially with 42 C.F.R. § 483.25(d)(2) on September 10, 2019, because staff used an inappropriate lift when transferring Resident 1 and persisted with the transfer although Resident 1 “began resisting and placing his knees and feet in an incorrect position on the lift.”  CMS Post-hrg. Br. at 18.  Petitioner argues that it complied with 42 C.F.R. § 483.25(d)(2).  It contends that Resident 1 received the adequate assistance device to prevent accidents and that Resident 1 received adequate supervision that met his needs and mitigated foreseeable risks of harm from accidents.  *See*P. Post-hrg. Br. at 14-16.  I agree with CMS and find Petitioner’s arguments without merit.  Thus, I conclude that Petitioner was not in substantial compliance with the requirements of 42 C.F.R. § 483.25(d)(2).

Petitioner’s argument that the Sabina lift was adequate to meet Resident 1’s needs is premised on Petitioner’s reading of Resident 1’s care plan, which I have described above.  Briefly, Petitioner contends that the care plan permitted Petitioner’s nursing staff to select the type of lift to use to transfer Resident 1 on an ad hoc basis.  *See*P. Post-hrg. Br. at 14‐15, 22.  As I have explained, I do not agree with Petitioner’s reading of Resident 1’s care plan.  However, even if I accepted Petitioner’s interpretation as correct, I would not conclude that Petitioner’s use of the Sabina lift on September 10, 2019 was appropriate.  That is because, once Resident 1 began to kneel on the lower leg support, it was no longer appropriate to continue to transfer the resident using the Sabina.  *See, e.g.* ̧P. Ex. 3 at 3 (per Director Benevides, if a resident is not cooperative or does not use the lift properly, staff should back off, then try again, but “if unsuccessful, to try something else, including using a different lift” or not transferring the resident at all).

On September 10, 2019, Resident 1 never stood and never placed his feet on the foot plate of the Sabina.  CMS Ex. 8 at 17-18.  To use the Sabina lift properly, the resident must keep their feet on the foot plate at all times.  *Id.*at 28; *see also*CMS Ex. 6 at 52.  Therefore, the Sabina lift was not appropriate for Resident 1 on September 10, 2019, because on that day, he could not use the device properly.  Thus, I find that, on September 10, 2019, using a different assistive device, such as the Hoyer lift, that does not require a resident to stand up for transfers would have eliminated the foreseeable risk of harm posed by the Sabina lift in Resident 1’s case.  *See*CMS Ex. 11 at 1-2.  By failing to use the Hoyer lift on that occasion, Petitioner failed to take all reasonable steps to ensure that Resident 1 received an adequate assistance device that met his assessed needs.  Petitioner thereby failed to mitigate foreseeable risks of harm from accidents to Resident 1.

In addition to using an inappropriate assistive device for Resident 1, Petitioner’s staff also failed to provide adequate supervision to Resident 1 during the September 10 transfer.

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Petitioner’s argument that Resident 1 received adequate supervision is premised on its contention that CMS offered no evidence that “the way [Petitioner’s] staff described the procedure to the Surveyor actually was inappropriate in any way” and on its Director of Rehabilitation’s written direct testimony.14  P. Post-hrg. Br. at 6, 14-16.  However, Petitioner’s position is not supported by the record in this case.

Director Benevides stated in her written direct testimony that although she “did not personally see the transfer of the Resident on September 10, 2019, . . . [she] reviewed the record, including witness statements in the CMS exhibits.”  P. Ex. 3 at 5 (Benevides Decl.).  She concluded that from her review of the record, she “[saw] no indication . . . that the staff misused the Sabina lift, that the Resident fell, that his positioning caused any injury, or that [she could] infer any of [those] things from the records [she] reviewed.”  *Id.* at 6.  She opined that Petitioner’s staff “made appropriate judgments and safety decisions based on the needs of the Resident (and themselves)” and opined that Petitioner’s staff properly conducted Resident 1’s September 10, 2019 transfer.  *See id*. at 1, 6.

I accord little weight to this portion of Director Benevides’ testimony, however, because it is inconsistent with other portions of her testimony, with her prior statement to Surveyor Tomes, and with the statements of several of Petitioner’s other licensed staff.  First, as described above, Director Benevides testified that if a resident is unable to use the Sabina lift properly, staff should not continue with the transfer.  P. Ex. 3 at 3; *see also*CMS Ex. 8 at 15.  Similarly, PT Giurleo, the therapist who performed the October 2018 and June 2019 physical therapy assessments of Resident 1, informed Surveyor Tomes that a:

[Transfer] *should be stopped* if the res[ident] lifts their feet off the foot plate.  [T]hen staff should re-try or find another way to [transfer] the person.  *All I know is it would not be safe*

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*to continue*[.]  [C]an’t speak for what potential injuries may occur.  If behavior of lifting feet or kneeling on knee guard continued on more occasions, [she] would expect [patient] to be referred to [her] for eval[uation].

CMS Ex. 8 at 19-20 (emphasis added).  In addition to the physical therapist’s statements, Petitioner’s DON told Surveyor Tomes that “*staff should have stopped* [the transfer] when he lifted his feet” and also informed the surveyor that the DON “**would have expected staff would report that he was lifting his feet off the Sabina lift[,] and we would have had him reeval[uated] for safer [transfer.]**”  *Id.*at 6 (emphasis added).

Consistent with these statements, Surveyor Tomes testified at the hearing that it was inappropriate and unsafe for Petitioner’s staff to proceed with transferring Resident 1 on September 10.  Tr. at 88-90.  Surveyor Tomes testified that the transfer was not performed properly because “[the facility] knew [Resident 1] was not able to follow directions at that time, because [he] lifted his feet off the [foot] plate, and they pushed his feet down, they got him back onto the bed, and instead of aborting the transfer and trying it a different way, or getting someone else to come help and assess the situation, they attempted it again.”  *Id.* at 88.  I accord more weight to Surveyor Tomes’ testimony than to Director Benevides’ testimony because Surveyor Tomes’ testimony is consistent with the statements of Petitioner’s other staff members and with the manufacturer’s instructions for using the Sabina lift.  *See*CMS Ex. 6 at 52.

Petitioner does not meaningfully dispute that, on September 10, 2019, Resident 1 repeatedly placed his knees on the lower leg support of the Sabina lift and did not place his feet on the foot plate.  Nevertheless, staff proceeded to transfer Resident 1 using the Sabina.  This was improper.  Once Resident 1 placed his knees on the lower leg support a second time, Petitioner’s staff should have stopped the transfer because it was unsafe.  CMS Ex. 8 at 6, 19-20.  The failure to follow this course of action represents inadequate supervision, supporting a finding of noncompliance with 42 C.F.R. § 483.25(d)(2), because it violated the standard of care and Petitioner’s own policies.15

Appellate decisions of the DAB have held 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) (citing *Life Care Ctr. of Bardstown*, DAB No. 2233 at 21-22 (2009)); *see also Sheridan Health Care Ctr.*, DAB No. 2178 at 32 (observing that a facility’s adoption of a resident care

Page 25

policy supports an inference that the policy was “necessary to attain or maintain resident well-being”).  In the present case, Petitioner’s “Mechanical Lift Use” policy required staff to “[f]ollow manufacturer guidelines and recommendations with respect to use of device.”  CMS Ex. 6 at 60.  Nevertheless, contrary to the manufacturer’s guidelines for using the Sabina lift, Petitioner’s staff used the Sabina to transfer Resident 1 on September 10, 2019, even though the resident did not keep his feet on the foot plate and, instead, placed his knees on the lower leg support.  *Cf.*CMS Ex. 6 at 52-53; *see also id.*at 55-56 (if resident is unable to “manage an active raising motion” Sabina may be used for passive lifting, but lower leg support and foot rest should be removed).

In summary, I conclude that Petitioner did not take all reasonable measures to provide Resident 1 the supervision and assistive devices he needed to keep him safe during the transfer on September 10, 2019.  Petitioner’s failure to transfer Resident 1 via the assessed mechanical lift (Hoyer lift) that met his needs; the failure to stop the transfer once Resident 1 displayed the dangerous behavior of kneeling on the lower leg support; and failure to implement its own mechanical lift policy put Resident 1 at risk for more than minimal harm.  Indeed, it was entirely foreseeable that Resident 1 might have an accident resulting in a serious injury, such as a hip fracture.  Thus, Petitioner was not in substantial compliance with the requirements of 42 C.F.R. § 483.25(d)(1), (2).

***4. The CMP imposed, $725 per day for 28 days, is reasonable in amount and duration.16***

I have concluded that Petitioner failed to comply substantially with 42 C.F.R. § 483.21(b)(1)(i) and 42 C.F.R. § 483.25(d)(1), (2).  I next explain why I conclude that the CMP imposed for Petitioner’s noncompliance is reasonable in amount and duration.

**Amount.**To determine whether the amount of a CMP is reasonable, I examine the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) 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

Page 26

resident care, comfort, or safety.  The absence of culpability is not a mitigating factor. The factors listed in section 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 that CMS imposed, the administrative law judge must sustain it. *Coquina Ctr.*, DAB No. 1860 (2002) (2002 WL 31985890 at *18).

The regulations specify that a per-day CMP will fall into one of two ranges of penalties. 42 C.F.R. §§ 488.408, 488.438.  CMS imposes a CMP in the upper range, $6,808 to $22,320 per day, for deficiencies that pose immediate jeopardy to a facility’s residents and, in some circumstances, for repeated deficiencies.  42 C.F.R. § 488.438(a)(1)(i), (d)(2); 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).  CMS imposes a CMP in the lower range, $112 to $6,695 per day, for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii); 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).  In assessing the reasonableness of a CMP amount, an administrative law judge considers the per day amount, rather than the total accrued CMP.  *See Kenton Healthcare, LLC*, DAB No. 2186 at 28 (2008).  The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the administrative law judge, requiring only that the regulatory factors at sections 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2); 498.3(d)(11); *see also*42 C.F.R. § 488.438(e)(2), (3); *Alexandria Place*, DAB No. 2245 at 27 (2009); *Kenton Healthcare,*DAB No. 2186 at 28-29.

Petitioner did not assert that its financial condition or its compliance history justifies a reduction of the CMP amount.  Therefore, I need not consider these factors.  However, Petitioner posits that 42 C.F.R. §§ 488.438(e) and 488.404 permit an administrative law judge to review the level of noncompliance for CMP purposes.  P. Post-hrg. Br. at 24; P. Reply at 15.  With respect to the scope and severity of the deficiencies, Petitioner unpersuasively suggests that I should find that there was no causal relationship between any noncompliance and the injury Resident 1 suffered.  P. Post-hrg. Br. at 22, 24.  Even though Petitioner claims it is not challenging the level of noncompliance, Petitioner’s argument regarding the CMP is a backdoor challenge to CMS’s determination of the scope and severity of the deficiencies in this case.  The regulations do not authorize administrative law judge review of that issue, however.  42 C.F.R. § 498.3(b)(14), (d)(10); *see also*P. Post-hrg. Br. at 4 n.3 (conceding that the regulatory exceptions are not applicable in this case).

Moreover, even if the scope and severity of the deficiencies were reduced from “actual harm” to “the potential for causing more than minimal harm,” I would not conclude that the CMP amount is unreasonable.  The CMP amount imposed in this case, $725 per day,

Page 27

is near the low end of the range for non-immediate jeopardy noncompliance.  Thus, it is unnecessary (in addition to being beyond the permissible scope of my review) to decide that Resident 1 sustained actual harm to support the relatively modest CMP at issue.  Rather, a finding that Resident 1 was at risk for more than minimal harm is more than sufficient to sustain the CMP.

I have no difficulty concluding that Petitioner’s failure to develop and maintain a care plan that adequately described the care and services required to attain or maintain Resident 1’s highest level of well-being and its failure to provide adequate assistive devices and supervision to safeguard Resident 1 from accidents posed the risk of more than minimal harm to the resident.  This is so regardless of whether the use of the Sabina lift to transfer Resident 1 on September 10, 2019 was in fact the cause of the hip fractures he sustained.  Resident 1’s medical history of osteopenia and osteoporosis put him at risk for pathological fractures.  P. Ex. 6 at 3.  While transferring any elderly resident improperly could put them at risk for falls which could result in fractures, this risk would be more acute for Resident 1, who was at risk for fractures even in the absence of unusual trauma.  *See id.* I therefore find that the seriousness of the deficiencies is a factor that supports the CMP amount.

The record also demonstrates that Petitioner was culpable.  Under the regulation, culpability includes neglect or indifference.  42 C.F.R. § 488.438(f)(4).  Here, Petitioner failed, initially and after Resident 1’s condition changed, to describe in Resident 1’s care plan how the resident should be transferred; used the Sabina lift to transfer Resident 1 even after the resident displayed unsafe kneeling behavior; and failed to stop the transfer when he did so.  As such, Petitioner did not provide adequate supervision and assistive devices to prevent accidents.  Petitioner’s actions are evidence of neglect or indifference to Resident 1’s needs.

Based on the factors discussed above, I find that the CMP near the low end of the range for non-immediate jeopardy noncompliance is more than reasonable.

**Duration:**Petitioner specifically challenges the reasonableness of the proposed duration of the CMP.  Petitioner asserts that “CMS issued two Notices that imposed ‘per diem’ CMPs for two different periods, but neither Notice tied the duration of either CMP to any or all of the specific allegations of noncompliance . . . .”  P. Reply at 15.  Petitioner argues that the “lack of specificity pushes well into due process territory.”  P. Post-hrg. Br. at 25.  Petitioner's argument is without merit.

Petitioner overlooks the regulatory language that permits CMS to start the accrual of the CMP “*as early as the date* that the facility was first out of compliance, as determined by CMS or the State.”  42 C.F.R. § 488.440(a) (emphasis added).  An appellate decision of the DAB has explained that:

Page 28

CMS is not under any compulsion to explain why it decides not to impose remedies on days for which it might do so. From the provision that remedies may be imposed as early as the first day of noncompliance, it follows that CMS may choose to begin any remedy at a later date.  In either case, the remedy ends no sooner than the point at which the facility achieves substantial compliance or is terminated from the program.  We see nothing impermissible in beginning the CMP accrual period from the day on which a survey determined that the facility was not in substantial compliance, even if events evidencing that noncompliance occurred prior to the survey.

*Regency Gardens Nursing Ctr.*, DAB No. 1858 (2002) (2002 WL 31906290 *7).

Although the October 2018 physical therapy assessment, the November 2018 care plan, and the September 10, 2019 transfer suggest that Petitioner may have been noncompliant prior to the October 15-16, 2019 survey, CMS is clearly authorized by the regulation to choose to begin the CMP later than the first day of noncompliance.17  Here, CMS initially determined that the duration of the imposed CMP was from October 15, 2019 to December 15, 2019, for a total period of 61 days, which ended a day before Petitioner achieved substantial compliance.  CMS Ex. 2 at 1-7.  By letter dated February 13, 2020, CMS notified Petitioner that due to a “significant delay in the release of the Statement of Deficiencies[,]” CMS had decided to reduce the “CMP accrual period by [33] days.”  CMS Ex. 2 at 7.  Thus, CMS imposed a CMP of $725 per day for 28 days, “beginning November 18, 2019 and ending December 15, 2019, totaling $20,300[.] . . .”  *Id.*  Both the initial duration and the revised duration of the CMP are within the period authorized by the regulation.  The revised duration of the CMP starts on a date within Petitioner’s noncompliance period and ends on December 15, 2019, prior to Petitioner’s achieving substantial compliance, which is authorized by 42 C.F.R. § 488.440(a), (b).  There is nothing impermissible in the duration imposed by CMS.

As I have already concluded, on the day of the survey, Petitioner remained out of compliance with the requirement to provide adequate supervision and assistance devices to prevent the foreseeable risk of injury to Resident 1.  Petitioner was out of compliance with Medicare participation requirements at the non-immediate jeopardy level.  CMS found that Petitioner returned to substantial compliance with Medicare participation

Page 29

requirements effective December 16, 2019.  CMS Ex. 2 at 1. Further, Petitioner presented no evidence that, should I find it noncompliant, it returned to substantial compliance prior to December 16, 2019.  Accordingly, I conclude that the duration of the proposed CMP is reasonable.

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 participation requirements at 42 C.F.R. §§ 483.21(b)(1) (Tag F656) and 483.25(d)(1)-(2) (Tag F689).  I further find reasonable the CMP imposed for Petitioner’s noncompliance, $725 per day for 28 days.

Endnotes

1  CMS and state survey agencies consider the scope and severity of deficiencies when selecting enforcement remedies.  CMS summarizes the scope and severity levels in a matrix published in the State Operations Manual (SOM).  CMS Internet Only Manual 100-07, chapter 7, section 7400.3.1, available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07pdf.pdf (last visited July 14, 2023).  “Scope” describes how many residents are potentially affected by a particular deficiency.  Deficiencies may be “isolated,” “pattern,” or “widespread” in scope.  “Severity” describes the possible harm that a deficiency may cause.  A scope and severity level of A, B, or C describes a deficiency that causes no actual harm with the potential for minimal harm.  Facilities cited with deficiencies at level C or lower remain in substantial compliance.  42 C.F.R. § 488.301.  A scope and severity level of D, E, or F describes a deficiency that has caused no actual harm with the potential for more than minimal harm that is not immediate jeopardy.  A scope and severity level of G, H, or I describe a deficiency that has caused actual harm that is not immediate jeopardy.  Scope and severity levels J, K, and L describe deficiencies that pose immediate jeopardy to resident health or safety.

2  When citing the transcript, I refer to the page numbers printed at the upper right corner of the transcript pages and not to the PDF page numbers.

3  My conclusions of law appear as headings and subheadings in bold italic type.  My findings of fact appear in the supporting text.

4  According to the physical therapy assessment, Resident 1 had been “seated in a full sized Broda chair” and was evaluated using a “padded geri recliner.”  CMS Ex. 4 at 15, 16.  The Broda chair and the geri-chair are different types of rolling recliners that allowed Resident 1 to be out of bed and “attend activities with peers and family.”  *Id.*at 16; *see also*P. Post-Hrg. Br. at 11.

5  A fracture of the acetabulum is a fracture of “the socket of the ball-and-socket hip joint.”  CMS Ex. 11 at 21-26.  These fractures are uncommon, but they occur “[i]n older patients with osteoporosis.”  CMS Ex. 11 at 22. “[L]ow-energy injuries such as falls from standing height prompt the fracture.”  CMS Ex. 11 at 22; *see* *id*. at 4-14.

6  The report of Petitioner’s investigation stated that, in response to Resident 1 kneeling on the lower leg support, one of its licensed nurses “assisted the resident to lower his legs.” CMS Ex. 6 at 6. However, in interviews, one of the CNAs stated that staff “pushed his lower legs down.” CMS Ex. 8 at 7.

7  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, 68,828 (Oct. 4, 2016).  Prior to 2016, the content of subsection 483.21(b)(1) was codified at subsection 483.20(k)(1).  The *Park Manor*and *Sheridan* decisions cited in this paragraph interpreted 42 C.F.R. § 483.20(k)(1).  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. § 483.20(k)(1) was recodified as 42 C.F.R. § 483.21(b)(1).

8  There is some authority for the proposition that a therapy assessment can sometimes function as a care plan, even if not entered in a resident’s comprehensive care plan.  *Good Shepherd Home for the Aged, Inc. d/b/a The Good Shepherd Home*, DAB No. 2858 at 13‐14 (2018).  Read that way, Resident 1’s care plan at all relevant times required him to be transferred using the Hoyer lift.

9  My conclusion that the term “(SPECIFY)” in the care plan represents a prompt to staff to enter information finds further support elsewhere in the care plan.  The intervention for mobility states that “[Resident 1] requires (SPECIFY what assistance) by (x) staff to turn and reposition in bed (SPECIFY [frequency]) and as necessary.”  CMS Ex. 4 at 20.  I infer from the use of “(SPECIFY [frequency])” in the bed mobility intervention that a time, such as “every two hours” should have been filled in.  Otherwise, the phrase “as necessary,” which follows the term “(SPECIFY [frequency]),” would be superfluous.

10  I need not find that Petitioner’s use of the Sabina lift to transfer Resident 1 caused the fractures with which the resident was diagnosed to decide that Petitioner failed to comply substantially with 42 C.F.R. § 483.21(b)(1).  It is sufficient that Petitioner’s actions had the potential for causing Resident 1 more than minimal harm.  *See*42 C.F.R. § 488.301 (definitions of “*Noncompliance*” and “*Substantial compliance*”).

11  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, 68,828 (Oct. 4, 2016).  Prior to 2016, 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 paragraph.  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 recodified as § 483.25(d)(1) and (2).

12  As noted previously, Resident 1 was diagnosed with bilateral acetabulum complex comminuted displaced fractures.  CMS Ex. 5 at 3.  Such fractures are known to occur “[i]n older patients with osteoporosis.”  CMS Ex. 11 at 22. “[L]ow-energy injuries such as falls from standing height prompt the fracture.”  CMS Ex. 11 at 22; *see* *id*. at 4.  Resident 1 was noted to have osteopenia and osteoarthritis (CMS Ex. 5 at 46, 72), and his treating physician noted that Resident 1 had a “significant medical history of hereditary spherocytosis, frontal lobe dementia[,] and protein-caloric malnutrition [‒] all known factors that significantly contribute to osteopenia, osteoporosis, and pathological fractures.”  P. Ex. 6 at 3.

13  Petitioner’s staff did revise Resident 1’s care plan to address other changes in his condition or needs.  *See, e.g.*,CMS Ex. 4 at 17, 19 (DNR status changed 2/12/2019; seating changed to geri chair 7/29/2019).

14  During the hearing, Petitioner’s counsel argued that CMS’s witness, Surveyor Tomes, offered a new theory supporting CMS’s finding of noncompliance, i.e., that “the facility staff failed to use the sit-to-stand lift appropriately, completed a transfer that they shouldn't have completed because they did it wrong as opposed to because they used the wrong lift.”  Tr. at 91-92.  Counsel is incorrect; the allegation that Petitioner’s staff did not use the Sabina lift correctly is not a new issue in this case.  The statement of deficiencies cited to subsection (d)(1) and (2) of section 483.25 and CMS’s pre-hearing brief explicitly argued that the transfer should have been stopped because Resident 1 lifted his feet from the footrest, but Petitioner’s staff “continued with the transfer.”  CMS Br. at 19-20 (stating that Petitioner failed to “conduct a safe transfer via Sabina lift.”).  Further, even if the issue were new, 42 C.F.R. § 498.56 permits an administrative law judge to add new issues provided that timely notice is given to the parties.  Based on CMS’s pre-hearing brief, Petitioner received timely notice of the issue.

15  For the same reasons explained in the prior section of this decision, I find it was foreseeable that Resident 1, with his vulnerable physical condition and known tendency to kneel on a Sabina lift’s lower leg support, would kneel on the Sabina lift’s lower leg support and that such kneeling behavior had the potential to injure him.

16  I am permitted, “in the interests of judicial economy,” to review “only those deficiencies that have a material impact on the outcome of the dispute.”  *Claiborne-Hughes Health Ctr. v. Sebelius*, 609 F.3d 839, 847 (6th Cir. 2010).  I conclude in the previous section and in this section that Petitioner’s noncompliance with 42 C.F.R. § 483.21(b)(1) (Tag F656) and 42 C.F.R. § 483.25(d)(1), (2) (Tag F689) suffices to establish Petitioner’s noncompliance with Medicare participation requirements and the reasonableness of the CMP imposed by CMS.  Therefore, Petitioner’s compliance (or not) with 42 C.F.R. § 483.25(b)(1)(i), (ii) (Tag F686), does not “have a material impact on the outcome” of this case.  Consequently, in the interest of judicial economy, I do not address Petitioner’s alleged noncompliance with 42 C.F.R. § 483.25(b)(1)(i), (ii).

17  Indeed, if I were to take Petitioner’s argument literally, I could well conclude that the CMP started accruing as of October or November **2018**, when Petitioner assessed Resident 1 as dependent for transfers but initiated a care plan intervention that did not accurately reflect the assessment.  I presume Petitioner would prefer to have the CMP accrue for a shorter duration.
  
          /s/
        Leslie A. Weyn

                      Administrative Law Judge Back to top
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