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                              San Pablo Healthcare & Wellness Center, DAB CR5728 (2020)
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San Pablo Healthcare & Wellness Center, DAB CR5728 (2020)








  
  
    

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





San Pablo Healthcare & Wellness Center
(CCN: 05-6359),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-18-352Decision No. CR5728September 30, 2020

        
              
    

      DECISION

A certified nursing assistant (CNA 1) employed by skilled nursing facility (SNF) San Pablo Healthcare & Wellness Center (Petitioner or facility) positioned a resident (Resident 1) to sit on her bed with her feet on the floor and then left Resident 1 to position a wheelchair so that Resident 1 could be transferred into it.  Petitioner assessed Resident 1 as a high fall risk, requiring two staff members to assist in transfers between surfaces, but in this transfer, only CNA 1 was involved.  Before CNA 1 could return to the resident, Resident 1 slid off the bed to the floor.  Four days later, Petitioner transferred Resident 1 to a hospital, at which time it was confirmed that Resident 1 had suffered a comminuted hip fracture.  Resident 1 underwent surgery to repair the injury.

Based on this situation, the Centers for Medicare & Medicaid Services (CMS) found that Petitioner was not in substantial compliance with the Medicare requirement for SNFs at 42 C.F.R. § 483.25(d) (accidents) and imposed on Petitioner an $11,605 per-instance civil monetary penalty (CMP).

Petitioner does not dispute that it assessed Resident 1 to be a high fall risk who was completely dependent on two staff members during bed-to-wheelchair transfers.  However, Petitioner disputes that Resident 1 fell while being “transferred.”  Therefore, Petitioner asserts that two staff members were not required to assist Resident 1 when

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Resident 1 fell.  Petitioner also disputes that the facility failed to properly supervise or monitor Resident 1, or identify Resident 1’s injury.  Accordingly, Petitioner disputes the finding of deficiency and the reasonableness of the CMP.

As I explain below, the record supports CMS’s contention that CNA 1 was engaging in a single-person assist transfer of Resident 1 from the bed to a wheelchair when Resident 1 fell.  Petitioner’s noncompliance, which resulted in a serious, foreseeable injury to Resident 1, justifies the finding of a deficiency and the imposition of the CMP.  Further, the record otherwise justifies the amount of the CMP imposed.  Therefore, I conclude that CMS appropriately determined that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) and the CMP imposed was reasonable.

I.  Legal Framework

The Medicare program “provides basic protection against the costs of . . . related post-hospital . . . care” for individuals over the age of 65 who are eligible for Social Security retirement benefits and for individuals under 65 who meet other criteria.  42 U.S.C. § 1395c.  Post-hospital care includes extended care services provided at an SNF.  42 U.S.C. §§ 1395f(a)(2)(B), 1395x(h)-(i).

For Medicare program purposes, an SNF is an institution that is primarily engaged in providing skilled nursing care and/or rehabilitation services for its residents, but is not primarily engaged in the care and treatment of mental diseases.  42 U.S.C. §§ 1395x(j), 1395i-3(a)(1).  Because an SNF is a “provider of services” in the Medicare program, each SNF that participates in the program must file a provider agreement with the Secretary of Health and Human Services (Secretary).  42 U.S.C. §§ 1395cc(a), 1395x(u).  Further, a participating SNF must meet a variety of ongoing requirements related to how it provides services, maintains the rights of its residents, and administers its facility.  42 U.S.C. § 1395i-3(a)(3), (b)-(d); 42 C.F.R. pt. 483, subpt. B.1

When an SNF fails to meet a statutory or regulatory participation requirement, then the SNF has a “deficiency.”  42 C.F.R. § 488.301; *see* 42 U.S.C. § 1395i-3(h)(1).  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301.  To maintain “substantial compliance,” an 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.

Broadly, noncompliance that subjects an SNF to enforcement remedies is divided into two levels.  One level is comprised of deficiencies that immediately jeopardize the health or safety of residents and the other level is composed of deficiencies that do not.

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42 U.S.C. § 1395i-3(h)(1).  “Immediate jeopardy” exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.

The Secretary contracts with state agencies to conduct surveys to determine whether SNFs are in substantial compliance.  42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10.  These surveys can be unannounced surveys that occur at least once every 15 months, or can be in response to a complaint.  42 U.S.C. § 1395i-3(g).  When the results of a survey show that an SNF is not in substantial compliance with program participation requirements, the Secretary may impose enforcement remedies on the SNF.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  When CMS selects an enforcement remedy to impose on an SNF, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.  *See* 42 C.F.R. § 488.404(a)-(b).

One such remedy is a CMP.  42 U.S.C. § 1395i-3(h)(2)(B)(ii).  CMS may impose a per‐instance CMP for each instance of the SNF’s noncompliance or a per‐day CMP for the number of days an SNF is not in substantial compliance.  42 U.S.C.  § 1395i‐3(h)(2)(A), (h)(2)(B)(ii)(I); 42 C.F.R. § 488.430(a).  For CMPs assessed on or after February 3, 2017, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows:  $2,097 to $20,965 for per-instance CMPs; $105 to $6,289 per day for less serious noncompliance; or $6,394 to $20,965 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3 (2017); 82 Fed. Reg. 9,174, 9,175, 9,182-83 (Feb. 3, 2017); *see* 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments).

If CMS imposes a CMP based on a noncompliance determination, then the SNF may request a hearing before an administrative law judge (ALJ) to challenge CMS’s determination of noncompliance that led to the imposition of an enforcement remedy and/or the level of noncompliance (if a successful challenge to the level would affect the range of CMP amounts imposed on the SNF).  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. §§ 554, 556.  Either the SNF or CMS may request Departmental Appeals Board (DAB) review of an ALJ’s decision.  42 C.F.R. § 498.80.

With regard to challenging the existence of a deficiency, CMS must make a prima facie case that the SNF failed to substantially comply with federal participation requirements and, if this occurs, the SNF must, in order to prevail, prove substantial compliance by a preponderance of the evidence.  *Hillman Rehab. Ctr.*, DAB No. 1611 at 8 (1997); *see* *Batavia Nursing & Convalescent Inn*, DAB No. 1911 (2004); *Batavia Nursing & Convalescent Ctr.*, DAB No. 1904 (2004), *aff’d*, *Batavia Nursing & Convalescent Ctr. v. Thompson*,129 F. App’x 181 (6th Cir. 2005); *Emerald Oaks*, DAB No. 1800 (2001).  If

Page 4

an SNF challenges CMS’s determination as to the level of noncompliance, CMS’s determination must be upheld unless it is clearly erroneous.  42 C.F.R. § 498.60(c)(2).

II.  Background and Procedural History

Petitioner is an SNF that operates in San Pablo, California.  In response to a complaint and a report of an incident at the facility, on September 27, 2017, surveyors from the California Department of Public Health (state agency) conducted a survey as to the specific allegations in the complaint and report.  CMS Exhibit (Ex.) 1 at 1.  The state agency subsequently issued a Statement of Deficiencies indicating the facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2) (Tag F323) (i.e., accident prevention and adequate supervision) at a scope and severity level of “G” (i.e., isolated deficiency constituting actual harm that is not immediate jeopardy).  CMS Ex. 1 at 1-3; CMS Ex. 3 at 1.  Due to this deficiency, on October 11, 2017, the state agency issued an initial determination imposing a denial of payment for new admissions (DPNA), effective December 27, 2017, if Petitioner failed to achieve substantial compliance by that date.  CMS Ex. 3.  Further, the state agency recommended that CMS impose a CMP and terminate Petitioner’s Medicare provider agreement by March 27, 2018, if Petitioner failed to achieve substantial compliance by that date.  CMS Ex. 3 at 3.

On October 16, 2017, CMS issued an initial determination adopting the state agency’s survey findings and DPNA.  CMS also imposed an $11,605 per-day CMP.  CMS Ex. 4 at 1-2.  CMS further stated that it would terminate Petitioner’s Medicare provider agreement no later than March 27, 2018, if Petitioner failed to return to substantial compliance.  CMS Ex. 4 at 2.  In a November 21, 2017 notice, CMS stated that the termination and DPNA would not be effectuated because the state agency confirmed, on November 15, 2017, that Petitioner returned to substantial compliance with Medicare participation requirements.  CMS Ex. 5 at 2.

Petitioner filed a timely request for hearing before an ALJ to dispute the October 16, 2017 initial determination, and the case was assigned to Judge Keith Sickendick to hear and decide.  Judge Sickendick issued an Acknowledgment and Prehearing Order (Prehearing Order) that established a prehearing exchange schedule for the parties.  In that order, Judge Sickendick directed the parties to file briefs, proposed exhibits, and permitted written direct testimony for all witnesses the parties wanted to present in this case.

In compliance with the Prehearing Order, CMS filed an exchange, including a prehearing brief (CMS Pre-hrg. Br.) and 20 proposed exhibits (CMS Exs. 1-20).  Petitioner then filed an exchange, including a prehearing brief (P. Pre-hrg. Br.) and seven proposed exhibits (P. Exs. 1-7), which included written direct testimony from two witnesses (P. Exs. 6-7).  Petitioner also filed a motion for summary disposition, which CMS opposed.  Petitioner

Page 5

objected to CMS Ex. 13 at 1-4, 6, 7-12, and 14, and CMS Ex. 19 at 29.  CMS did not object to any of Petitioner’s exhibits.

On May 21, 2018, the parties submitted a Joint Settlement Status Report, wherein both parties expressly waived the right to an oral hearing and requested a decision on the briefs.  Judge Sickendick then set a briefing schedule.  CMS filed an Opening Brief (CMS Opening Br.), including two proposed exhibits (CMS Exs. A-B), which included the written direct testimony of one witness (CMS Ex. A).  Petitioner then filed an Opening Brief (P. Opening Br.).  Both parties filed Reply Briefs (CMS Reply Br. and P. Reply Br.).

On November 20, 2018, the parties were notified that this case was transferred to me.  *See* 42 C.F.R. § 498.44(b).

III.  Decision on the Record and Evidentiary Rulings

Because both parties expressly waived the right to an oral hearing and requested a decision on the briefs, I issue this decision based on the written record.  42 C.F.R. § 498.66.

Petitioner objected to several of CMS’s proposed exhibits.  As a general rule, I must admit all relevant and material evidence into the record.  42 C.F.R. § 498.60(b)(1).

Petitioner argues that pages 1-3 and 9-13 of CMS Ex. 13—the hospital social worker’s report of an unwitnessed fall—constitute impermissible hearsay.  Petitioner’s Evidentiary Objections (P. Obj.) at 2-4.  I overrule the objection because the hearsay rule does not strictly apply in this proceeding.  42 C.F.R. § 498.61.  However, hearsay exhibits that appear unreliable may be given less weight.

Petitioner also argues that CMS Ex. 13 at 1-3 has no probative value because Resident 1’s fall is not in dispute.  P. Obj*.* at 1-2.  However, the mandated report of a nursing home resident’s fall is the complaint that led to the instant survey.  Therefore, I overrule Petitioner’s objection because the document is relevant due to its role in the history of this case.

Finally, Petitioner argues that some of CMS’s exhibits are duplicative.  First, Petitioner argues that CMS Ex. 13 at 4, 7- 8, and the bottom of page 6 are duplicative to CMS Ex. 19 at 6-8.  Next, Petitioner argues that CMS Ex. 13 at 14 is duplicative to CMS Ex. 6.  Last, Petitioner argues that CMS Ex. 19 at 23 is duplicative to CMS Ex. 15.  P. Obj. at 4-5.  Although “unduly repetitious evidence” should be excluded under 5 U.S.C. § 556(d), some minor duplicative documents do not rise to this standard.  Therefore, I overrule Petitioner’s objections and admit CMS Exs. 1-20, CMS Exs. A-B, and P. Exs. 1-7.

Page 6

IV.  Issues

1) Whether Petitioner failed to substantially comply with the requirements of 42 C.F.R. § 483.25(d) (Tag F323, relating to accident prevention and adequate supervision); and

2) If so, whether the CMP that CMS imposed is reasonable.

V.  Findings of Fact, Conclusions of Law, and Analysis

My findings of fact and conclusions of law are in bold and italics.

***1. The parties stipulated that:  Resident 1 was diagnosed with several conditions that limited Resident 1’s physical abilities; Petitioner assessed Resident 1 as a high fall risk, wheelchair dependent, needing extensive assistance with bed mobility, and requiring a two‐person assist when transferring between surfaces; on August 11, 2017, CNA 1 positioned Resident 1 upright in bed and Resident 1 fell from the bed to the floor; Petitioner’s staff assessed Resident 1 for injury, but did not transfer Resident 1 to a hospital until August 15, 2017, where Resident 1 was diagnosed with a left hip fracture.***

In compliance with the Prehearing Order, the parties filed a Joint Stipulation of Undisputed Facts (Jt. Stip.).  In relevant part, the parties stipulated that:

Resident 1 was admitted to the facility on March 20, 2013, with diagnoses that included cerebrovascular disease and contractures of the left hand, left elbow, and left knee.  Jt. Stip. ¶ 5.
	Resident 1 was assessed as a high fall risk, with intermittent confusion and wheelchair dependence.  Jt. Stip. ¶¶ 6-7.
	Resident 1 was initially assessed in March 2017, as having total dependence on staff for bed mobility, but later assessed in June 2017 as needing extensive assistance with bed mobility.  Jt. Stip. ¶¶ 9-10.
	Resident 1 was assessed in June 2017 as requiring a two‐person assist when transferring between surfaces.  Jt. Stip. ¶ 11.
	On August 11, 2017, CNA 1 asked CNA 2 for assistance with transferring Resident 1.  CNA 1 raised the head of Resident 1’s bed to an upright position, and sat Resident 1 up in bed.  Resident 1 fell from the bed to the floor.  CNA 1 was the only staff member in Resident 1’s room at the time of Resident 1’s fall.  Jt. Stip. ¶¶ 12-15.Page 7

Petitioner’s staff assessed Resident 1 for injury following her fall on August 11, but did not transfer her to the hospital until August 15, 2017, at which time she was diagnosed with a left hip fracture.  Jt. Stip. ¶¶ 16-20.***2. Resident 1 fell during the initial stages of a transfer from her bed to a wheelchair, with only one staff member (CNA 1) present to assist.***

Resident 1 was an 88-year-old woman when she was admitted to the facility in March 2013.  CMS Ex. 13 at 11; CMS Ex. 19 at 4; P. Ex. 6 ¶ 11.  Her diagnoses included stroke, left side paralysis or hemiparesis, contractures in her left hand, elbow, and knee, muscle weakness, and Alzheimer’s disease.  CMS Ex. 13 at 11; CMS Ex. 19 at 4.

Petitioner’s March and June 2017 Minimum Data Set (MDS) evaluations for Resident 1 indicated that one staff member was needed to assist Resident 1 with bedside mobility, but that two staff members were needed to assist Resident 1 with transfers between surfaces (e.g., to or from bed, chair, wheelchair).  Jt. Stip. ¶¶ 7, 10-11; CMS Ex. 1 at 3; CMS Ex. 7; P. Ex. 3 at 1; P. Ex. 6 ¶¶ 12, 14.  Consistent with this, Petitioner’s June 2017 Fall Risk Assessment showed that Resident 1 was at a high risk of falls due in part to intermittent confusion and wheelchair dependence.  Jt. Stip. ¶¶ 6-7; CMS Ex. 9.  Although Petitioner clearly decided that assistance with mobility and transfers was a reasonable intervention calculated to manage, if not eliminate, the foreseeable risk that movement between surfaces and positions posed to Resident 1, Resident 1’s care plan, established on March 13, 2017, did not include any requirements regarding the number of people needed to assist Resident 1 with bed mobility or transfers.  The care plan only indicated that “[r]isk for fall will be minimized through intervention,” without specifying which intervention(s) will be taken.  CMS Ex. 8 at 4.

On August 11, 2017, CNA 1 was assigned to assist Resident 1, and CNA 1 bathed and dressed Resident 1.  CMS Ex. 12.  CNA 1 described what happened next in an October 25, 2017 statement she drafted:

When resident [1] was fully dressed lying flat in bed[,] I then went for help to transfer the resident like I had done previously . . . .  I asked a cna on the floor for help[.]  She told me that she would come right away after she finished her task.  **I returned to resident [1] as I proceeded to set her up for the two person transfer.  I did this by raising the head of the bed and moving her legs out of the bed.  The bed was at a 90o angle and her buttocks was [sic] firmly planted on the bed.  I then went to reach for the wheelchair to bring the wheelchair closer to the resident.** When I had transferred her in the past[,] she had enough

Page 8

strength to sit up and showed no signs that she would do harm to herself.  The wheelchair was at the foot of the bed near the closet door.  During this process[,] that is when I saw resident [1] sliding or falling to the floor.  Lastly I rushed to her side to assist her in the fall for safety.  I tried to grab and assist resident [1] from hitting the ground.  Her back was positioned against my lap and I tried to protect her head as well.

CMS Ex. 12.  CNA 1’s brief August 22, 2017 statement is mostly consistent with the October statement quoted above.  It corroborated that Resident 1’s legs were no longer in the bed when “[CNA 1] went to grab wheelchair to [b]ring it closer [which is] when [CNA 1] noticed patient was already in motion of falling.”  P. Ex. 1.

State agency surveyor Jennifer Morris, RN, stated, under penalty of perjury, that she interviewed CNA 1 on August 29, 2017, and that CNA 1 admitted that “she was in the process of transferring Resident 1 from her bed to the wheelchair when she fell.”  CMS Ex. A ¶ 10.  Further, “CNA 1 also stated that she worked with Resident 1 before, and that she was ‘able to transfer the resident.’”  CMS Ex. A ¶ 10.  Consistent with CNA 1’s statement above, Ms. Morris recounted that CNA 1 said:  “While Resident 1 was sitting upright on the edge of her bed, CNA 1 went to grab a wheelchair for Resident 1.  During this time, Resident 1 fell.”  CMS Ex. A ¶ 10 (citation omitted).

CNA 2 corroborated that “Resident 1 often required two people to assist in transfers from the bed to her wheelchair” and that CNA 1 had requested assistance from CNA 2, but CNA 2 could not immediately come and assist.  P. Ex. 7 ¶¶ 6, 8-9.

Petitioner’s assistant director of nursing (ADON) testified about Petitioner’s Transfer Policy.  P. Ex. 6 ¶¶ 16-20.  She testified that the Transfer Policy instructs on preparing for transfers by situating residents in a seated position in bed, and that “[t]he transfer begins when the resident begins to stand.”  P. Ex. 6 ¶ 19.  The ADON specified “a two person assist with transfer would only require the second staff member to assist after step III, Preparing for Transfer from Bed, is completed.”  P. Ex. 6 ¶ 20.

Applying the Transfer Policy as explained by the ADON, I find that Resident 1 fell during the initial stages of a transfer from bed to a wheelchair, with only one staff member present, rather than during the transfer preparatory stage.  As the ADON noted, Petitioner’s Transfer Policy differentiates between preparing to transfer a resident and transferring a resident.  P. Ex. 4 at 1-2.  Section III of the Transfer Policy, entitled Preparing to Transfer from Bed, states that the last two preparatory steps include:  1) having the resident lower his or her legs down over the side of the bed to the floor; and 2) having the resident secure his/her balance before proceeding.  P. Ex. 4 at 1-2.  As CNA 1 described in detail, she performed those tasks while awaiting CNA 2 to assist in the transfer.

Page 9

However, CNA 1 admitted that she did not stop with securing Resident 1 in the seated position on her bed.  Instead, CNA 1 left Resident 1 to position the wheelchair near Resident 1.  Contrary to the ADON’s testimony, Section IV of the Transfer Policy related to two person transfers states that the second step in the transfer process is “[p]lac[ing] the resident’s wheelchair at a slight angle next to the bed.”  P. Ex. 4 at 2; *see also* P. Ex. 4 at 3 (step one of an independent sliding board transfer is placing the chair at a slight angle to the bed).  Therefore, I find that according to Petitioner’s Transfer Policy, the positioning of the wheelchair is part of the transfer stage and not the preparation stage for transferring.  Contrary to the ADON’s testimony, the transfer process does not begin when a resident starts to stand.  *See* P. Ex. 4 at 1-4.  This interpretation of the Transfer Policy was corroborated by Petitioner’s head of nursing, who reported to the hospital physician that Resident 1 “slipped during a transfer.”  CMS Ex. 19 at 6.  This interpretation is also corroborated by the fact that, had CNA 1 not moved on from the preparatory stage to the transfer stage, Resident 1 would not have fallen because CNA 1 would have been there to stop her.  *See* CMS Ex. A. ¶ 13.

Therefore, based on the evidence of record, I find that Resident 1 fell while CNA 1 was transferring Resident 1 from the bed to a wheel chair, as described in the Transfer Policy.

***3. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) (Tag F323) because it did not take all reasonable steps to provide the supervision and assistance devices necessary to prevent a foreseeable accident, and as a result, Resident 1 was injured when she fell while being transferred from her bed to her wheelchair.***

Medicare program requirements for SNFs include 42 C.F.R. § 483.25, which states that quality of care “is a fundamental principle that applies to all treatment and care provided to facility residents” and that a 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:

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

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

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

The quality of care regulation 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

Page 10

the risk of accident to the extent possible.” 2
  *Maine Veterans’ Home - Scarborough*, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care with respect to preventing accidents).  The provisions of section 483.25(d) “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).  The quality of care regulation 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 Nursing Ctr.*, DAB No. 2115 at 5 (2007), citing *Woodstock Care Ctr. v. Thompson*, 363 F.3d 583, 590 (6th Cir. 2003) (the facility must take “all reasonable precautions against residents’ accidents.”), *aff’g, Woodstock Care Ctr.*, DAB No. 1726 (2000).  Although 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).

***A. Petitioner failed to ensure Resident 1’s care plan included the requirement of a two-person transfer***

It was foreseeable that Resident 1 would fall if left unsupervised.  Resident 1 was identified as a high fall risk.  Jt. Stip. ¶¶ 6-7; CMS Ex. 9.  Petitioner determined that one staff member assisting Resident 1 with bedside mobility and two staff members assisting Resident 1 with transfers was necessary to mitigate Resident 1’s risk of falls.  Jt. Stip. ¶¶ 7, 10-11; CMS Ex. 1 at 3; CMS Ex. 8 at 4; CMS Ex. 9 at 1; P. Ex. 3 at 1.

The June 16, 2017 MDS specifically noted that Resident 1 was assessed as a “3” in self-performance for bed mobility in the previous seven-day period, which required staff to provide weight-bearing support to the resident.  Resident 1 was assessed as a “2” for bed mobility support, which required a one person physical assist.  Resident 1 was assessed as a “4” in self-performance for transfer, which required total dependence on staff.  Resident 1 was assessed as a “3” for transfer support, which was a “**two+** persons physical assist.”  P. Ex. 3 at 1 (emphasis in the original).

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Despite being identified as a high fall risk and the one-person mobility assist and two‐person transfer assist requirements, these supervision and assistance requirements were not included in Resident 1’s care plans.  Resident 1’s March 13, 2017 care plan did not include any requirements regarding the number of people required to assist Resident 1 with bed mobility or transfers.  The care plan only indicated that “[r]isk for fall will be minimized through intervention,” without specifying which intervention(s) will be taken.  CMS Ex. 8 at 4.  Further, Resident 1’s care plan was not revised following the June 16, 2017 MDS reassessment.  CMS Ex. 8 at 2-3; P. Ex. 3 at 1-3.  Resident 1’s care plan was not revised until after she fell on August 11.  CMS Ex. 8 at 2-3.  Despite the fall, the revised care plan did not identify Resident 1 as a fall risk or that she had an actual fall, and it did not include steps taken to address Resident 1’s fall risk.  CMS Ex. 8 at 2-3.

The DAB upheld a finding of non-compliance under 42 C.F.R. § 483.25(d) where a resident’s care plan did not reflect her supervision needs as noted in an MDS or other comprehensive assessment.  *Buena Vista Care Ctr.*, DAB No. 2498 (2013).  Tag F323 does not specifically discuss care planning.  However, section 483.25 “effectively incorporates the more specific regulatory requirements for assessments and individualized care plans by requiring . . . that a facility provide each resident the necessary care or services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.”  *Id.* at 15-16 (internal quotations and emphasis omitted) (citing *Azalea Court*, DAB No. 2352 at 12 (2010), *aff’d*, *Azalea Court v. U.S. Dep’t of Health & Human Servs.*, 482 F. App’x 460 (11th Cir. 2012)).  Importantly, the lack of any other incidents does not excuse the facility’s “failure to address a risk to the resident” that the facility itself identified as present during an MDS or other comprehensive assessment.  *Id.* at 16.

Petitioner cites *Parkview Nursing & Rehab. Ctr.*, DAB No. CR2353 (2011), in support of its argument that although Resident 1’s care plan is missing the two-person transfer intervention, the rest of her record clearly documents the need for the specific intervention.  P. Opening Br. at 8-9.  Although it was well-known among Petitioner’s staff that Resident 1 required a two-person assist, Resident 1’s records do not indicate that staff consistently applied the two-person transfer intervention.  For example, Resident 1’s care plan was revised on March 16, 2017, to specifically include her risk for falling and history of falls.  CMS Ex. 1 at 3.  CNA 2’s declaration specifically indicates, “[i]t was known to me and other direct care staff that Resident 1 *often* required two people to assist in transfers from the bed to her wheelchair.”  P. Ex. 7 ¶ 6 (emphasis supplied).  The ADON’s testimony does nothing to dissuade me from this interpretation of CNA 2’s testimony.  The ADON testified that the MDS assessment only indicates the highest level of care that a resident needed recently and “a resident’s need for assistance may vary from day to day or over the course of the same day.”  P. Ex. 6 ¶ 15.  This hardly conveys a sense that Petitioner’s management staff ensured that Resident 1 was receiving a two-person assist when transferring between bed and wheelchair.

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Petitioner argues that based on Resident 1’s MDS, the staff had no indication that she could fall while seated upright in bed.  P. Reply Br. at 4.  Resident 1 had “showed no signs that she would do harm to herself” when CNA 1 transferred her on multiple prior occasions.  P. Reply Br. at 4 (citing CMS Ex. 12 at 1).  However, this argument merely illustrates the need to specifically include the two-person transfer requirement in Resident 1’s care plan after it was identified as necessary in her MDS.  Revising Resident 1’s care plan to include a required two-person assist would have given further notice to all of Petitioner’s staff of this need as identified in Resident 1’s MDS.  CMS Ex. A ¶ 13 (“The care plan is the document that staff members rely on when providing care to residents, and so it should be as accurate as possible, so that staff members know how to provide the care that residents need.  [Petitioner’s] failures resulted in Resident 1 falling and severely fracturing her left hip.”).  Revising the care plan would likely have ensured that Resident 1 received the necessary supervision/assistance to prevent accidents to the highest practicable degree in accordance with 42 C.F.R. § 483.25(d).

***B. Petitioner failed to provide supervision that would have reduced known or foreseeable accident risks.***

Petitioner was required to provide supervision for residents to avoid accidents.

Petitioner argues that Resident 1 did not require assistance to sit upright in bed.  P. Opening Br. at 2.  However, a resident sitting upright *in bed* with the back of the bed raised is not the same as sitting *at bedside* with the resident’s legs out of bed and feet on the floor.  Resident 1 was a high fall risk due to her history of stroke, left side paralysis or hemiparesis, contractures in her left hand, elbow, and knee, muscle weakness, Alzheimer’s disease, intermittent confusion, and wheelchair dependence.  CMS Ex. 1 at 2-3; CMS Ex. 13 at 11; CMS Ex. 19 at 4; Jt. Stip. ¶¶ 6-7.  CNA 1 moved beyond raising the head of Resident 1’s bed to have her sitting upright with support.  CNA 1 had Resident 1 sit up at her bedside and CNA 1 moved her legs out of the bed so that she was sitting at a 90 degree angle with the bed.  CMS Ex. 12.  CNA 1 then turned away from Resident 1, leaving her sitting at her bedside without physical back support.  CMS Ex. 12; CMS Ex. 1 at 3-4; P. Ex. 1.  Resident 1 was not sitting upright in bed.  She was sitting at her bedside, and required assistance.

Petitioner cites *Burton Health Care Ctr.*, DAB No. 2051 (2006), to support its argument that CNA 1’s action in turning away from Resident 1 does not establish a finding of inadequate supervision.  P. Pre-hrg. Br. at 10-11.  This matter is distinguishable from *Burton* for several reasons.  In this case, CNA 1 was not providing one-to-one supervision of Resident 1 while she was in the same room.  CNA 1 left Resident 1, who was a high fall risk with a history of left-sided hemiparesis, muscle weakness, and Alzheimer’s disease, unattended while sitting at the side of her bed with her legs out of the bed and her feet on the floor.  CNA 1 left Resident 1 to retrieve and position a wheelchair.  CNA 1 should have waited for CNA 2 to enter the room before leaving

Page 13

Resident 1, and CNA 1 should have continued to supervise Resident 1 before engaging in the two-person transfer process.  *See Plum City Care Ctr.*, DAB No. 2272 at 10-11 (2009) (holding that a CNA who turned away from a resident at high risk for falls failed to meet the regulatory requirement to ensure that the resident received adequate supervision and assistance devices to prevent accidents).  Had CNA 1 been supervising Resident 1 when Resident 1 was sitting on the bed, CNA 1 could have intervened and prevented Resident 1 from falling before she had already begun “to slide to the floor.”  CMS Ex. 12 at 1.

Had CNA 1 waited for CNA 2 to arrive, one staff member could have supervised Resident 1 while the other retrieved the wheelchair.  This would have potentially prevented Resident 1 from falling.  Petitioner’s argument that Resident 1 did not need any assistance when she was just sitting on the side of her bed fails in light of the fact that Petitioner was assessed to need substantial assistance with bed mobility and a two-person assist with transfers.  *See* P. Ex. A ¶ 13 (“[Petitioner] was aware that Resident 1 had several physical and mental health conditions, including dementia, seizures, left-side paralysis, and muscle weakness, which put her at increased risk for injury.  Thus, it was not appropriate or reasonable for CNA 1 to sit Resident 1 upright on the edge of the bed, and then step away to grab the wheelchair, while leaving Resident 1 unsupervised, resulting in Resident 1 falling on August 11, 2017.”).  Specifically, Resident 1’s most recent MDS required staff to provide weight-bearing support for bed mobility.  P. Ex. 3 at 1.  Resident 1 was not being supervised or supported when she was sitting alone on the side of the bed with her legs out of the bed.  CNA 1 was the only staff member in the room and had turned away from and left Resident 1 in order to retrieve a wheelchair.  This did not meet Petitioner’s supervision obligations under 42 C.F.R. § 483.25(d).  *See* *Heritage Plaza Nursing Ctr.*, DAB No. 2829 at 6 (An SNF must “provide supervision and assistance devices that reduce known or foreseeable accident risks to the highest practicable degree, consistent with accepted standards of nursing practice.” (internal quotation marks omitted)).  This failure resulted in Resident 1 sustaining a significant hip fracture, requiring hospitalization and surgery.

***4. A per-instance CMP of $11,605 is a reasonable CMP amount for Petitioner’s substantial noncompliance with 42 C.F.R. § 483.25(d).***

CMS imposed a single per‐instance CMP in the amount of $11,605 on Petitioner. 
When determining whether a CMP amount is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) 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.  *See*42 U.S.C. §§ 1320a-7a(d)(2), 1395i-3(h)(2)(B)(ii)(I).  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f).  The factors listed in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the

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facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  *See*42 U.S.C. §§ 1320a-7a(d)(1), (3), 1395i-3(h)(2)(B)(ii)(I).

The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at §§ 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) and (3); *Alexandria Place*, DAB No. 2245 at 27 (2009); *Kenton Healthcare, LLC*, DAB No. 2186 at 28-29 (2008).  However, unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  *Coquina Ctr.*, DAB No. 1860 (2002).

I consider the factors below.  In some cases, I combine similar factors.

**Facility’s History of Non-Compliance:**CMS argues that Petitioner has a history of noncompliance with 42 C.F.R. Part 483 dating back to 2014.  CMS Pre-hrg. Br. at 13.  Specifically, Petitioner was cited for a violation of Tag F323 (42 C.F.R. § 483.25(h)) in April of 2015.  CMS Ex. 2 at 3.

Petitioner alleges that it has not been cited in annual or standard surveys for repeated deficiencies under Tag F323; therefore, the April 2015 citation should not be considered.  P. Opening Br. at 14-15.

CMS is correct that Petitioner has a history of noncompliance, both with the deficiency identified in the present case and more generally.  In April of 2015, two years preceding the event in the present case, Petitioner was cited for substantial noncompliance with 42 C.F.R. § 483.25(d) (Tag F323) (accident prevention and adequate supervision), but only at the scope and severity level of D.  CMS Ex. 2 at 3.  Therefore, while this history lends support to the CMP, it is limited support.

**Scope and Severity of Deficiencies and Relationship Between Deficiencies:**  There was only one deficiency in this case, at scope and severity level G.  This means a resident incurred actual harm due to the substantial noncompliance.  In this case, Resident 1 sustained a significant injury, a comminuted hip fracture, as a result of her fall on August 11, which required hospitalization and surgery.  However, Resident 1 was not taken for x-rays until August 14 or to the hospital until August 15, likely exacerbating the injury to Resident 1.  ****

**Culpability:**  CMS argues that even though the absence of culpability is not a mitigating factor to reduce the CMP, the facts establish that Petitioner was culpable in this case.  CMS Opening Br. at 11-12; CMS Reply Br. at 7-8.  Petitioner argues that it is not culpable and CMS should “offer an explanation as to why [Petitioner] was culpable as it alleges” if CMS wishes to assert that the CMP is reasonable.  P. Opening Br. at 15-16.

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I find that Petitioner was very culpable (i.e., responsible) for the noncompliance in this case.  As discussed above, CNA 1 began transferring Resident 1, even though Petitioner’s staff was aware Resident 1 required a two-person assist for all transfers due to her high fall risk.  CNA 1 reported to the state surveyor that she had worked with Resident 1 previously and had been “able to transfer the resident” before.  CMS Ex. A ¶ 10; CMS Ex. 1 at 3.  Petitioner’s staff was aware of Resident 1’s potential for fall because of her documented intermittent confusion and wheelchair dependence, need for extensive assistance with bed mobility, and the fact that she required a two-person assist for all transfers.  Petitioner’s staff was also aware of this potential, as evidenced by CNA 1 specifically asking CNA 2 for assistance with transferring Resident 1.  CNA 2 was also aware that Resident 1 “often required two people to assist in transfers from bed to her wheelchair.”  P. Ex. 7 ¶ 6.  However, Resident 1’s care plan was never revised to include this requirement, which would have advised all staff of the necessary supervision and assistance that Resident 1 required.  Further, CNA 1 turned and walked away from Resident 1 in order to begin a transfer even though CNA 2 had not yet arrived to help.  Petitioner’s failure to ensure Resident 1 was properly supervised/assisted during the transfer resulted in her falling from the bed to the floor.  Resident 1 sustained a significant injury in the form of a hip fracture, which required hospitalization and surgery.

**Financial Condition of the Facility:**CMS argues that Petitioner has not submitted any documentation concerning its financial condition to CMS.  CMS Pre-hrg. Br. at 12-13*.*

It does not appear that Petitioner is asserting that it has a financial condition preventing it from paying the CMP imposed by CMS.  Therefore, this is not a factor requiring consideration.

**CMP Amount:**  A per-instance CMP of $11,605 in the middle of the penalty range is entirely reasonable based on the factors considered above.

VI.  Conclusion

For the reasons set forth above, I sustain CMS’s initial determination that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) and that an $11,605 per‐instance CMP is reasonable.


          /s/
        Scott Anderson

                      Administrative Law Judge
      1. All citations to the Code of Federal Regulations are to the version in effect at the time of the survey unless otherwise indicated. back to note 1
                      2. The regulations containing SNF participation requirements substantially changed beginning on November 28, 2016.  81 Fed. Reg. 68,688 (Oct. 4, 2016).  Prior to that time, the text now located at 42 C.F.R. § 483.25(d) was in 42 C.F.R. § 483.25(h).  Because this revision did not affect that substance of the provision, it is appropriate to cite prior DAB decisions discussing § 483.25(h) when evaluating non-compliance under the current § 483.25(d). back to note 2 Back to top
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