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                              Generations at Rock Island, DAB CR5989 (2021)
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Generations at Rock Island, DAB CR5989 (2021)








  
  
    

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





Generations at Rock Island,
(CCN: 14-5950),
Petitioner,

v.

Centers for Medicare & Medicaid Services
Docket No. C-20-129Decision No. CR5989November 30, 2021

        
              
    

      DECISION

Petitioner, Generations at Rock Island, is a long-term care facility located in Rock Island, Illinois, that participates in the Medicare program.  One of its wheelchair-bound residents was in the facility’s van, being driven to an eye clinic, when his wheelchair tipped over backward; he was thrown out of the chair and seriously injured.  The Centers for Medicare & Medicaid Services (CMS) subsequently determined that the facility was not in substantial compliance with the Medicare program requirement governing accident prevention (42 C.F.R. § 483.25(d)) and imposed a civil money penalty (CMP) of $1,345 per day for six days.

Petitioner appealed.  The parties agree that this matter may be decided based on the written record.

For the reasons set forth below, I find that the facility was not in substantial compliance with Medicare program requirements and that the penalty imposed is reasonable.

**Page 2**

Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys.  Facilities must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).

In this case, from September 12 through 17, 2019, surveyors from the Illinois Department of Public Health (state agency) went to the facility to investigate a complaint.  CMS Exs. 1-5.  Based on their findings, CMS determined that the facility was not in substantial compliance with one Medicare participation requirement:  **42 C.F.R. § 483.25(d)** (Tag F689 – quality of care:  accident prevention) cited at scope and severity level G (isolated instance of substantial noncompliance that causes actual harm but does not pose immediate jeopardy to resident health and safety).  CMS Exs. 1, 5.

Following an October 16, 2019 revisit survey, CMS determined that the facility returned to substantial compliance on September 18, 2019.  CMS has imposed against the facility a CMP of $1,345 per day for six days of substantial noncompliance (September 12-17), for a total penalty of $8,070.  CMS Ex. 1.

Petitioner appeals, and the parties agree that this matter may be decided based on the written record.  Joint Stipulation (Docket Entry #8 in the Departmental Appeals Board Electronic Filing System).

**Exhibits**.  With its brief (CMS Br.), CMS submits 16 exhibits (CMS Exs. 1-16).  With its brief, Petitioner submits eight exhibits (P. Exs. 1-8).

Petitioner objects to my admitting CMS Ex. 16, a publication from the University of Michigan Transportation Research Institute.  The publication addresses wheelchair transportation safety.  Petitioner claims that the document lacks foundation and is

**Page 3**

irrelevant.  In Petitioner’s view, no evidence supports the conclusion that the “van in question” is similar to or has safety features similar to those of the facility’s van. As a threshold matter, I note that the rules of evidence do not apply to these proceedings.  42 C.F.R. § 498.61.  The regulations direct me to receive into evidence any documents that are relevant and material.  42 C.F.R. § 498.60(b)(1).

The University of Michigan Transportation Research Institute is a leading research institute, studying transportation safety and mobility.  I consider it an authoritative source, and its publications reliable.  *See**Sunbridge Care & Rehab. for Pembroke*, DAB No. 2170 at 12 (2008) (citing an earlier version of the publication), *aff’d sub nom. SunBridge Care & Rehab for Pembroke v. Leavitt*, 340 F. App’x 929 (4th Cir. 2009) (per curiam).  Moreover, by suggesting that the document describes the safety features of a particular vehicle, Petitioner mischaracterizes its purpose.  It sets forth basic principles for transporting people in wheelchairs; the instructions apply to all vehicles.  Moreover, inasmuch as this case concerns whether the facility safely transported a wheelchair-bound resident, the document is relevant and will be admitted.

In the absence of any further objections, I admit into evidence CMS Exs. 1-16 and P. Exs. 1-8.

Issues

The issues before me are:

From September 12 through 17, 2019, was the facility in substantial compliance with 42 C.F.R. § 483.25(d); and
	If the facility was not then in substantial compliance, is the penalty imposed – $1,345 per day – reasonable.  ****Discussion

***1.  The facility was not in substantial compliance with 42 C.F.R. § 483.25(d) because the facility lacked policies and procedures addressing van safety; its van driver was not properly trained, and she improperly and unsafely transported a vulnerable resident; when that resident was injured, she had no idea how to respond.***1

**Page 4**

**Program requirement:  42 C.F.R. § 483.25(d) (Tag F689)**.  The statute mandates that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  Act § 1819(b)(2).  To this end, the “quality of care” regulation mandates, among other requirements, that the facility “ensure” that each resident’s environment remain as free of accident hazards as possible and that each resident receive adequate supervision and assistive devices to prevent accidents.  42 C.F.R. § 483.25(d).  “Environment” means “all locations under the facility’s control,” including the vehicles that transport residents off-site.  *Fort Madison Health Ctr*., DAB No. 2403 at 8 (2011) (citing *Liberty Nursing & Rehab. Ctr*.*– Mecklenburg Cty*., DAB No. 2095 (2007), *aff’d sub nom. Liberty Nursing & Rehab. Ctr. – Mecklenburg Cty. v. Leavitt*, 294 F. App’x 803, 804 n.2 (4th Cir. 2008) (per curiam)), and *Sunbridge Care & Rehab. for Pembroke*, DAB No. 2170 (2008), *aff’d sub nom. SunBridge Care & Rehab. for Pembroke v. Leavitt*, 340 F. App’x 929 (4th Cir. 2009) (per curiam).

The facility must therefore eliminate or reduce a known or foreseeable risk of accidents “to the greatest degree practicable.”  *Del Rosa Villa*, DAB No. 2458 at 7 (2012); *Clermont Nursing & Convalescent Ctr.*, DAB No. 1923 at 9-10, *aff’d, Clermont Nursing & Convalescent Ctr. v. Leavitt*, 142 F. App’x. 900 (6th Cir. 2005); *accord* *Briarwood* *Nursing Ctr.*, DAB No. 2115 at 5 (2007) (holding that the facility must “take all reasonable steps to ensure that a resident receives supervision and assistive devices designed to meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”).  A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an “adequate” level of supervision under all the circumstances.  *Briarwood* at 5; *Windsor Health Care Ctr.*, DAB No. 1902 at 5 (2003), *aff’d, Windsor Health Care Ctr. v. Leavitt*, No. 04-3018 (6th Cir. 2005).  42 C.F.R. § 483.25(d).2

**Facility van policy**.  The facility’s policy requires very little of its drivers.  They must have a valid driver’s license and be “in good standing” with the Department of Motor Vehicles.  P. Ex. 6.

**Facility’s position description:  transportation aide**.  Petitioner submits a job description for the facility’s “transportation aide.”  P. Ex. 5.  Although the position requires an active driver’s license, the responsibilities listed do not mention driving the

**Page 5**

van, and, in fact, the aide’s responsibilities are incompatible with safe driving.  Among other duties, the aide maintains the transport schedule, keeps the van and equipment clean and maintained, “provides safe, direct observation” of those being transported, and assists nursing staff in providing a safe environment.  P. Ex. 5 at 1-2.  Because a driver must pay attention to the road, she would not be able to observe, “directly and safely,” the passengers.

Otherwise, the facility had no policies and procedures relating to van safety.  CMS Ex. 12 at 3 (Wiening Decl. ¶ 15).

**Resident 1 (R1)**.  R1 was a 65-year-old man, admitted to the facility on July 24, 2019,
suffering from a long list of impairments, including acute and chronic respiratory failure with hypoxia, congestive heart failure, chronic obstructive pulmonary disease, acute kidney failure, and morbid obesity.  CMS Ex. 8 at 1.  He weighed 390 pounds.  CMS Ex. 9 at 4.  He was not steady on his feet and required staff assistance to transfer, stand, and walk.  He used a walker and a wheelchair to get around.  CMS Ex. 8 at 12.  He had no cognitive impairments.  CMS Ex. 8 at 9-10.

R1’s long list of prescription medications included the anticoagulant (blood thinning) medication, warfarin.  CMS Ex. 8 at 6.  Because anticoagulants increase the risk of bleeding and other complications, his care plan required staff to protect him from injury or trauma.  It discouraged the use of a razor with blades and even called for a soft toothbrush.  CMS Ex. 8 at 13.  The plan also directed staff to observe the resident for signs of active bleeding and to report any discolorations.  CMS Ex. 8 at 13-14.

**September 9, 2019 incident**.  On September 9, 2019, the facility’s van driver (who was also a nurse aide) loaded the resident, sitting in his wheelchair, into the facility’s van to take him to an appointment with the eye doctor.  When the driver stopped at a red light, the wheelchair flipped over backward, and the resident was thrown out of the chair, hitting his head and injuring his leg.  CMS Ex. 11 at 4-7.

R1 suffered two bumps on his head.  He also reported that his leg was “killing” him, but that he did not want to go to the emergency room because he did not want to miss his eye appointment.  The van driver was not able to lift him, so she drove him the rest of the way, lying on the floor of the van.3
  When they arrived at the clinic, the van driver did not have a gait belt and was not able to lift the resident, so he slid out the side door on his own, and she helped him pivot into his wheelchair.  CMS Ex. 11 at 6, 7.  The driver later

**Page 6**

told the surveyors that she was “freaking out” and didn’t know what to do.  CMS Ex. 5 at 4.

The van driver did not have a cell phone or any other way to contact the facility.  Apparently, it did not occur to her to call from the eye clinic.  Instead, she left the resident there and drove back to the facility.  When she arrived, she reported the accident to a registered nurse and to the acting director of nursing (ADON).  CMS Ex. 5 at 4-5.  The ADON called the eye clinic to tell them what had happened and that R1 was on warfarin.  CMS Ex. 10 at 1.  The eye doctor examined R1’s leg, which was swelling, and advised him to go straight to the emergency room.  CMS Ex. 11 at 6.

About 20 minutes after she left him there, the van driver returned to the eye clinic.  She picked up the resident and drove him to the emergency room.  CMS Ex. 11 at 6.

**The injuries**.  A CT scan of R1’s head found two areas of soft tissue swelling, but no intracranial hemorrhage or evidence of fracture.  CMS Ex. 9 at 9.

His right leg, however, presented significant problems.  R1 was admitted to the hospital with a very large and painful hematoma (swelling of blood outside the blood vessels).  CMS Ex. 9 at 13.  He reported “excruciating pain” until, suddenly, he experienced a “wave of relief.”  Looking down, he saw that blood was pouring from the back of his calf.  CMS Ex. 11 at 6.  The hematoma had split open.  CMS Ex. 9 at 13-14.

R1 developed anemia due to his acute blood loss.  He was transferred to the intensive care unit, administered two units of packed red blood cells, and ten milligrams of Vitamin K (to counteract the anticoagulant effect of the warfarin).  CMS Ex. 9 at 14, 28.  Nevertheless, a progress note entered at 1:21 p.m. on September 10, 2019, describes “mild blood soaking the dressings.”  CMS Ex. 9 at 19.

Progress notes, dated September 12, describe the wound as large – from below the knee to above the ankle – and painful, oozing serosanguineous fluid (blood combined with serous fluid).  CMS Ex. 9 at 27-28, 32-24.  R1 was started on a course of antibiotics.  CMS Ex. 9 at 30.  As of the last day of the survey, he was still hospitalized.  CMS Ex. 5 at 8; *see* CMS Ex. 9.  The record is silent as to his ultimate fate.

**The facility’s substantial noncompliance**.  Petitioner claims that the facility complied with section 483.25(d) and that R1’s injuries were the result of “an unfortunate accident that occurred even though the facility had systems in place designed to minimize the risk of an accident or injury.”  P. Br. at 6.

In fact, Petitioner has not shown that the facility had any systems in place to assure that its drivers were well-trained and capable, and that its riders would be safe.  The facility produced no written policies and procedures to assure rider safety.  CMS Ex. 12 at 3

**Page 7**

(Wiening Decl. ¶ 15).  It required minimal qualifications for its drivers:  a valid driver’s license in “good standing” with the Department of Motor Vehicles.  P. Ex. 6.  It had no formal training program but relied on each driver to train his/her successor.  P. Br. at 12.  Petitioner has not produced any written instructions or training materials.  *See* CMS Ex. 12 at 3 (Wiening Decl. ¶ 16); *see Sunbridge*, DAB No. 2170 at 16 (finding that the absence of instruction manuals or guidelines evidences inadequate training).  No one monitored the quality of the training or verified a new driver’s competence.  The van driver had no immediate supervisor to oversee her performance.  CMS Ex. 11 at 11.

Until July 2019, the van driver here worked as a nurse aide.  She was “trained” by the previous driver.  She told surveyors that she’d had just one day of training and thought that she had been “trained wrong.”  Specifically, she said that she was trained to attach the “hooks” (tie-down straps) to the chair’s wheels, rather than to the frame of the chair.  CMS Ex. 5 at 7; CMS Ex. 12 at 2-3 (Wiening Decl. ¶ 14); *see* CMS Ex. 16 at 3 (“**Do not attach tiedowns to adjustable, moving, or removable parts of the wheelchair, such as arm supports, foot supports, and wheels.”**) (emphasis in original).  She also told the surveyors that, until after the accident, no one instructed her on how to apply the van seatbelt.  CMS Ex. 5 at 5.4

Petitioner argues that driving is inherently dangerous.  No one can control other drivers, weather, road conditions, or other variables.  P. Br. at 7.  No doubt risks attach to driving, and not all of those risks can be anticipated or prevented; thus, not all accidents would evidence a facility’s substantial noncompliance.  Were another driver to run a red light and hit the van, for example, the facility would likely not be accountable for the accident.  But stopping at a red light on an unexceptional day is hardly an unexpected occurrence and is not inherently dangerous.  If the rider is appropriately secured, the driver should be able to stop safely.

According to Petitioner, it is “impossible to prove” and “simply untrue” that the van driver failed to secure safely R1’s wheelchair.  P. Br. at 11.  In fact, overwhelming evidence establishes that the van driver did not secure safely the wheelchair.  A properly-secured wheelchair does not flip over backwards.  An individual who is properly restrained is not thrown from his wheelchair.  Those events alone are sufficient to

**Page 8**

establish the facility’s substantial noncompliance, even without the driver’s admission that she did not properly secure the chair hooks.  In fact, she told the surveyors that she did not safely secure R1’s wheelchair because she had not been properly trained.  She also placed the wheelchair facing backward instead of forward and did not secure the seatbelt.  CMS Ex. 5 at 5, 8; *see* CMS Ex. 11 at 4; *see* CMS Ex. 16 at 3 (“Always position the wheelchair and rider facing forward in the vehicle.”); CMS Ex. 16 at 4 (“**It is very important to provide effective restraint for the wheelchair user with a crash-tested lap and shoulder belt.**”) (emphasis in original).

Petitioner acknowledges that the van driver did not fasten R1’s seatbelt but claims that doing so wouldn’t have made any difference because R1 remained in the chair when it flipped over.  P. Br. at 12.  This is simply not true.  Both R1 and the van driver reported that he was thrown from the chair.  CMS Ex. 11 at 6 (“[S]he stopped a little abruptly, *which threw me out of my wheelchair*.  My head landed between the [two] front seats, and my wheelchair landed on its armrests/upside down.”) (emphasis added); CMS Ex. 11 at 7 (“[R1’s] wheelchair then flipped[,] and he fell out.”).

Petitioner also asserts that the use of a seatbelt is “common sense.”  If the van driver failed to use common sense, “that was her failure.”  In Petitioner’s view, the facility “had no reason to believe” that the van driver “would forget something so common” and therefore cannot be held accountable for the driver’s alleged mistake.  P. Br. at 12.  In fact, the van driver did not find attaching the seatbelt to be “common sense”; she admitted that she did not know how to do it.  CMS Ex. 5 at 5.  But whatever the reason for her failing to implement this basic safety device, the facility is accountable.  It is well-settled that a facility “cannot disavow responsibility for the actions of its employees,” through which it acts.  *Springhill Senior Residence*, DAB No. 2513 (2013) at 14 (*citing Beverly Health Care Lumberton*, DAB Ruling No. 2008-5 (Denial of Petition for Reopening Decision No. 2156) at 6-7 (2008)); *Emerald Oaks*, DAB No. 1800 at 7 n.3 (2001); *N. C. State Veterans Nursing Home, Salisbury*, DAB No. 2256 (2009).

Moreover, people experience lapses in “common sense” all the time.  That’s why institutions, such as long-term care facilities, must properly train their employees and must develop procedures to protect against such lapses and to keep the residents safe.  Here, the facility lacked those procedures.

Finally, when the accident occurred, the van driver was neither trained nor equipped to respond properly.  She further jeopardized the resident’s safety by leaving him lying on the van’s floor as she drove to the eye clinic.  *See Sunbridge*, DAB No. 2170 at 33 n.19 (noting that, where the driver was not trained to assess injuries and accurately communicate the resident’s condition at the time of an accident, no one was in a position to make an informed judgment about whether it was safe to move the unrestrained resident, lying on the van’s floor, for even a short distance).  When she arrived at the clinic, she did not have a gait belt to assist in transferring the resident and, instead, he

**Page 9**

“slid” out of the van and pivoted into the wheelchair.  She told the surveyors that she had not been trained to respond to emergencies that occurred while she was driving the van.  CMS Ex. 5 at 8.  Nor was she able to call for instructions.  She did not have a phone; the van did not have a phone.  Instead of calling from the eye clinic, she simply left the resident there, without telling the clinic staff what had happened, and returned to the facility.  This too puts the facility out of substantial compliance with section 483.25(d).

***2.  The penalty imposed is reasonable.***

To determine whether the CMP is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance, including repeat deficiencies; 2) the facility’s financial condition; 3) factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors 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 facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors.  I am neither bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  *Barn Hill Care Ctr.*, DAB No. 1848 at 21 (2002); *Cmty, Nursing Home*, DAB No. 1807 at 22 *et seq*. (2002); *Emerald Oaks*, DAB No. 1800 at 9; *CarePlex of Silver Spring*, DAB No. 1638 at 8 (1999).

The burden is on the facility to demonstrate that a reduction is necessary to make the CMP amount reasonable.  *Heritage Plaza Nursing Ctr.*, DAB No. 2017 at 22 (2017).

Here, CMS imposed a penalty of $1,345 per day for each day of immediate jeopardy, which is at the low end of the penalty range ($107 to $6,418).  42 C.F.R. § 488.438; 45 C.F.R. § 102.3; 83 Fed. Reg. 51,369 (Oct. 11, 2018); 84 Fed. Reg. 59,549 (Nov. 5, 2019).5
  Considering the relevant factors, this penalty is reasonable.

The facility unquestionably has a poor compliance history.  Between July 2016 and September 2019, it was surveyed multiple times (the excessive number attributable to the complaints lodged) and multiple deficiencies were cited.  CMS Ex. 13.  Petitioner,

**Page 10**

however, complains that its compliance history should not be considered in setting the penalty amount because “it is based on citations that the facility did not have a reasonable opportunity to contest.”  P. Br. at 18.

A facility has no right to a hearing unless CMS imposes one of the remedies specified in the regulations.  *San Fernando Post Acute Hosp.*, DAB No. 2492 at 7-8 (2012); *Columbus Park Nursing & Rehab. Ctr.*, DAB No. 2316 at 7 (2010); *Lutheran Home – Caledonia*, DAB No. 1753 (2000); *Schowalter Villa*, DAB No. 1688 (1999).  The remedy, not the citation of a deficiency, triggers the right to a hearing.  *Schowalter Villa*, DAB No. 1688 at 3; *see* 42 C.F.R. §§ 488.406, 498.3(b)(13).   In Petitioner’s case, it seems that CMS did not always impose penalties for the deficiencies cited (a strategy that does not seem to have produced “consistent and lasting corrective action”).  As a result, Petitioner was not entitled to review of those citations.

But this was not true for all of the surveys/complaint investigations.  During a complaint investigation/recertification survey, completed on June 14, 2019, less than a month before the survey here, CMS determined that the facility was not in substantial compliance with multiple program requirements, some of which posed immediate jeopardy to resident health and safety.  Significantly, the facility was not in substantial compliance with several provisions of the quality-of-care regulation, 42 C.F.R. § 483.25 (Tags F684, F689, F695), which were cited at scope and severity levels D (isolated instance of substantial noncompliance that causes no actual harm, with the potential for more than minimal harm) through K (pattern of substantial noncompliance that poses immediate jeopardy).  Substantial penalties were imposed ($151,580) and Petitioner requested review.  CMS Ex. 13 at 2.  That appeal is currently pending before another administrative law judge of the Civil Remedies Division.  *Generations at Rock Island*, Docket No. C-19-1111.

Moreover, even without considering those surveys for which no penalties were imposed and for which the appeal is still pending, the facility has a poor compliance history.  During the survey cycle that started March 20, 2019, multiple complaint investigations found quality of care deficiencies, cited at scope and severity levels D and G.  A penalty was imposed, so the facility was entitled to review.  CMS Ex. 13 at 2.  For the survey cycle starting July 18, 2017, multiple complaint investigations and the recertification survey cited numerous deficiencies, including a quality-of-care deficiency that caused actual harm.  A CMP was imposed, which meant that the facility was entitled to review.  CMS Ex. 13 at 4.

By itself, the facility’s history (even discounting the findings that were not appealable) justifies the relatively modest penalty imposed.

Petitioner does not claim that its financial condition affects its ability to pay the penalties.

**Page 11**

Applying the remaining factors, I have discussed above the facility’s multiple failures to ensure the safety of its residents while they were transported in the facility’s van.  It had virtually no policies and procedures in place and no systems in place to ensure that its drivers were trained adequately.  Its driver was ill-prepared to respond when the resident was seriously injured, and her actions following the accident further jeopardized his health and safety.  The facility is culpable for all these failings, and the penalty imposed is minimal, considering the seriousness of the deficiency.

***3.  CMS’s determination as to the duration of the facility’s substantial noncompliance is consistent with statutory and regulatory requirements.***

Once a facility has been found to be out of substantial compliance (as Petitioner was here), it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.  *Ridgecrest Healthcare Ctr.*, DAB No. 2493 at 2-3 (2013); *Taos Living Ctr.*, DAB No. 2293 at 20 (2009); *Premier Living & Rehab Ctr.*, DAB No. 2146 at 3 (2008); *Lake City Extended Care*, DAB No. 1658 at 12-15 (1998).  The burden is on the *facility* to prove that it is back in compliance, not on CMS to prove that deficiencies continued to exist.  *Asbury Care Ctr. at Johnson City*, DAB No. 1815 at 19-20 (2002).

The facility must show that the incidents of noncompliance have ceased *and* that it has implemented appropriate measures to ensure that similar incidents will not recur.  *Libertywood Nursing Ctr.*, DAB No. 2433 at 15 (*citing Life Care Ctr. of Elizabethton*, DAB No. 2356 at 16 (2011)); *accord* 42 C.F.R. § 488.456(a) and (e); *Hermina Traeye Mem’l Nursing Home*, DAB No. 1810 at 12 (2002) (holding that, to be found in substantial compliance earlier than the date of the resurvey, the facility must supply documentation “acceptable to CMS” showing that it was in substantial compliance and *was capable of remaining in substantial compliance* on the earlier date); *Cross Creek Care Ctr.*, DAB No. 1665 (1998).  A facility’s return to substantial compliance *usually**must be established through a resurvey*.  42 C.F.R. § 488.454(a); *Ridgecrest* at 2-3.

Here, the facility has not met its burden of establishing that it returned to substantial compliance any earlier than September 18.  Its deficiencies were not the type (like a leaky roof or a broken dishwasher) that lend themselves to a quick fix.  As shown by the discussion above, the magnitude of the facility’s problems with transporting its residents is hard to overstate.  It effectively had no systems in place to assure the safety of its residents.

Following the accident, the facility put its maintenance director, who had been at the facility only four weeks, in charge of training its transportation staff.  The facility provided him with no instructions or procedures about van safety, so he “conducted his own research.”  He trained the van driver immediately after the accident, but, as of the time of the survey, she was unable to demonstrate that she knew how to use properly the van’s straps.  CMS Ex. 11 at 9, 10; CMS Ex. 12 at 3 (Wiening Decl. ¶¶ 15, 16).

**Page 12**

On September 12, the corporate maintenance director trained the facility’s maintenance director, and, between September 12 and October 8, the maintenance director trained three new drivers.  At the time of the revisit survey (October 16), they demonstrated that they could properly secure the residents.  CMS Ex. 12 at 3 (Wiening Decl. ¶ 17).  At the time of the revisit, the facility had policies and procedures in place.  Petitioner suggests that this shows that it achieved substantial compliance as of September 12.  P. Br. at 17.  It does not.  It shows that, as of September 12, the facility had trained one individual – and not the individual who would be driving the residents – who was then charged with training the actual drivers.

Training might, if properly implemented, help the facility achieve substantial compliance but, by itself, does not establish substantial compliance.  Until the facility can demonstrate that its training and other interventions are effective, i.e., that staff capably followed the training, that management put effective monitoring tools in place, and that those interventions resolved the problem, the facility has not met its significant burden of demonstrating that it has alleviated the level of threat to resident health and safety.  *Oceanside Nursing & Rehab. Ctr.*, DAB No. 2382 at 19 (2011); *Premier Living & Rehab. Ctr.*, DAB CR1602 (2007), *aff’d,* DAB No. 2146 (2008).  This is particularly important for a facility – like Petitioner – that seems to have difficulty maintaining substantial compliance.

Conclusion

The evidence establishes that the facility was not ensuring that R1 received adequate supervision and assistive devices to prevent accidents.  The facility was therefore not in substantial compliance with 42 C.F.R. § 483.25(d).  The penalty imposed – $1,345 per day for six days – is reasonable.


          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge
      1. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision. back to note 1
                      2. The regulations governing long-term care facilities have been revised since these cases were decided; the requirement that facilities minimize the risk of accidents has been moved from 42 C.F.R. § 483.25(h) to 483.25(d).  81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (July 13, 2017).  However, the substance of the “quality of care” regulation requirements – which are statutory – has not changed, so decisions that pre-date the regulatory changes remain valid. back to note 2
                      3. Neither the incident reports nor witness statements describe the resident’s position while he completed the drive to the eye clinic.  When the surveyors questioned her, the van driver admitted that she finished the drive with him lying on the bed of the van.  CMS Ex. 12 at 2 (Wiening Decl. ¶ 13). back to note 3
                      4. Petitioner suggests that the statement of deficiencies does not allege that the van driver’s training was improper.  P. Br. at 12.  I think this mischaracterizes the contents of the statement of deficiencies, but, ultimately, I find it irrelevant.  As the Departmental Appeals Board has repeatedly explained, the statement of deficiencies is a notice document, not intended to “lay out every single detail in support of finding that a violation has been committed.”  Alden Town Manor Rehab. & HCC, DAB No. 2054 at 17 (2006) (citing Pacific Regency Arvin, DAB No. 1823 at 9-10 (2002)).  So long as the facility knows what it must answer to – which, as here, was accomplished through pre-hearing record development – the facility has sufficient notice. back to note 4
                      5. Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, November 4, 2019.  CMS Ex. 1; 83 Fed. Reg. at 51,380 (Oct. 11, 2018).  I note that, effective the following day, the amounts were readjusted ($110 to $6,579).  84 Fed. Reg. 59,549 (Nov. 5, 2019). back to note 5 Back to top
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