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                              Concordia Village Of Tampa, DAB CR6224 (2023)
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Concordia Village Of Tampa, DAB CR6224 (2023)








  
  
    

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





Concordia Village Of Tampa,
(CCN: 10-5351),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-19-1002Decision No. CR6224January 30, 2023

        
              
    

      DECISION

The Centers for Medicare & Medicaid Services (CMS) determined that Concordia Village of Tampa (Petitioner or the facility) was out of substantial compliance with Medicare life safety code requirements at 42 C.F.R. §§ 483.90(a)(6)(ii), 483.90(b), and 483.90(j)(1)(i) (also referred to as Tags K353 and K914).  CMS also determined that Petitioner was out of substantial compliance with Medicare participation requirements for resident health and safety at 42 C.F.R. §§ 483.12(c)(1), (4); 483.21(a)(1)-(3), 483.21(b)(1); 483.25(d)(1)-(2); and 483.50(b)(1) (also referred to as Tags F609, F655, F656, F689, and F776).  Petitioner disputes that it failed to comply with the cited regulations and also challenges the imposition of a per-day civil money penalty (CMP) of $315 from November 28, 2018, through February 9, 2019, and a per-day CMP of $515 from February 10, 2019, through March 19, 2019, for a total CMP of $42,880.  For the reasons set forth below, I conclude that Petitioner was not in substantial compliance with Medicare life safety code requirements found at 42 C.F.R. §§ 483.90(a)(6)(ii), 483.90(b), and 483.90(j)(1)(i) (Tags K353 and K914), that Petitioner was not in substantial compliance with Medicare participation requirements found at 42 C.F.R. §§ 483.12(c)(1), (4); 483.21(a)(1)-(3), 483.21(b)(1); 483.25(d)(1)-(2); and 483.50(b)(1) (Tags F609, F655, F656, F689, and F776), and that the per-day CMPs are reasonable in duration and amount.

Page 2

I.   Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in Tampa, Florida.  CMS Exhibit (Ex.) 1 at 1.  On November 27-30, 2018, the Florida Agency for Health Care Administration (state agency) completed a standard, a complaint, and a fire and life safety code survey at the facility.  CMS Exs. 1, 2.  Based on the surveys, CMS determined that Petitioner was out of substantial compliance with Medicare participation requirements.

In a December 14, 2018 letter, the state agency notified Petitioner that it would recommend that CMS impose the following remedies:  a CMP; mandatory denial of payment for new admissions (DPNA) if Petitioner did not return to substantial compliance by March 1, 2019; and termination of Petitioner’s Medicare provider agreement if Petitioner did not return to substantial compliance by May 30, 2019.  CMS Ex. 9 at 1-2.  On January 28, 2019, the state agency conducted a revisit survey, finding that Petitioner remained out of compliance with life safety code requirements found at 42 C.F.R. § 483.90(a)(6)(ii), 483.90(b), and 483.90(j)(1)(i) (Tags K353 and K914) at a scope and severity of “E” and “D,” respectively.1  CMS Ex. 3.

In a February 22, 2019 letter, CMS notified Petitioner that it was imposing a per-day CMP of $315 based on the facility’s noncompliance with the regulations, beginning November 28, 2018 until Petitioner returned to substantial compliance or its Medicare provider agreement was terminated.  CMS Ex. 5 at 1-2.

Page 3

On February 27-28, 2019, the state agency conducted a complaint survey of the facility.  CMS Ex. 4 at 1.  Based on the survey findings, the state agency concluded that Petitioner was not in substantial compliance with Medicare participation requirements found at 42 C.F.R. §§ 483.12(c)(1), (4); 483.21(a)(1)-(3), (b)(1)2; 483.25(d)(1)-(2); and 483.50(b)(1) (Tags F609, F655, F656, F689, and F776) at a scope and severity of “D,” “G,” “G,” “G,” and “D,” respectively.  *Id.*at 1-6, 9-37.

In a March 21, 2019 letter, CMS notified Petitioner that it was imposing a per-day CMP of $515 based on the facility’s noncompliance with the regulations, beginning February 10, 2019 until Petitioner returned to substantial compliance or its Medicare provider agreement was terminated.  CMS Ex. 6 at 2.  CMS also advised that the $315 per day CMP imposed in the February 22, 2019 letter would remain in effect from November 28, 2019 until February 9, 2019.  *Id*.

In a May 21, 2019 letter, CMS confirmed the DPNA would run from March 9-19, 2019, and the previously imposed CMPs would remain in effect.  CMS Ex. 7 at 1.  CMS advised that Petitioner’s provider agreement would not be terminated because Petitioner had returned to substantial compliance as of March 20, 2019.  *Id*.

In a June 3, 2019 letter, CMS confirmed the per-day CMPs of $315 from November 28, 2019 through February 9, 2019 and $515 from February 10, 2019 through March 19, 2019, would remain in effect, for a total CMP of $42,880.  CMS Ex. 8 at 1.

Petitioner timely and separately requested hearings to challenge the deficiency findings and the remedies imposed by the February 22 and March 21, 2019 notice letters.  The cases were docketed as C-19-687 and C-19-688 and assigned to me.  On April 30, 2019, my office acknowledged receipt of Petitioner’s hearing requests and provided copies of my Standing Prehearing Order (Prehearing Order).  In an order issued May 16, 2019, I consolidated C-19-687 under Docket No. C-19-688.  Thereafter, Petitioner requested a hearing to challenge CMS’s June 3, 2019 notice letter finding that Petitioner’s noncompliance continued through March 19, 2019.  The case was docketed as C-19-1002 and assigned to me.  In an order issued August 14, 2019, I consolidated C‐19‐688 under Docket No. C‐19‐1002.

Page 4

As required by my Prehearing Orders, CMS filed a prehearing exchange, consisting of a brief, supplemental brief3 (CMS Supp. Br.), and 35 proposed exhibits (CMS Exs. 1‐35), including the written direct testimony of two proposed witnesses (CMS Exs. 17, 32).  Petitioner filed a prehearing exchange, consisting of a brief (P. Br.), two proposed exhibits (P. Exs. 1-2), and one unsigned declaration from its proposed witness.  CMS objected to the unsigned declaration, and I issued an order to show cause.  In response, Petitioner re-filed a signed, sworn declaration.4  CMS did not renew its objection to the declaration and did not request to cross-examine Petitioner’s proposed witness.  Petitioner requested to cross-examine CMS’s two proposed witnesses.

On February 18, 2021, I held a hearing by video teleconference and a transcript was made of the proceeding.  In the absence of objection, I admitted into evidence CMS Exs. 1-35.  Tr. at 7, 15, 49.  During the hearing, I received and designated the re‐filed signed, sworn declaration of Petitioner’s witness as P. Ex. 3 and admitted into evidence P. Exs. 1-3.  Tr. at 8.  Counsel for Petitioner cross-examined CMS’s witnesses, both state agency surveyors.  Following the hearing, the parties filed post-hearing briefs (CMS Post-hrg. Br., P. Post-hrg. Br.) and CMS filed a post-hearing reply (CMS Reply).

II.   Issues

The issues in this case are:

Whether Petitioner failed to comply substantially with Medicare participation requirements at 42 C.F.R. § 483.90(a)(6)(ii), (b), (j)(1)(i) (Tags K353 (Sprinkler System) and K914 (Electrical System));
	Whether Petitioner failed to comply substantially with Medicare participation requirements at 42 C.F.R. § 483.12(c)(1), (4) ((Tag F609) (Reporting of Alleged Violations));Page 5

Whether Petitioner failed to comply substantially with Medicare participation requirements at 42 C.F.R. § 483.21(a)(1)-(3), (b)(1) (Tags F655 (Baseline Care Plan) and F656 (Comprehensive Care Plan));
	Whether Petitioner failed to comply substantially with Medicare participation requirements at 42 C.F.R. § 483.25(d)(1)-(2) ((Tag F689) (Free of Accident/Supervision/Devices));
	Whether Petitioner failed to comply substantially with Medicare participation requirements at 42 C.F.R. § 483.50(b)(1)(i)-(ii) ((Tag F776) (Radiology Services)); and
	If Petitioner did not comply substantially with Medicare participation requirements, whether the per-day CMPs imposed are reasonable in amount and duration.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.   Burden of Proof

CMS must make a prima facie showing that Petitioner failed to comply substantially with federal participation requirements.  If this occurs, Petitioner must prove substantial compliance by a preponderance of the evidence in order to rebut CMS’s showing and to prevail.  *Hillman Rehab. Ctr.*, DAB No. 1611 at 8 (1997), *aff’d sub nom. Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs.*, No. Civ. A-98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); *Batavia Nursing & Convalescent Ctr.*, DAB No. 1904 (2004), *aff’d sub nom. Batavia Nursing & Convalescent Ctr. v. Thompson*, 129 F. App’x 181 (6th Cir. 2005); *Emerald Oaks*, DAB No. 1800 (2001); *Cross Creek Health Care Ctr.*, DAB No. 1665 (1998).

V.   Discussion

**A. Statutory and Regulatory Framework**

The Act sets forth requirements SNFs must meet to participate 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. parts 483 and 488.

Page 6

To participate in Medicare, a 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.  A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act (42 U.S.C. § 1395i-3(b), (c), and (d)) or the Secretary’s regulations at 42 C.F.R. part. 483, subpart 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.  The Act also authorizes the Secretary to impose enforcement remedies against SNFs that are not in substantial compliance with program participation requirements.  Act § 1819(h)(2) (42 U.S.C. § 1395i-3(h)(2)).  Among other enforcement remedies, CMS may impose a per-day CMP for each instance of noncompliance, whether or not the deficiencies are at the immediate jeopardy level of noncompliance.  42 C.F.R. § 488.430(a).  CMS may also impose a per-day CMP for the number of days of past noncompliance.  42 C.F.R. § 488.430(b).  At the time CMS imposed the remedies at issue in this case, CMS was authorized to impose a CMP of $107 to $6,418 for non-immediate jeopardy deficiencies.  42 C.F.R. § 488.438(a)(1)(ii).5

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

***1. Petitioner failed to ensure that its physical environment complied substantially with Medicare participation requirements for life safety from fire as defined in 42 C.F.R. § 483.90(a), (b).***

**State agency fire and life safety code survey.**  On November 27-28, 2018, the state agency conducted an annual fire and life safety code survey at the facility to determine Petitioner’s compliance with the applicable building and fire codes.  CMS Ex. 1.  Life

Page 7

Safety Code Surveyor Roland Chacon (Surveyor Chacon) conducted that portion of the survey.  CMS Ex. 17 ¶ 4.  Surveyor Chacon testified that the records he collected during the fire and life safety code survey are true and accurate copies.  CMS Ex. 17 ¶ 4.  Unless I explicitly state otherwise, I find it more likely than not that the statements and observations in the statement of deficiencies for the survey accurately record what Surveyor Chacon observed during his review of Petitioner’s records and his interviews with Petitioner’s employees.  I find the facts described in this section by a preponderance of the evidence.

During a tour of the facility with Petitioner’s maintenance director, Surveyor Chacon observed ceiling pendant sprinkler heads that were “significantly corroded and loaded with dust balls and grime.”  CMS Ex. 17 ¶ 8; CMS Ex. 1 at 6; Tr. at 30, 35-36.  In addition, the facility failed to produce records demonstrating that the sprinkler system had been inspected during the fourth quarter of 2017 and the first quarter of 2018.  CMS Ex. 1 at 7.  Surveyor Chacon further found that a vendor had inspected the sprinkler system in August of 2018 and determined that 309 of Petitioner’s sprinkler heads needed repair or replacement at that time.  Tr. at 30-32.  Therefore, Surveyor Chacon opined that the sprinkler heads had been corroded and loaded since at least August of 2018.  *Id.*at 36.  Surveyor Chacon testified that corrosion can delay or prevent the sprinkler head from releasing water.  CMS Ex. 17 ¶ 6.  He testified that dust and grime on a sprinkler head has an insulating effect on the release mechanism, which may delay the sprinkler from reaching its set-off temperature in the event of a fire.  *Id.*¶ 7.  Based on these findings, Surveyor Chacon cited Petitioner for failure to maintain the automatic fire sprinkler system, in violation of 42 C.F.R. § 483.90(a)(6)(ii), (b) (Tag K353).  CMS Ex. 1 at 5-7.

Also during the annual survey that ended on November 28, 2018, Petitioner was unable to produce any maintenance or inspection records demonstrating that the electrical outlets in the facility’s residents’ rooms had been tested.  CMS Ex. 1 at 11-12; CMS Ex. 17 ¶ 12; Tr. at 37-38.  In the absence of these records, Surveyor Chacon cited Petitioner for failing to maintain and test the electrical systems, in violation of 42 C.F.R. § 483.90(b), (j)(1)(i) (Tag K914).  CMS Ex. 1 at 11-12.

Petitioner submitted a plan of correction (POC) in which it asserted, among other things, that it would replace the corroded and loaded sprinkler heads by December 30, 2018.6  CMS Ex. 1 at 5.  Petitioner’s POC also stated that it had adopted a procedure “to ensure annual outlet testing is accomplished in accordance with NFPA [National Fire Protection Association] 99.”  *Id.*at 11.  Petitioner listed the completion date for this corrective action as December 30, 2018, as well.  *Id.*

Page 8

On January 28, 2019, Surveyor Chacon returned to the facility to perform a fire and life safety code revisit survey.  CMS Ex. 3.  During the revisit, Surveyor Chacon observed that the sprinkler heads were still in the same condition and had not been repaired or replaced.  CMS Ex. 17 ¶ 10.  Surveyor Chacon reviewed additional records, finding the facility had received a quote for 309 sprinkler head replacements from a vendor, but the work had not started.  *Id.* After the survey, Petitioner provided correspondence from the vendor indicating that it had scheduled the repairs to begin on February 25, 2019.  *Id.*¶ 11; *see also*CMS Ex. 3 at 2; Tr. at 29; CMS Ex. 14 at 6-7.  Because the sprinkler heads had not been repaired or replaced, Surveyor Chacon found that Petitioner remained out of substantial compliance with 42 C.F.R. § 483.90(a)(6)(ii), (b) (Tag K353).  CMS Ex. 3 at 1-2; *see also* CMS Ex. 10.

Also during the January 28, 2019 revisit, Petitioner’s maintenance director and administrator confirmed Petitioner had neither completed nor found records of electrical outlet testing.  CMS Ex. 17 ¶ 12; Tr. at 37-38.  Surveyor Chacon testified that, after he left the facility, Petitioner provided a document showing that some of the outlets had been tested on the day of the revisit.  CMS Ex. 17 ¶ 13; *see also*CMS Ex. 34 at 2.  Thereafter, as part of Informal Dispute Resolution (IDR), Petitioner submitted additional documents showing that Petitioner had tested other outlets on dates after January 28, 2019.  CMS Ex. 17 ¶ 14; *see also*CMS Ex. 14 at 12-20.  Based on the records he reviewed, Surveyor Chacon determined that Petitioner remained out of substantial compliance with 42 C.F.R. § 483.90(b), (j)(1)(i) (Tag K914) as of the date of the revisit.  CMS Ex. 3 at 2‐3; *see also* CMS Ex. 10.

***a. Petitioner failed to comply substantially with 42 C.F.R. § 483.90(a)(6)(ii), (b) (Tag K353) because Petitioner failed to test, inspect, and maintain an approved, supervised automatic sprinkler system in accordance with the applicable building and fire codes.***

The physical environment regulation states generally that “[t]he facility must be designed, constructed, equipped, *and maintained* to protect the health and safety of residents, personnel and the public.”  42 C.F.R. § 483.90 (emphasis added).  Subsection (a)(6)(ii) imposes specific obligations upon a facility related to automatic sprinkler systems, as follows:

(6)  A long term care facility must:

* * * *

(ii) Test, inspect, and maintain an approved, supervised automatic sprinkler system in accordance with the 1998 edition of NFPA 25, *Standard for the*

Page 9

*Inspection, Testing, and Maintenance of Water-Based Fire Protection Systems,* as incorporated by reference.  The Director of the Office of the Federal Register has approved the NFPA 25, *Standard for the Inspection, Testing, and Maintenance of Water-Based Fire Protection Systems,* 1998 edition, issued January 16, 1998 for incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. . . .

42 C.F.R. § 483.90(a)(6)(ii) (emphasis in the original).

CMS presented credible evidence that Petitioner had serious fire safety problems due to its failure to test, inspect, and maintain its sprinkler system.  Surveyor Chacon testified that Petitioner’s sprinkler system was at serious risk of malfunction, reduced effectiveness, and/or delayed operation.  CMS Ex. 17 ¶¶ 6-8.  Petitioner’s own maintenance director conceded the sprinkler heads were corroded and loaded.  CMS Ex. 17 ¶ 8; Tr. at 30-31, 35-36.  I find that these facts establish a prima facie case that Petitioner failed to properly test, inspect, or maintain its sprinkler system, in violation of 42 C.F.R. § 483.90(a)(6)(ii).  Accordingly, the burden of persuasion shifts to Petitioner to demonstrate by a preponderance of the evidence that it complied substantially with 42 C.F.R. § 483.90(a)(6)(ii).  *Hillman*, DAB No. 1611 at 8.  I conclude that Petitioner failed to meet that burden.

Petitioner produced no evidence to disprove any of Surveyor Chacon’s observations on this issue.  Rather, Petitioner concedes that when it purchased the facility on May 1, 2018, the corrosion observed on the sprinkler heads was present and “had likely existed for a period of time prior to ownership.”  CMS Ex. 14 at 4.  Petitioner further explains that repairs were delayed due to third party scheduling.  P. Post-hrg. Br. at 3.  Even accepting Petitioner’s argument that the corroded sprinkler heads pre-dated Petitioner’s ownership, this only underscores that the facility’s sprinkler system remained out of compliance from the time Petitioner acquired the facility through the revisit.  Despite having owned the facility since May 2018, Petitioner failed to show that it took any steps to repair the sprinkler heads even after an outside vendor reported in August 2018 that the sprinkler system was not up to code.  *See*Tr. at 30‐32.  As of the revisit in January 2019, Petitioner had only scheduled – not completed ‒ the remediation.  *See, e.g.,*CMS Ex. 14 at 6-7.

That Petitioner hired a contractor to repair the sprinkler system in the future does not prove that Petitioner complied substantially with the regulations.  No matter how Petitioner chose to respond to the deficiency finding – whether to complete the repairs itself or to contract with a third party – Petitioner, not the vendor, was responsible for complying with Medicare participation requirements and providing a safe physical

Page 10

environment for its residents.  Nor does Petitioner’s argument that the state agency erred by conducting the revisit survey prematurely persuade me otherwise.

Petitioner suggests that the state agency was bound by Petitioner’s representation in the POC that the repairs would be completed within 90 days (i.e., after the date of the revisit survey).  *See*P. Post-hrg. Br. at 2.  However, Surveyor Chacon testified credibly that the state agency schedules revisits based on the completion date entered on the POC.  Tr. at 21.  Petitioner, not the state agency, entered “12/30/18” as the date by which Petitioner would complete the POC.  CMS Ex. 1 at 5-6; *see also*Tr. at 20.  Moreover, if Petitioner was unable to find a contractor to repair the sprinkler system by the promised completion date, it could have requested an extension of the deadline from the state agency.  *See*Tr.at 28.  However, Petitioner failed to do so.

Petitioner also contends that Surveyor Chacon agreed to find the facility in substantial compliance if Petitioner provided documentation of having contracted for the repairs.  P. Post-hrg. Br. at 2; *see also*P. Ex. 3 ¶ 3.  Surveyor Chacon testified that he did not recall such a conversation.7  Tr. at 28.  I find it unlikely that Surveyor Chacon gave Petitioner’s staff such an assurance, but even if he did, the conversation would be immaterial.  *See**Hartford HealthCare at Home, Inc.*, DAB No. 2787 at 9 (2017).  State agency surveyors make observations based on which the state agency may recommend that CMS impose enforcement remedies.  However, CMS, not the surveyor or state agency, determines noncompliance and imposes remedies.  *Id.* Thus, Petitioner could not reasonably rely on a surveyor’s statement (if made) promising to find the facility compliant.8

Page 11

In summary, I find that Petitioner’s own evidence and argument establish that it failed to maintain its sprinkler system free from corrosion and loading, which had the potential to cause more than minimal harm to its residents.  In the event of a fire, the sprinkler system could have malfunctioned, with life-threatening – if not fatal – consequences for Petitioner’s elderly and infirm residents who require multi-staff assistance to escape.  Accordingly, Petitioner was not in substantial compliance with 42 C.F.R. § 483.90(a)(6)(ii), (b) (Tag K353), and CMS was authorized to impose an enforcement remedy.

***b. Petitioner failed to comply substantially with the Medicare participation requirement at 42 C.F.R. § 483.90(b), (j)(1)(i) (Tag K914) (Electrical System) because it******failed to maintain and test the electrical outlets in residents’ rooms and maintain records in accordance with the applicable building and fire codes.***

The physical environment regulation states generally that “[t]he facility must be designed, constructed, equipped, *and maintained* to protect the health and safety of residents, personnel and the public.”  42 C.F.R. § 483.90 (emphasis added).  Subsection (j)(1)(i) imposes specific obligations upon a facility related to electrical systems.  Facilities must comply with the requirements set forth in the Standards for Health Care Facilities Code of the NFPA 99, 2012 edition, issued on August 11, 2011.  42 C.F.R. § 483.90(j)(1)(i).  The NFPA 99 “provides minimum requirements for health care facilities for the installation, inspection, testing, maintenance, performance, and safe practices for facilities, material, equipment, and appliances, including other hazards associated with the primary hazards.”  81 Fed. Reg. 26,872, 26,874 (May 4, 2016); 81 Fed. Reg. 63,860, 63,930 (Sept. 16, 2016).  Specifically, facilities must test electrical outlets in patient care rooms9 at least annually.  42 C.F.R. § 483.90(b), (j)(1)(i); 2012 NFPA 99, §§ 6.3.4.1.2, 6.3.4.1.3; CMS Ex. 16 at 2.  Facilities are also required to maintain records of the annual electrical outlet testing.  42 C.F.R. § 483.90(b), (j)(1)(i); 2012 NFPA 99, § 6.3.4.2.1.1; CMS Ex. 16 at 2.

CMS presented credible evidence that Petitioner failed to test and maintain the electrical outlets in its residents’ rooms.  Surveyor Chacon testified that Petitioner could not provide any evidence that it ever tested its electrical outlets.  CMS Ex. 17 ¶ 12.  During the revisit survey, Petitioner’s maintenance director and administrator both conceded that, at that time, Petitioner had no record of any outlet testing ever occurring in the facility.  CMS Ex. 17 ¶ 12; Tr. at 37.  I find that these facts establish a prima facie case that Petitioner failed to properly test or maintain its electrical system, in violation of 42 C.F.R.

Page 12

§ 483.90(j)(1)(i).  Accordingly, the burden of persuasion shifts to Petitioner to demonstrate by a preponderance of the evidence that it complied substantially with 42 C.F.R. § 483.90(j)(1)(i).  *Hillman*, DAB No. 1611 at 8.  I conclude that Petitioner has failed to meet that burden.

Petitioner produced no evidence disproving Surveyor Chacon’s observations on this issue.  Petitioner argues that it provided evidence to Surveyor Chacon showing that the “electrical systems were in fact *being*tested prior to the date of the resurvey.”  P. Post‐hrg. Br. at 3 (emphasis added).  As this wording suggests, the evidence to which Petitioner refers does not establish that Petitioner had *completed* all outlet testing by January 28, 2019.

At or about 4:58 PM on January 28, 2019, Petitioner’s maintenance director emailed Surveyor Chacon a copy of Petitioner’s “Annual Outlet T[]esting Log.”  CMS Ex. 34.  In the cover email, the maintenance director stated, “We were able to get started today.”  *Id.*at 1.  The log reflects that eight outlets were tested on “1-28-19.”  *Id.*at 2.  During IDR, Petitioner produced additional log pages showing that Petitioner had tested other outlets on dates after January 28, 2019.  CMS Ex. 14 at 12-20.  These logs showed that Petitioner did not complete the testing until February 8, 2019.  *Id.*at 20.  Thus, Petitioner failed to show that it completed testing the electrical system by the revisit survey.  Despite having been cited with a deficiency for failing to test the residents’ room outlets during the November life safety code survey, Petitioner had not started to test the electrical outlets until the day of the revisit.  This conclusion is supported by the testimony of Petitioner’s Administrator, who stated:  “Testing had been initiated and [the] surveyor was shown the documentation that testing was underway.”  P. Ex. 3 ¶ 5.  Petitioner could have taken steps earlier to test the electrical outlets, but failed to do so.

Petitioner again argues that it requested 90 days to complete the testing.  P. Post-hrg. Br. at 4.  However, I reject this argument for the same reasons discussed in the previous section of this decision.

I find that Petitioner’s failure to test or maintain its electrical system had the potential to cause more than minimal harm to its residents.  Any life-saving bedside care requiring a plug would be rendered useless by an electrical outlet that did not work.  Accordingly, Petitioner was not in substantial compliance with 42 C.F.R. § 483.90(b), (j)(1)(i) (Tag K914), and CMS was authorized to impose an enforcement remedy.

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***2. Petitioner failed to comply with Medicare participation requirements for resident health and safety because Petitioner failed to report Resident 2’s***10***fall with injury, failed to provide her with appropriate care planning and supervision to prevent falls, and failed to provide timely radiology services to diagnose her injury after her fall.***

CMS relies on the care Petitioner provided Resident 2 to support findings of noncompliance with multiple participation requirements.  In this section of my decision, I first recount the facts concerning Resident 2’s care.  I find these facts by a preponderance of the evidence based on my examination of the entire record.  I next explain how the facts I have found support the conclusion that Petitioner failed to comply substantially with the participation requirements at 42 C.F.R. §§ 483.12(c)(1), (4); 483.21(a)(1)-(3), 483.21(b)(1); 483.25(d)(1)-(2); and 483.50(b)(1).

**Resident 2.**  Resident 2 was an 80-year-old woman who was admitted to Petitioner’s facility on January 19, 2019.  CMS Ex. 18 at 1.  Resident 2 was admitted for inpatient rehabilitation from a hospital where she had been observed following an episode of hypoglycemia during which she had been found unresponsive.  CMS Ex. 18 at 61, 63; *see also*CMS Ex. 20 at 11, 60.  At the hospital, Resident 2 was diagnosed with a urinary tract infection, and was also evaluated for right shoulder pain, although x-rays were negative for an acute injury.11  CMS Ex. 18at 61; CMS Ex. 20 at 11.  Petitioner listed Resident 2’s admitting diagnoses as type 2 diabetes with hypoglycemia, urinary tract infection, unsteadiness on her feet, repeated falls, and weakness with abnormal and impaired gait and mobility, among others.  CMS Ex. 18 at 1; CMS Ex. 31 at 13.  A physical therapy evaluation noted that Resident 2 reported that, prior to her admission, she had fallen seven times at home.  CMS Ex. 19 at 49.

Petitioner completed a fall risk instrument for Resident 2 on which staff documented the following risk factors, among others:  the resident uses crutches, cane, or walker for ambulation; the resident exhibits impaired gait; the resident overestimates or forgets the limits of her ability to ambulate safely; and the resident is at risk for injury.  CMS Ex. 31 at 13-14.  Based on these risk factors, Resident 2 scored a 70 on the fall assessment.  *Id.*at 13; *see also*CMS Ex. 32 ¶ 6.  A score at or above 45 places a resident at high risk of falling.  CMS Ex. 31 at 14.  According to a Minimum Data Set (MDS) dated February 2, 2019, Resident 2 required extensive physical assistance for ambulation, toileting,

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transfers, eating, and stabilization.12  CMS Ex. 4 at 11‐12; *see also* CMS Ex. 32 ¶ 6.  Resident 2 was noted to use a walker or wheelchair for ambulation.  CMS Ex. 4 at 11.  In addition, the MDS documented that the resident’s Brief Interview for Mental Status (BIMS) score was 15, indicating that she was cognitively intact.13  *Id.*

Petitioner’s staff completed a baseline care plan for Resident 2, dated January 19, 2019, and countersigned by Petitioner’s MDS coordinator on January 20, 2019.14  CMS Ex. 18 at 5-6.  The baseline care plan for fall prevention consists of check boxes describing generic interventions, such as “[p]lace call bell within reach and educate to use.”  *Id.*at 5.  Although the form includes blank lines where other interventions could be written in, Petitioner did not add any interventions specifically tailored to Resident 2.  *Id.*;*see also* Tr. at 67-68.

A case manager note entered at or about 1:49 PM (13:49) on January 24, 2019, documents that Petitioner’s interdisciplinary team (IDT) held a care plan meeting at Resident 2’s bedside.  CMS Ex. 18 at 56.  The note states “[f]amily called to join [care plan] meeting.”  *Id.*I interpret this to mean that Resident 2’s family member(s) joined the meeting by telephone.

The comprehensive care plan for Resident 2 that is in evidence is dated as having been initiated and revised on February 18, 2019, which was after Resident 2 had been discharged from Petitioner’s facility.15  *See*CMS Ex. 19 at 28-47.  The care plan included the following interventions for fall prevention:

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Instruct resident to sit on side of bed for a few minutes when rising from a lying position
	Incontinence check freq[uently]
	Toileting plan – take to [bathroom] before and after . . . meals, on rising and at bed time and on each round . . .
	Educate resident to call for assist prior to ambulating
	Low Bed [with] mat Date applied [blank]
	Observe for [signs and symptoms] of side effects from drugs (dizziness, gait disturbance, weakness, sedation, change in mental status[)]
	Keep call light within reach
	Keep area free of clutter*        *        *

1-28-19 Resident education to call for help.  Therapy education to use call light and rolling walker
	2-7-19 Therapy screen
	2-10-19 x-rays, HospitalCMS Ex. 19 at 29-30.

On January 28, 2019 at 11:30 PM, one of Petitioner’s nurses saw Resident 2 ambulating in her room without her walker.16   CMS Ex. 18 at 51.  The nurse went into the room to help the resident back to bed.  *Id.* The nurse documented that Resident 2 sat on her bed and slid to the floor.  *Id.* The nurse noted no injuries to Resident 2.  *Id.*Following Resident 2’s fall on January 28, Petitioner’s staff completed a “Falls Committee Post Fall Interventions” form (post fall form).  CMS Ex. 19 at 1.  The post fall form listed the following new interventions:

Patient education to use call light for assistance
	Therapy screen
	Ensure/encourage patient to use . . . [rolling walker] during ambulation*Id.*

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On January 29, 2019, Resident 2 fell while away from the facility in the company of her son.  CMS Ex. 18 at 50.  Resident 2 was seen in the emergency room, but discharged back to the facility the same night, since she did not have any acute injury.  *Id.*

On February 7, 2019, at or about 3:43 PM (15:43), a physician assistant (PA) examined Resident 2.17  CMS Ex. 18 at 27-29.  At that time, the PA “expressed concern” that Resident 2 “continues with significant confusion.”  *Id.*at 28.  The PA further noted that Resident 2’s confusion (also referred to as “AMS” or altered mental state) may be related to her urinary tract infection or transient effects from her pain medications and ordered “[c]ontinue fall precautions.”  *Id.*at 29.

Later that same day (February 7), Resident 2 fell in a hallway while ambulating in her wheelchair.  *Id.*at 27.  A nursing note at 10:32 PM (22:32) documented that, after 7:45 PM (19:45) Resident 2 was trying to get out of bed, so a certified nurse aide (CNA) assisted her into her wheelchair and the resident was propelling herself in the halls.  *Id.*; *see also*CMS Ex. 19 at 7.  The resident told staff she was looking for her car because she needed to go buy milk.  She tried to stand up from the wheelchair and fell.  CMS Ex. 18 at 27; CMS Ex. 19 at 7. Following Resident 2’s February 7 fall, Petitioner’s staff again completed a post fall form.  CMS Ex. 19 at 2.  On the form, staff reported current interventions as educating Resident 2 to use the call light and giving antibiotics to treat her urinary tract infection.  *Id.* The only new intervention noted was to “offer snack.”  *Id.*

In a health status note entered at or about 6:43 PM (18:43) on February 10, 2019, one of Petitioner’s nurses recorded that Resident 2 was confused as to time and place, stating “close the door, those kids keep running in and out of here” although no children were in the facility at the time.  CMS Ex. 18 at 25.  Then, at approximately 7:30 PM, Resident 2 sustained an unwitnessed fall in her room.  *Id.*(incident note timed 20:53); *see also*CMS Ex. 31 at 37.  When staff found Resident 2 on the floor, she explained she was trying to “go[] to her car.”  CMS Ex. 18 at 25; CMS Ex. 31 at 37.  Staff noted no visible injuries and returned the resident to bed.  CMS Ex. 18 at 25; CMS Ex. 31 at 37.  Resident 2 complained of left arm and bilateral hip pain, which prompted staff to notify Resident 2’s physician and family, order a stat x-ray, and offer Resident 2 pain medication.  CMS Ex. 18 at 25; CMS Ex. 31 at 37.  Resident 2 initially declined pain medication, but accepted it approximately five hours later, after her pain worsened.  CMS Ex. 18 at 24.  Sometime between 1:45 and 2:06 AM, staff followed up on the status of the x-ray but were informed that no one had read the x‐ray results yet “due to the busy weekend schedule.”  CMS Ex. 18 at 24.  At or around 9:30 AM, Petitioner’s staff received the x‐ray result and notified Resident 2’s medical provider, who ordered Resident 2 to be transferred to the

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emergency room.  CMS Ex. 18 at 22, 24.  Resident 2 was diagnosed with bilateral hip fractures.  CMS Ex. 18 at 24; *see also*CMS Ex. 32 ¶ 9.

At the time of the incidents at issue, Petitioner maintained a report titled “Incidents by Incident Type” (incident log).  CMS Ex. 23.  The incident log records “Witnessed Fall Incidents” and “Un-witnessed Fall Incidents,” among other types of incidents.  *Id.*at 1.  None of the falls Resident 2 experienced while in the facility appear on Petitioner’s incident log.18  *Id.*

**State agency complaint survey.**  On February 27-28, 2019, the state agency conducted a complaint survey at the facility to determine Petitioner’s compliance with Medicare participation requirements for resident health and safety.  CMS Ex. 4.  The state agency scheduled the survey to investigate a complaint from Resident 2’s son concerning Resident 2’s repeated falls at Petitioner’s facility.  CMS Ex. 29; *see also*CMS Ex. 32 ¶ 5.  State agency surveyor Kathryn Hill, RN (Surveyor Hill), was a member of the survey team and was present at Petitioner’s facility each day of the survey.  CMS Ex. 29 at 3.  During the survey, she gathered and reviewed records, observed residents and staff, and conducted interviews.  CMS Ex. 29; CMS Ex. 32.

Surveyor Hill testified that the documents offered as CMS exhibits in this case are true and correct copies of the documents she collected and the notes she took during the survey.  CMS Ex. 32 ¶ 3.  Unless I explicitly state otherwise, I find it more likely than not that the statements and observations in the statement of deficiencies for the survey accurately record what Surveyor Hill observed and heard during the survey.

At or about 12:17 PM on February 27, 2019, Petitioner’s Director of Nursing (DON) brought Surveyor Hill additional documentation regarding Resident 2’s falls.  CMS Ex. 4 at 15.  At that time the DON acknowledged that Resident 2’s falls were not included on the facility’s incident log.  *Id.*; *see also*CMS Ex. 27 at 3-4; CMS Ex. 23.  The DON further stated that the facility did not report Resident 2’s fall on February 10 to the state agency because the prior DON did not believe it was a reportable event.  CMS Ex. 4 at 5‐6; *see also*CMS Ex. 27 at 4, 7.  Petitioner’s administrator also confirmed that, if the incident was not on the incident log, “there was nothing to report.”  CMS Ex. 27 at 7.

At or about 2:14 PM on February 27, 2019, Surveyor Hill interviewed a Unit Manager, who stated, “[a]bout 2 weeks after coming to us [Resident 2] became very confused.”  CMS Ex. 4 at 15; *see also*CMS Ex. 27 at 7.

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At or about 9:30 AM on February 28, 2019, Surveyor Hill interviewed the DON and the Director of Case Management for Petitioner’s corporate parent.19  CMS Ex. 27 at 4, 6; *see also*CMS Ex. 4 at 15.  During that interview, the DON confirmed that Resident 2’s care plan was dated as initiated after the resident had been transferred to the hospital.  CMS Ex. 27 at 4.  However, the Director of Case Management stated that the care plan was initiated on January 21, 2019.  *Id.*;*see also*CMS Ex. 4 at 15.  During another interview at or about 11:13 AM on February 28, 2019, the DON and the Director of Case Management stated that floor mats had not been ordered for Resident 2 because previously she had been able to ambulate in her room with her walker.20  CMS Ex. 4 at 18; *see also*CMS Ex. 27 at 6.  The interview further revealed that the facility did not have an order to put Resident 2’s bed in a low position.  CMS Ex. 4 at 18; *see also*CMS Ex. 27 at 6.

At or about 3:37 PM on February 28, 2019, Surveyor Hill interviewed Petitioner’s Director of Therapy Services, who explained that Petitioner’s Fall Committee met after Resident 2’s falls on January 28 and February 7, 2019.  CMS Ex. 4 at 14.  According to the Director, the facility implemented new interventions after the falls.  Following the January 28 fall, the new interventions were “[p]atient education to use call light for assistance, [t]herapy screen, [and] ensure and encourage patient to use rolling walker with ambulation.”  *Id.*; *cf.*CMS Ex. 19 at 1.  Following the February 7 fall, the new intervention was to offer Resident 2 a snack.  CMS Ex. 4 at 14; *cf.*CMS Ex. 19 at 2.

Resident 2 sustained three falls at Petitioner’s facility:  one on January 28, 2019, one on February 7, 2019, and one on February 10, 2019.  CMS Ex. 32 ¶¶ 7-9.  In addition, Resident 2 sustained a fall while away from Petitioner’s facility on January 29, 2019, of which Petitioner was aware.  CMS Ex. 18 at 51.  During the complaint survey, Petitioner’s DON acknowledged that Resident 2’s care plan was dated after the resident had been discharged from the facility.  CMS Ex. 27 at 4.  The DON further conceded that the facility had not investigated Resident 2’s February 10, 2019 fall.  CMS Ex. 4 at 3; CMS Ex. 32 ¶ 15.  Staff also provided inconsistent reports of whether Petitioner implemented interventions such as a low bed position or a mat next to Resident 2’s bed.  CMS Ex. 32 ¶ 11; CMS Ex. 4 at 15; CMS Ex. 27 at 6.  Based on these findings and observations, the state agency concluded that Petitioner failed to comply substantially with the Medicare participation requirements governing accident hazards and adequate supervision to prevent accidents (42 C.F.R. § 483.25(d)(1)-(2) (Tag F689)).  CMS Ex. 4 at 9.  CMS concurred in the finding of noncompliance (CMS Ex. 6 at 1-2) and additionally determined that Petitioner failed to comply with the participation

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requirements governing care planning (42 C.F.R. § 483.21(a)(1)-(3), (b)(1) (Tags F655 and F656)).  CMS Br. at 2-3 n.1.

**Testimonial evidence.**  During the hearing in this case, Surveyor Hill testified, based on her training as a registered nurse and a surveyor, regarding her understanding of what SNFs must do to comply with Medicare participation requirements.  Concerning the care planning process, Surveyor Hill opined that, when SNFs receive residents with a history of falls, facilities need to ensure specific interventions are put in place (in the care plan) to prevent future falls.  Tr. at 61.  After any fall, the facility must complete a fall screen.  Tr. at 67.

Surveyor Hill testified that Resident 2’s care plan did not contain specific interventions in response to her needs or risks and was not updated after her falls or when she started having increased confusion.  Tr. at 68, 73-74.  Surveyor Hill testified that Petitioner did not modify Resident 2’s care plan until after she was discharged from the facility.  Tr. at 70.  Resident 2 also sustained multiple falls, none of which was addressed by modifying her care plan.  CMS Ex. 32 ¶¶ 7-8, 10.  Surveyor Hill testified that Petitioner failed to conduct assessments following Resident 2’s falls to determine whether the care plan interventions in place were effective or whether Petitioner needed to take additional steps to prevent Resident 2 from falling again.  *Id*.

Concerning facilities’ obligations to provide adequate supervision and assistance devices to prevent residents from experiencing accidents, such as falls, Surveyor Hill testified that one fall is too many when a resident is a fall risk.  Tr. at 73.  Any interventions which restrict a resident’s mobility, even when designed to prevent accidents, require a physician’s order.  Tr. at 62-63.  In Resident 2’s case, there was no physician’s order to place her bed in the lowest position possible.  Tr. at 62.  Petitioner did not note any change in Resident 2’s condition, report her falls in the fall log, conduct fall screens, or provide new interventions following Resident 2’s falls, even when Resident 2 had become confused and not oriented to place or person.  Tr. at 67, 73-74.  To the contrary, Petitioner only started investigating Resident 2’s falls after the complaint survey had begun and could not identify which staff member was caring for Resident 2 on the night she sustained bilateral hip fractures when she had an unwitnessed fall.  Tr. at 71, 78.  Petitioner failed to produce any documentation that it investigated Resident 2’s falls or evaluated whether the interventions it had in place were sufficient to prevent future falls.  Tr. at 76-78, 83.

In support of its position that it was in substantial compliance, Petitioner provided the written direct testimony of its administrator, Lisa Brooks.  P. Ex. 3.  Administrator Brooks testified that the facility is unable to evaluate the circumstances of falls that occur

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outside of the facility.21  P. Ex. 3 ¶ 6.  Because Resident 2 was already receiving physical and occupational therapy, Administrator Brooks opined that additional screening by therapy following her fall was unnecessary.  *Id.* However, following Resident 2’s January 29, 2019 fall, Petitioner did add a new intervention in the form of encouraging Resident 2 to use her rolling walker during ambulation.  *Id.*Administrator Brooks testified that all interventions provided to Resident 2 can be found in her care plan, and “[a]ll incidents for Resident 2 would be documented in the incident log.”  *Id*.

In general, I accord less weight to Administrator Brooks’ testimony and more weight to Surveyor Hill’s testimony, particularly as it relates to the standard of nursing care required of SNFs.  Surveyor Hill has 25 years of experience and training as a registered nurse (CMS Ex. 32 ¶ 2), which qualifies her to opine on matters involving nursing care, while Ms. Brooks’ experience as a nursing home administrator does not.

Nevertheless, I reject several of Surveyor Hill’s factual conclusions.  Specifically, I find it is more likely than not that Petitioner created a fall prevention care plan for Resident 2 after January 20, 2019 (the date of Resident 2’s baseline care plan) and before February 18, 2019 (the date that appears on the printed copy of Resident 2’s comprehensive care plan).  I am unable to make a finding as to the precise date on which the fall prevention care plan was initiated.  Resident 2’s medical record documents that Petitioner’s IDT held a care plan meeting at Resident 2’s bedside on January 24, 2019.  CMS Ex. 18 at 56.  In Petitioner’s IDR request, Petitioner’s administrator stated that Resident 2’s fall prevention care plan was created on January 29, 2019.  CMS Ex. 31 at 5, 34.  Narrowing the timeframe, I find it more likely than not that the fall prevention care plan was initiated sometime between January 24 and January 29, 2019.  I reach this conclusion because the fall prevention care plan includes dated references to the interventions added after Resident 2 fell on January 28, 2019.  *Compare*CMS Ex. 19 at 1 *with id.*at 29-30.

For the same reasons (i.e., the care plan in evidence contains dated references to additional interventions, which are corroborated by the post fall forms completed by the Falls Committee), I reject Surveyor Hill’s conclusion that Petitioner did not add any additional interventions to the care plan following Resident 2’s falls.  However, my disagreement with Surveyor Hill on these points does not lead me to conclude that Petitioner was in substantial compliance with Medicare participation requirements.  As I explain more fully below, I find that Petitioner did not meaningfully dispute CMS’s

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conclusion that Petitioner failed to report Resident 2’s February 10 fall to the state agency.  Next, the interventions Petitioner added to Resident 2’s care plan did not adequately address her needs.  Finally, because the care-planned interventions were inadequate responses to Resident 2’s changing medical condition – in particular, her increased confusion – Petitioner also failed to provide Resident 2 with adequate supervision and assistance devices to prevent her from sustaining additional falls, which were foreseeable.

***a. Petitioner failed to comply substantially with the Medicare participation requirements at 42 C.F.R. § 483.12(c)(1), (4) (Tag F609) because it failed to investigate and report to the state agency Resident 2’s fall with injury.***

When a resident sustains “injuries of unknown source” that “result in serious bodily injury,” 42 C.F.R. § 483.12(c)(1) requires the facility to report the incident within two hours to the administrator of the facility and to the state agency.  The regulations also require that facilities investigate such events, and section 483.12(c)(4) requires the facility to report the results of its investigation to the administrator and to the state agency within five days of the incident.

As I have described above, Resident 2 sustained an unwitnessed fall on February 10, 2019, following which she was diagnosed with bilateral hip fractures.  Petitioner argues that it investigated Resident 2’s fall and determined that the fall was not the result of abuse.  P. Post-hrg. Br. at 6.  Petitioner’s IDR submission included a copy of an incident report dated February 12, 2019, and an undated timeline, both of which describe aspects of Resident 2’s fall on February 10.  CMS Ex. 31 at 38, 39.  The IDR documents also include statements alleged to have been prepared by staff who were caring for Resident 2 on February 10.  *Id.*at 5, 52, 53.  Neither of the staff statements is dated.  To the extent Petitioner contends these documents demonstrate that it complied with 42 C.F.R. § 483.12(c)(1), (4), I disagree.

Even if I accepted that the documentation just described constituted evidence of an adequate investigation – a finding I do not make – Petitioner does not allege that it ever reported the results of the investigation to the state agency, let alone that it did so within five days of the incident as the regulation requires.  To the contrary, Petitioner’s administrator and DON acknowledged that staff had not reported the incident.22  CMS Ex. 4 at 5-6; *see also*CMS Ex. 27 at 3-4, 7.  Those who made the decision that reporting was not required apparently did so because they believed the facility was not required to report accidents as adverse events.  *See*CMS Ex. 4 at 5-6; CMS Ex. 27 at 7.

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However, a facility’s obligation to investigate and report to the state agency does not depend on whether an incident is substantiated as abuse.  *The Bridge at Rockwood*, DAB No. 2954 at 28 (2019); *see also Singing River Rehab. & Nursing Ctr.*, DAB No. 2232 at 8 (2009) (facilities may not decide whether an incident is reportable based on internal pre-screening).23  Thus, by failing to report that Resident 2 had sustained an unwitnessed fall resulting in serious injury, Petitioner was out of compliance with 42 C.F.R. § 483.12(c)(1), (4).  Petitioner’s noncompliance was substantial because it placed residents at risk for more than minimal harm.  *See, e.g.,**Rosewood Care Ctr. of Swansea*, DAB No. 2721 at 12 (2016), *aff’d sub nom.* *Rosewood Care Ctr. of Swansea v. Price*, 868 F.3d 605 (7th Cir. 2017) (quoting with approval the administrative law judge’s conclusion that failing to investigate and report as required by regulation risks “leaving residents unprotected against additional instances of abuse, an extremely dangerous situation for the frail and vulnerable individuals who resided at Petitioner’s facility.”).

***b. Petitioner failed to comply substantially with the Medicare participation requirements at 42 C.F.R. § 483.21(a)(1)-(3) (Tag F655) (Baseline Care Plan) and at 42 C.F.R. § 483.21(b)(1) (Tag F656) (Comprehensive Care Plan) because it failed to ensure that Resident 2 received person-centered baseline and comprehensive care plans.***24

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Within 48 hours of a resident’s admission, a SNF must develop and implement a baseline care plan for the resident, which includes “the minimum healthcare information necessary to properly care for [the] resident,” such as physician and dietary orders, therapy and social services, and any other goals or recommendations.  42 C.F.R. § 483.21(a).  Thereafter, SNFs must 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.  42 C.F.R. § 483.21(b)(1).  The comprehensive care plan must be developed within seven days after completion of the comprehensive assessment, be prepared by an interdisciplinary team, and be reviewed and revised by the interdisciplinary team after each assessment.  42 C.F.R. § 483.21(b)(2)(i)-(iii).  SNFs must assess residents “promptly [i.e., within 14 days] after a significant change in the resident’s physical or mental condition.”  42 C.F.R. § 483.20(b)(2)(ii).

Here, CMS argues Resident 2’s January 19, 2019 baseline care plan failed to include the necessary, personalized instructions to provide effective and person-centered care that met professional standards of quality and interventions to prevent Resident 2 from sustaining falls.  CMS Post-hrg. Br. at 7.  I agree.  Resident 2’s baseline care plan included only generic interventions, such as “[p]lace call bell within reach and educate to use.”  CMS Ex. 18 at 5.  Based on Resident 2’s impaired gait, unsteadiness, history of falls, and confusion identified during her admitting assessment, Petitioner knew that Resident 2 required supervision and assistance while ambulating and should have included this information in her baseline care plan.  Thus, CMS made a prima facie case that Petitioner failed to comply with 42 C.F.R. § 483.21(a).  Similarly, CMS offered evidence that the interventions in Resident 2’s comprehensive care plan did not adequately meet her medical, nursing, and mental and psychosocial needs.  *See, e.g.,*CMS Ex. 32 ¶ 12.  These facts are sufficient to establish a prima facie case that Petitioner failed to comply substantially with 42 C.F.R. § 483.25(b)(1).  Accordingly, the burden of persuasion shifts to Petitioner to demonstrate by a preponderance of the evidence that it complied substantially with 42 C.F.R. § 483.25(a)(1)-(3), (b)(1).  *Hillman*, DAB No. 1611 at 8.  I conclude that Petitioner has failed to meet that burden.

Petitioner argues that Resident 2 was cognitively intact and that there is “no question” as to her care plan.  P. Post-hrg. Br. at 5.  Petitioner argues that the interventions of placing Resident 2’s bed in the lowest position and encouraging her to use her rolling walker when ambulating were sufficient.  P. Br. at 4-5.  During IDR, Petitioner argued there was a care plan actually in place and being used for the duration of Resident 2’s stay, as evidenced by a January 24, 2019 progress note that specifically indicates a care plan meeting occurred at Resident 2’s bedside with the IDT, Resident 2, and Resident 2’s family.  CMS Ex. 31 at 4-5; *see also*CMS Ex. 18 at 56.  Also during IDR, Petitioner explained that a staff member was auditing Resident 2’s final care plan on February 18, 2019, which is why that is the date of record on the document.  CMS Ex. 31 at 5.

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Petitioner argues that it took all reasonable measures to prevent injury through Resident 2’s initial and comprehensive care plans.  P. Post-hrg. Br. at 5.

Petitioner’s arguments do not address the allegation that Resident 2’s baseline care plan was deficient.  Resident 2 was admitted with a history of falls at home, an impaired gait, and unsteadiness, but received a generic interim care plan without any resident-specific interventions other than the initial goals to “return to prior level,” “return home,” and “walk safely.”  CMS Ex. 18 at 4-6.  I therefore conclude that Petitioner failed to prove by a preponderance of the evidence that it substantially complied with 42 C.F.R. § 483.25(a)(1)-(3).

For the reasons described above, I find that the record supports Petitioner’s contention that it developed a comprehensive care plan for Resident 2 earlier than February 2, 2019.  However, the evidence shows that the comprehensive care plan Petitioner developed did not include person-centered interventions that adequately addressed Resident 2’s needs.  In particular, and contrary to Petitioner’s argument that the resident was cognitively intact, Resident 2 was noted to have periods of confusion on admission to Petitioner’s facility.  CMS Ex. 18 at 63.  Resident 2’s confusion only increased during the time she resided at the facility.  *Id.*at 25-27.  On February 7, 2019, a PA examined Resident 2 and opined that she may be unsafe for discharge due to her confusion.  *Id.*at 28-29.  That same day, the resident sustained a fall when she tried to stand up from her wheelchair unassisted.  *Id.*at 27.  The resident explained that she was looking for her car so she could go buy milk.  *Id.* On February 9, 2019, at 7:23 PM (19:23) one of Petitioner’s nurses noted that Resident 2 was “[a]lert with confusion, confusion increases in the PM.”  *Id.*at 26.  A note on February 10, 2019, at 6:43 PM (18:43) documented that Resident 2 saw children in her room when no children were present.  *Id.*at 25.

Petitioner’s records thus document that, at least as of February 7, 2019, staff were aware that Resident 2 experienced a fall in which her confusion played a role (i.e., the resident fell while trying to get up, claiming she had to go to her car to buy milk).  Yet, after the resident’s February 7 fall, Petitioner’s Falls Committee proposed only one new intervention:  “Offer snack.”  CMS Ex. 19 at 2.  It is difficult to see how offering a snack would effectively prevent a confused resident from attempting to stand unassisted.  Moreover, the Falls Committee left undisturbed the prior interventions of educating the resident to use the call light to request assistance and having her use her rolling walker for ambulation.  *Id.*; *see also id.*at 29-30.  However, as the events of February 7 made plain, Resident 2 was too confused to remember to use the call light or her rolling walker.  CMS Ex. 18 at 27 (prior to her fall, the resident attempted to get out of bed without assistance).  In summary, Petitioner’s staff knew that Resident 2 had gotten out of bed at night and tried to find her car to leave the facility, without using her rolling walker or her call light, which made it more likely – not less so – that she might try again as her confusion worsened.

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Based on Resident 2’s admitting diagnoses and history of falls as reported in Petitioner’s own records, it was foreseeable that Resident 2 would fall again without proper care planning or supervision.  *See, e.g.*, *Cal Turner Extended Care Pavilion*, DAB No. 2384 at 15-16 (2011), *rev’d on other grounds,*2012 WL 4748146 (6th Cir. 2012) (“likelihood was enhanced by the fact that [Petitioner] knew from its own assessments that [the resident] was weak and had difficulty ambulating and lack of coordination . . . and needed staff assistance with ambulating and transfers.”).  Petitioner’s records contained information that should have prompted Petitioner to consider adding additional interventions to Resident 2’s care plan, such as more frequent monitoring or a bed or chair alarm, to prevent similar accidents from occurring.  Yet, Petitioner failed to document that it even considered such additional interventions.

Petitioner identified Resident 2 as a fall risk in a baseline care plan and created a comprehensive care plan with a stated goal that “[f]all related injuries will be decreased.” CMS Ex. 19 at 29.  Nevertheless, Resident 2 sustained falls on January 28, 2019 (CMS Ex. 18 at 49-51), February 7, 2019 (*Id.*at 27), and February 10, 2019 (*Id.* at 25).  As a result of her third fall, Resident 2 fractured both hips.  Because Petitioner did not create or update Resident 2’s care plans with effective person-centered interventions, Petitioner was not able to prevent Resident 2 from sustaining actual harm:  a fall-related injury.  Therefore, Petitioner was not in substantial compliance with 42 C.F.R. § 483.21(a)(1)-(3) (Tag F655) and 42 C.F.R. § 483.21(b)(1) (Tag F656), and CMS was authorized to impose an enforcement remedy.  Further, many of the same circumstances support CMS’s finding that Petitioner failed to provide adequate supervision and assistance devices to prevent Resident 2 from falling, as I discuss in the following section of this decision.  ****

***c. Petitioner failed to comply substantially with 42 C.F.R. § 483.25(d)(1)-(2) (Tag F689) because it failed to ensure that Resident 2 received adequate supervision and assistance devices to prevent falls.***25

The quality of care regulation, 42 C.F.R. § 483.25, states generally that, “[b]ased on the comprehensive assessment of a resident, the facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the

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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.

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 Nursing Ctr.*, 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”)), *aff’g* *Woodstock Care Ctr.*, DAB No. 1726 (2000).26 Facilities are given “the flexibility to choose the methods” they use to provide supervision or assistive devices to prevent accidents, so long as the chosen methods constitute an “adequate” level of supervision for a particular resident’s needs.  *Windsor Health Care Ctr.,*DAB No. 1902 (2003) (2003 WL 23142160 at *3), *aff’d sub nom. Windsor Health Ctr. v. Leavitt,*127 F. App’x 843 (6th Cir. 2005).  The mere occurrence of an accident does not, by itself, prove that a facility provided inadequate supervision.  *Lake Park Nursing & Rehab. Ctr.*, DAB No. 2035 (2006) (2006 WL 2382924 at *5).  However, when “an accident does occur, the circumstances surrounding an accident (or apparent accident) may support an inference that the facility’s supervision of a resident was inadequate.”  *Id.*(citing *St. Catherine’s Care Ctr. of Findlay, Inc.*, DAB No. 1964 (2005)).

As I have found above, CMS presented evidence that, at the time of the complaint survey, the care plans Petitioner put in place for Resident 2 did not identify adequate

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interventions to ensure Resident 2 would not fall and injure herself.  In addition, after
Resident 2 fell on January 28 and 29, 2019,27 Petitioner did not evaluate the circumstances surrounding the falls to determine whether additional interventions were needed to avert future falls.  Then, on February 7, 2019, Resident 2 sustained a fall, which Petitioner did not investigate.  The only documented response to Resident 2’s second fall was to offer her a snack.  Finally, on February 10, 2019, Resident 2 sustained an unwitnessed fall, this time sustaining bilateral hip fractures.  I find that these facts establish a prima facie case that Petitioner failed to comply substantially with 42 C.F.R. § 483.25(d)(1)-(2).  Accordingly, the burden of persuasion shifts to Petitioner to demonstrate by a preponderance of the evidence that it complied substantially with 42 C.F.R. § 483.25(d)(1)-(2).  *Hillman*, DAB No. 1611 at 8.  I conclude that Petitioner has failed to meet that burden.

Petitioner does not dispute that Resident 2 fell multiple times while residing at the facility.  P. Post-hrg. Br. at 4-5.  Petitioner does not address any change in Resident 2’s environment or cognitive status.  *Id*.  Instead, Petitioner alleges generally that its staff checks on residents throughout the day, encourages residents to contact staff for assistance, and that Petitioner was not responsible for any man-made hazards or lack of supervision.  *Id.*at 4.  Petitioner relies on Resident 2’s initial BIMS score of 15 to argue that she was cognitively intact and that Petitioner took all reasonable measures to prevent injury through her initial care plan and comprehensive care plan.  *Id.* at 5.  Petitioner contends its care of Resident 2 complied with the regulatory requirements imposed by 42 C.F.R. § 483.25(d)(1)-(2).  *Id.*

For many of the reasons explained in the prior section of this decision, the record developed before me demonstrates that Petitioner did not take “all reasonable measures” to protect Resident 2 from experiencing accidents.  *See Briarwood Nursing Ctr.*, DAB No. 2115 at 11.  As such, Petitioner failed to “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) (internal quotation marks omitted) (citing *Century Care of Crystal Coast*, DAB No. 2076 at 6-7 (2007), *aff’d sub nom. Century Care of Crystal Coast v. Leavitt*, 281 F. App’x 180 (4th Cir. 2008)).

Petitioner argues that the interventions of placing Resident 2’s bed in the lowest position and encouraging her to use her rolling walker when ambulating were sufficient to meet the participation requirements under 42 C.F.R. § 483.25(d)(1) and (2).  P. Br. at 4-5.  However, Petitioner failed to prove that it in fact placed Resident 2’s bed in the lowest

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position.  For example, there is no record that Resident 2’s physician ever ordered this intervention and the implementation date was left blank on Resident 2’s care plan.  *See*CMS Ex. 19 at 29.  Similarly, the evidence is conflicting as to whether Petitioner placed mats next to Resident 2’s bed.  *See*CMS Ex. 32 at ¶ 11; *see also*CMS Ex. 4 at 15, 18; CMS Ex. 27 at 6.  I therefore do not find it more likely than not that these interventions were in place.  Yet, even if Petitioner had implemented a low bed and floor mats, these interventions do not address Resident 2’s progressively increasing confusion, which is well-documented in Petitioner’s records.

As I have already described, Resident 2 was admitted to Petitioner’s facility with periods of confusion.  CMS Ex. 18 at 63.  However, by February 7, 2019, Resident 2’s confusion had increased to the point that the PA was concerned she could no longer be discharged safely.  *Id*. at 28.  Moreover, later that same day Resident 2 experienced a fall in which her confusion played a role (i.e., the resident fell while trying to get up, claiming she had to go to her car to buy milk).  *Id.*at 27.  However, Petitioner has presented no evidence that it took steps to provide Resident 2 with increased supervision to address her confusion.  To the contrary, Petitioner apparently deemed it adequate to remind Resident 2 to use her call light to ask for assistance with transfers and to use her rolling walker when ambulating.  *See, e.g.,*CMS Ex. 19 at 1-3; *see also id.*at 29-30.  Petitioner persisted in these interventions, knowing that Resident 2 had gotten out of bed at night and tried to find her car to leave the facility, without using her rolling walker or her call light.  Resident 2’s behavior made it more likely – not less so – that she might try again as her confusion worsened.  There is no evidence that Petitioner evaluated whether a bed alarm during the evenings or more frequent monitoring by staff might prevent similar accidents from occurring.  Therefore, despite Petitioner’s arguments to the contrary, it did not take all reasonable measures to protect Resident 2 from accidents.  *See Briarwood Nursing Ctr.*, DAB No. 2115 at 11.

As was foreseeable based on Resident 2’s previous falls, she sustained a third fall, fracturing both hips.  Accordingly, because Petitioner’s noncompliance caused actual harm to a resident, Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2) (Tag F689), and CMS was authorized to impose an enforcement remedy.

***d. Petitioner failed to comply substantially with Medicare participation requirements at 42 C.F.R. § 483.50(b)(1)(i)-(ii) (Tag F776) (Radiology Services) because Petitioner******failed to ensure that Resident 2 received radiology services in a timely manner.***

A SNF is required to provide or obtain diagnostic services, including radiology, to meet its residents’ needs.  42 C.F.R. § 483.50(b)(1).  The facility is responsible for both the

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quality and the timeliness of the services.  *Id.* The obligation is the same, whether the facility provides the services directly or under a contractual arrangement.  *Id.*

Petitioner argues that it called the radiology contractor several times trying to obtain the x-ray results, and the fact that its third-party contractor failed to provide timely results one time does not constitute a violation of 42 C.F.R. § 483.50(b).  P. Post-hrg. Br. at 6.  Petitioner also argues that its staff lacked the expertise and equipment to provide the radiology services itself and was therefore dependent on its third-party contractor to provide the services.  P. Br. at 7.  Petitioner additionally argues that its staff monitored Resident 2 for signs of pain and distress, and maintains that Resident 2 did not experience any.  *Id.* at 8.  I take the latter argument to suggest that Resident 2 was not harmed by the delay.

Petitioner’s arguments misread the applicable regulations and misstate Resident 2’s medical record.  First, 42 C.F.R. § 483.50(b)(1) is clear on its face that a SNF cannot evade responsibility for providing timely radiology services by shifting blame to its third‐party contractor.  This conclusion is reinforced by the language of 42 C.F.R. § 483.70(g), which provides:

(1) If the facility does not employ a qualified professional person to furnish a specific service to be provided by the facility, the facility must have that service furnished to residents by a person or agency outside the facility under an arrangement described in section 1861(w) of the Act . . . .

(2) Arrangements as described in section 1861(w) of the Act or agreements pertaining to services furnished by outside resources must specify in writing that *the facility assumes responsibility for* –

(i) Obtaining services that meet professional standards and principles that apply to professionals providing services in such a facility; and

(ii) *The timeliness of the services*.

42 C.F.R. § 483.70(g) (emphasis added).  As these provisions make clear, it is the SNF’s responsibility to ensure that services provided under arrangements with outside resources are timely.  I therefore reject Petitioner’s contention that it cannot be found noncompliant based on the conduct of its contractor.

I similarly reject Petitioner’s contention that Resident 2 was not harmed by the delay in reading her x-ray results.  The resident fell at approximately 7:30 PM, but the x-rays were

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not ordered until approximately 9:15 PM.  CMS Ex. 18 at 25.  While Resident 2 initially refused to take pain medications at approximately 9:25 PM, by 1:45 the following morning, Resident 2 reported she was “hurting all over” and staff administered Tramadol.  *Id.* at 24-25.  When notified at approximately 2:06 AM that the third-party contractor’s radiologist was unable to read the x-ray due to the “busy weekend schedule,” staff did not notify Resident 2’s physician.  *Id.* at 24.  By 4:20 AM, the x-ray results still had not been received, and Resident 2 was still complaining of pain.  *Id*.  Resident 2’s pain complaints were significant enough that staff supplemented her Tramadol with Tylenol.  *Id.*  Finally, at 9:35 AM, nearly 14 hours after Resident 2’s fall, staff finally received the x-ray results.  *Id.*  Resident 2’s physician ordered her to the emergency room immediately.  *Id.*  Thus, Resident 2’s progress notes do not support Petitioner’s argument that she did not experience any pain or distress.  To the contrary, the evidence shows Resident 2 expressed increasing complaints of pain as the delay wore on.

As a result of her third fall, Resident 2 sustained hip fractures that required hospitalization.  Because Petitioner did not ensure Resident 2 received timely radiology services, Resident 2 experienced a delay in treatment for a fall-related injury she sustained at Petitioner’s facility.  Contrary to Petitioner’s argument, Resident 2 experienced increasing pain during the delay.  This represented actual harm.  Therefore, Petitioner was not in substantial compliance with 42 C.F.R. § 483.50(b)(1) (Tag F776), and CMS was authorized to impose an enforcement remedy.  I next consider whether, based on the deficiencies I have sustained above, the CMP amounts are reasonable.  ****

***3. The per-day CMPs imposed are reasonable.***

I am authorized to review CMS’s finding of substantial noncompliance for which it imposes an enforcement remedy.  42 C.F.R. § 498.3(b)(13).  I may *not* review CMS’s choice of remedy nor the factors it considered in determining the remedy.  42 C.F.R. §§ 488.408(g)(2), 498.3(d)(14); *Beverly Health & Rehab. Servs., Inc. v. Thompson*, 223 F. Supp. 2d 73, 111 (D.D.C. 2002) (it is not within the court’s province to substitute its judgment for that of the agency in determining what remedy to impose).  Having found that Petitioner was out of substantial compliance, my review is limited to deciding whether the CMPs are reasonable.

I evaluate whether a CMP is reasonable by applying 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.  The absence of culpability is not a mitigating factor.  The factors listed in § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  Unless a facility contends that a particular regulatory factor does not

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support the CMP amount that CMS proposed, I 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.  The upper range of a CMP, $6,524 to $21,393 per day, is reserved 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).28  The lower range of a CMP, $107 to $6,418 per day, is reserved 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).  In assessing the reasonableness of a CMP amount, I consider 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 §§ 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*, DAB No. 2186 at 28-29.

Other than arguing that the facility’s noncompliance, if any, did not cause actual harm, Petitioner does not argue that any particular regulatory factor supports a reduction of the CMP amounts proposed by CMS.  P. Br. at 8-9; P. Post-hrg. Br at 6.  For that reason alone, I could conclude the CMP amounts are reasonable.  *See Coquina Ctr.*, DAB No. 1860.  However, I have reviewed the regulatory factors and explain why I find that they support a conclusion that each of the per-day CMP amounts are reasonable.

***a. A CMP of $315 per day from November 28, 2018 through February 9, 2019, is reasonable in amount and duration.***

In this case, CMS imposed a $315 per-day CMP for 74 days beginning November 28, 2018 and continuing through February 9, 2019.  Because I have determined that Petitioner was out of substantial compliance at the non-immediate jeopardy level, I determine *de novo* whether a CMP of $315 per day for 74 days of noncompliance (November 28, 2018 through February 9, 2019) is reasonable, based on the factors enumerated in the regulations.

Applying the regulatory factors, I find that Petitioner’s noncompliance with the life safety code requirements in this case was serious.  Since at least August of 2018, over 309 of Petitioner’s sprinkler heads were at serious risk of malfunction, putting Petitioner’s residents at risk for more than minimal harm.  Petitioner could not provide any evidence

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that it had ever tested any of the residents’ rooms’ electrical outlets.  Petitioner argues that these problems pre-dated its ownership and it spent a significant amount of money to bring the facility into compliance.  *See* P. Pre-hrg. Br. at 3, 8; CMS Ex. 14 at 4.  That Petitioner may have acquired the facility with existing deficiencies and expended resources to correct the problems are not factors under the regulations.  Neither contention excuses Petitioner from its obligation to substantially comply with Medicare participation requirements at all times.  Petitioner received a report from an outside vendor months before the fire and life safety code survey and was aware that the sprinkler system was deficient.  Tr. at 30-32.  When cited, Petitioner did not request an extension of the deadline to remedy the deficiency and, upon the revisit survey, had only scheduled the remediation.  CMS Ex. 3 at 2; Tr. at 29-31; *see also* CMS Ex. 14 at 6-7.  Petitioner could have taken steps earlier to repair or replace the sprinkler system, but failed to do so.  If a fire had occurred and the automatic fire response malfunctioned, Petitioner’s elderly and infirm residents would have been at risk of serious injury or even death.  Similarly, Petitioner could have tested the electrical outlets in residents’ rooms at any time after it acquired the facility, but failed to do so.  Any life-saving bedside care requiring a plug would be rendered useless by an electrical outlet that did not work.

The $315 per day CMP that CMS imposed is less than ten percent of the maximum CMP that is authorized for deficiencies that do not pose immediate jeopardy to resident health and safety ($6,418 per day).  42 C.F.R. § 488.438(a)(1)(ii), (d)(2).  I find that a CMP in the lower end of the range for non-immediate jeopardy deficiencies is reasonable based on the seriousness of the noncompliance alone.  Indeed, given the serious risks to which Petitioner’s residents were exposed by Petitioner’s noncompliance, the CMP amount is modest.  I therefore find that a per-day CMP of $315 is reasonable in amount.

Petitioner argues the duration of the noncompliance for the $315 per-day CMP should have concluded on January 29, 2019, because a form CMS-2567B (post-certification revisit report) lists the correction date for the life safety code deficiencies (Tags K353 and K914) as January 29, 2019.  P. Br. at 3-4; P. Post-hrg. Br. at 6; *see also*P. Ex. 1.  Petitioner’s argument lacks merit.  “[T]he period of noncompliance continues until the facility affirmatively demonstrates a return to substantial compliance.”  *Ridgecrest Healthcare Ctr.*, DAB No. 2493 at 15 (2013), (citing *Premier Living & Rehab. Ctr.*, DAB No. 2146 at 23 (2008)); *Lake City Extended Care*, DAB No. 1658 at 12-15 (1998).

CMS is not required to prove that deficiencies continued to exist.  The onus of proving return to compliance falls on the facility.  *Asbury Care Ctr. at Johnson City*, DAB No. 1815 (2002) (2002 WL 274646 at *13).  The facility must show that the incidents of noncompliance have ceased *and* that it has implemented appropriate measures to ensure similar incidents will not recur.  *Libertywood Nursing Ctr.*, DAB No. 2433 at 15 (2011), (citing *Life Care Ctr. of Elizabethton*, DAB No. 2367 at 16 (2011)),*aff’d sub nom. Libertywood Nursing Ctr. v. Sebelius*, 512 F. App’x 285 (4th Cir. 2013); *accord* 42 C.F.R. § 488.454(a), (e).  A facility’s return to substantial compliance usually must be

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established through a resurvey.  42 C.F.R. § 488.454(a); *Ridgecrest*, DAB No. 2493 at 2‐3.

Contrary to Petitioner’s argument, I find that the form CMS-2567B does not prove it is more likely than not that Petitioner returned to substantial compliance on January 29, 2019.  As I have described above, the life safety code revisit survey found Petitioner had not returned to substantial compliance as of January 28, 2019.  *See* CMS Ex. 3 at 1; *see also*CMS Ex. 10 at 1 (state agency letter confirming that the revisit found “your facility remains out of substantial compliance.”).  Further, Petitioner’s own documentation establishes that it did not complete testing the electrical outlets until February 8, 2019, and did not replace the corroded and loaded sprinkler heads until February 26, 2019.  CMS Ex. 14 at 7-8, 11-20; CMS Ex. 15 at 3.  Thus, Petitioner could not have achieved substantial compliance on January 29, 2019, given that the life safety code deficiencies remained uncorrected.  Moreover, Petitioner’s POC was not accepted by the surveyor until February 13, 2019.  CMS Ex. 3 at 1; *see also* CMS Ex. 6 at 2 (confirming Petitioner had not returned to substantial compliance (with life safety code requirements) until February 9, 2019).

Further, even if the form CMS-2567B could be read as a determination by the state agency that Petitioner had corrected the life safety code deficiencies as of January 29, 2019 – a finding I do not make – it is well-settled that the state agency merely recommends a finding of compliance or noncompliance; CMS ultimately determines whether the facility is in substantial compliance.  *Britthaven of Chapel Hill*, DAB No. 2284 at 6-7 (2009).  It is apparent that CMS did not find that Petitioner returned to substantial compliance on January 29, 2019, since CMS imposed CMPs that continued beyond that date.  Finally, even if the life safety code deficiencies had been corrected, the health and safety deficiencies cited at the February 28, 2019 complaint survey include findings of noncompliance beginning before January 29, 2019.  For example, the deficient baseline care plan that I discuss in section V.B.2.b. above was dated January 19, 2019.  *See*CMS Ex. 18 at 5-6.

I therefore find that the deficiencies cited at the revisit survey conducted on January 28, 2019, and the corrections required to come into compliance, establish that Petitioner did not return to substantial compliance with the life safety code participation requirements earlier than February 9, 2019.  Accordingly, I find that the duration of the CMP, from November 28, 2018, and continuing through February 9, 2019, is reasonable.

***b. A CMP of $515 per day from February 10, 2019 through March 19, 2019, is reasonable in amount and duration.***

In this case, CMS imposed a $515 per-day CMP for 38 days beginning February 10, 2019 and continuing through March 19, 2019.  Because I have determined that Petitioner was out of substantial compliance at the non-immediate jeopardy level, I determine *de novo*

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whether a CMP of $515 per day for 38 days of noncompliance (February 10, 2019 through March 19, 2019) is reasonable, based on the factors enumerated in the regulations.

Applying the regulatory factors, I find that Petitioner’s noncompliance with the participation requirements governing reporting injuries of unknown origin, care planning, accident prevention, and radiology services was serious.  Resident 2 sustained three falls during her brief residency at Petitioner’s facility.  Her third fall resulted in bilateral hip fractures after the facility failed to investigate her previous falls or implement person-centered interventions to prevent future falls.  Resident 2 remained in pain from her hip fractures for hours due to Petitioner’s failure to provide radiology services in a timely manner.  Petitioner argues that it cannot stop or prevent all falls and that it put mechanisms in place to meet its residents’ needs.  *See* P. Br. at 8.

Petitioner’s arguments are not supported by the record, which plainly demonstrates that Resident 2 was admitted as a known fall risk and sustained multiple foreseeable and preventable falls.  Petitioner could and should have included interventions to specifically address Resident 2’s fall risks and should have assessed the interventions after each fall to prevent Resident 2 from having additional accidental falls.  Petitioner failed to take all reasonable steps to ensure Resident 2 received the interventions needed to prevent falls.  These failures resulted in actual harm to Resident 2 in the form of bilateral hip fractures and pain.

The $515 per-day CMP that CMS imposed is less than ten percent of the maximum CMP that is authorized for deficiencies that do not pose immediate jeopardy to resident health and safety ($6,418 per day).  42 C.F.R. § 488.438(a)(1)(ii), (d)(2).  I find that a CMP in the lower end of the range for non-immediate jeopardy deficiencies is reasonable based on the seriousness of the noncompliance alone.  Indeed, given the serious injury Resident 2 sustained as a result of Petitioner’s noncompliance, the CMP amount is modest.  I therefore find that a per-day CMP of $515 is reasonable in amount.

Petitioner does not contest the duration of the noncompliance for the $515 per-day CMP.  *See* P. Br. at 8; P. Post-hrg. Br. at 6.  I therefore find, by a preponderance of the evidence, that Petitioner did not return to substantial compliance earlier than March 19, 2019.  Accordingly, I find that the duration of the CMP, from February 10, 2019, and continuing through March 19, 2019, is reasonable.

***c. The remaining factors support a finding that the per-day CMPs are reasonable.***

As discussed above, with respect to both per-day CMPs, Petitioner was culpable (in the sense of responsible) for its deficient practices.  The record contains no evidence regarding Petitioner’s compliance history or its financial condition.  CMS imposed a

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CMP of only $315 per day for Petitioner’s noncompliance with the life safety code requirements.  CMS imposed a CMP of only $515 per day for Petitioner’s noncompliance with the health and safety participation requirements.  The CMP amounts fall in the lower ten percent of the CMP range in effect at the time ($107 to $6,418).  Given the serious risks to which Petitioner’s residents were exposed by the defective sprinkler heads and the pain to which Resident 2 was subjected following her third fall on February 10, 2019, it would be reasonable to impose much higher CMPs.  I nevertheless find that the per-day CMP amounts imposed in this case are reasonable based on the factors of seriousness and culpability.

VI.   Conclusion

For the reasons stated in this decision, I sustain CMS’s determinations.  I conclude that Petitioner was not in substantial compliance with the life safety code requirements at 42 C.F.R. § 483.90(a)(6)(ii), (b), (j)(1)(i) (Tags K353 and K914, respectively).  A CMP of $315 for 74 days for a total of $23,310, is reasonable in amount and duration.  I conclude that Petitioner was not in substantial compliance with the participation requirements at 42 C.F.R. §§ 483.12(c)(1), (4); 483.21(a)(1)-(3), (b)(1); 483.25(d)(1)-(2); and 483.50(b)(1) (Tags F609, F655, F656, F689, and F776, respectively).  A CMP of $515 for 38 days for a total of $19,570, is reasonable in amount and duration.

Endnotes

1 CMS and state survey agencies consider the scope and severity of deficiencies when selecting enforcement remedies.  *See*42 C.F.R. § 488.408.  CMS summarizes the scope and severity levels in a matrix published in the State Operations Manual (SOM).  At the time of the survey at issue, the matrix was published at section 7400.5.1. of the SOM.  CMS Pub. 100-07, ch. 7, § 7400.5.1 (Rev. 63, eff. Sept. 10, 2010) available at https://www.cms.gov/Regulations-and-Guidance/Guidance/transmittals/downloads/R63SOMA.pdf (last visited January 18, 2023).  In the current version of the SOM, the matrix appears at section 7400.3.1.  SOM, ch. 7, § 7400.3.1(Rev. 185, eff. Nov. 16, 2018), available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07pdf.pdf (last visited January 18, 2023).  As relevant here, scope and severity level “G” corresponds to an isolated deficiency that causes actual harm but does not cause immediate jeopardy to resident health or safety; level “E” corresponds to a pattern of deficiencies that does not cause actual harm but has the potential for causing more than minimal harm; and level “D” corresponds to an isolated deficiency that does not cause actual harm but has the potential for causing more than minimal harm.

2 Petitioner was cited for an additional deficiency based on the complaint survey, which CMS confirmed it is no longer pursuing.  Petitioner was initially cited for failing to comply with participation requirements at 42 C.F.R. § 483.15(c)(3), (c)(4) (Tag F623) (Discharge Notice), at a scope and severity level of “D.”  CMS Ex. 4 at 6.  However, in its prehearing brief (CMS Br.), CMS advised that it had withdrawn the deficiency under Tag F623 and added deficiency citations under Tags F655 (Baseline Care Plan) and F656 (Comprehensive Care Plan), which were based on the same facts.  CMS Br. at 2‐3 n.1.

3 CMS filed its initial prehearing exchange before I consolidated C-19-688 with C‐19‐1002.  Therefore, CMS’s prehearing brief appears in the electronic file for C‐19‐688.  My August 14, 2019 consolidation order permitted CMS to supplement the exchange it filed in C-19-688.  CMS filed a supplemental brief and proposed CMS Ex. 35.  In its supplemental brief, CMS moved to dismiss Petitioner’s hearing request docketed as C-19-1002.  CMS Supp. Br. at 1-2.  I denied CMS’s motion to dismiss on the record at the hearing in this case.  Transcript of Hearing (Tr.) at 5-6 (here and throughout this decision, I refer to the page numbers printed at the upper right corner of the transcript pages and not to the PDF page numbers).

4 The signed declaration appears at PDF pages 3-5 of Docket Entry # 10 in the electronic file for C-19-1002.  Hereafter, I refer to the signed declaration as P. Ex. 3, although it is not marked as an exhibit.  *See*Tr. at 7-8.

5 The CMP ranges listed in the regulations are adjusted annually for inflation under 45 C.F.R part 102.  The amounts I cite here were those in effect at the time CMS imposed the remedies at issue in the present case.  *See*83 Fed. Reg. 51,369, 51,380 (Oct. 11, 2018).  The inflation adjustment for 42 C.F.R. § 488.408(d)(1)(iii) lists a range of $107 to $6,41**7**, while the inflation adjustment for 42 C.F.R. § 488.438(a)(1)(ii) lists a range of $107 to $6,41**8**.  *Id.* Similarly, there is a $1 discrepancy in the CMP amounts listed for the higher range.  These discrepancies are not explained in the text.  In any event, the differences are not material to my decision.

6 The “completion date” is indicated in the far right-hand column of the Form 2567.  *See, e.g.,*CMS Ex. 1 at 1.  Surveyor Chacon testified that facilities indicate their “allegation of compliance date” in that column, across from the K-number for the deficiency at issue.  Tr. at 20.

7 It is possible Petitioner’s staff misunderstood Surveyor Chacon, who acknowledged agreeing that Petitioner could submit documentation regarding a different deficiency citation after the revisit.  Tr. at 29.

8 Petitioner appears to rely on Surveyor Chacon’s alleged statement to invoke the doctrine of equitable estoppel (i.e., Petitioner relied to its detriment on false or misleading information provided by the surveyor).  However, many appellate decisions of the Departmental Appeals Board (DAB) have recognized that equitable estoppel will not lie against a government entity absent some type of affirmative misconduct.  *See Hartford HealthCare*, DAB No. 2787 at 10 (citing cases).  As the *Hartford*decision emphasized, “affirmative misconduct appears to require something more than failing to provide accurate information or negligently giving wrong advice.”  *Id.*(internal quotation marks and citations omitted).  If Surveyor Chacon promised not to cite a deficiency based on Petitioner’s failure to complete repairs on the sprinkler system, that might support an inference that the surveyor negligently gave wrong advice, but not that he committed affirmative misconduct.  Therefore, Petitioner’s reliance on equitable estoppel is misplaced.

9 The 2012 NFPA 99 describes the outlets to be tested as those “in patient care rooms” or “at patient bed locations.”  *See*CMS Ex. 16 at 2.  In this decision, I describe the referenced outlets as those in “residents’ rooms.”

10 To protect her privacy, I refer to the resident by the numerical identifier assigned during the state agency survey.  *See*CMS Ex. 4 at 2; CMS Ex. 27 at 1.

11 An outpatient MRI obtained February 1, 2019, revealed that Resident 2 had a torn right rotator cuff.  CMS Ex. 18 at 38, 42.

12 Neither party offered a copy of the MDS in evidence.  Nevertheless, I find it more likely than not that the statement of deficiencies accurately describes the contents of the MDS.  The narrative is consistent with the notes the surveyor took during her record review.  *See*CMS Ex. 27 at 2; *see also*CMS Ex. 32 at ¶ 3.

13 Although the MDS assessment reported Resident 2’s cognition as intact, Petitioner’s admission summary noted that, on admission, the resident was “A&O [alert and oriented] x 2 with periods of confusion.”  CMS Ex. 18 at 63.

14 There are several references in the record to an “interim care plan.”  *See, e.g.,*Tr. at 67; *see also*CMS Ex. 27 at 4.  I understand the references to the “interim care plan” as synonymous with “baseline care plan.”

15 Petitioner’s administrator wrote in Petitioner’s IDR request that Resident 2’s care plan for fall prevention was created on January 29, 2019.  CMS Ex. 31 at 5, 34.  According to the administrator, the care plan was closed when the resident was discharged from the facility.  *Id.*at 5.  Then, the date was reset by the computer program when Petitioner’s MDS coordinator audited the care plan on February 18, 2019.  *Id.*

16 The nurse’s note is dated “1/29/2019 08:07.”  CMS Ex. 18 at 51.  However, the text of the note refers to “11:30 p.m.”  *Id.* I infer this must be a reference to 11:30 the previous evening, or January 28, 2019.

17 One of Petitioner’s nurses documented that Resident 2 was seen by an Advanced Registered Nurse Practitioner (ARNP).  CMS Ex. 18 at 27.  However, the history and physical note for the visit is signed by a PA.  *Id.*at 29.

18 Resident 2’s initials are G.R.  *See, e.g.,*CMS Ex. 18 at 1.  No entry matching Resident 2’s name appears in the log.  CMS Ex. 23.

19 Surveyor Hill’s notes identify the staff members by first name.  CMS Ex. 27 at 4.  I infer their roles based on the text of the statement of deficiencies.  *See*CMS Ex. 4 at 15.

20 By contrast, on February 27, the Unit Manager recalled that floor mats were in place in Resident 2’s room.  CMS Ex. 4 at 15.

21 According to the surveyor notes, Administrator Brooks also stated during the survey that it is impossible to prevent residents from falling 100% of the time because to do so would require one on one supervision for every resident.  CMS Ex. 27 at 5.  Petitioner seems to endorse this view, arguing that its staff “are unable to prevent all injuries, . . . harms[,] or accidents, but . . . continued to take all reasonable and foreseeable steps to prevent accidents.”  P. Br. at 4 (because Petitioner filed its prehearing brief without page numbers, I cite to the PDF page numbers as displayed in DAB E-File).

22 Surveyor Hill testified that, as of February 27, 2019, Petitioner’s staff had neither investigated nor reported Resident 2’s fall to the state agency.  CMS Ex. 32 ¶ 15.

23 In 2016, CMS issued a final rule that re-designated and revised the provisions of 42 C.F.R. Part 483.  *See* Final Rule, Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68,688 (Oct. 4, 2016).  Prior to 2016, the content of subsections 483.12(c)(1) and (4) was codified at subsections 483.13(c)(2)-(4).  *Id.*at 68,827.  The decisions cited in this paragraph interpreted subsection 483.13(c).  However, the substance of the obligations – that facilities must report and investigate injuries of unknown source – remained unchanged by the reorganization.  Thus, I find that cases decided under the prior version of the regulations continue to provide persuasive authority in interpreting the re-designated regulations.

24 As noted above, the state agency did not cite Petitioner for failing to comply substantially with 42 C.F.R. § 483.21; CMS did so later, based on the same facts.  *See supra*note 2.  In doing so, CMS acted within its regulatory authority.  If a given set of facts demonstrates that a SNF has violated more than one participation requirement, CMS may, in its discretion, charge the SNF with violating any, or all, of the applicable requirements.  *Brian Ctr. Health & Rehab./Goldsboro*, DAB No. 2336 at 6 (2010).  Moreover, “CMS may defend a noncompliance determination based on facts, evidence, or reasoning not specified in the Statement of Deficiencies, provided . . . that due process requirements – adequate notice and a meaningful opportunity to be heard – are satisfied.” *Golden Living Ctr. – Superior*, DAB No. 2768 at 8 n.4 (2017).  Here, CMS raised the additional deficiencies prior to the hearing, and Petitioner had the opportunity to address them in testimony, as well as in pre- and post-hearing briefing.

25 CMS asserts that Petitioner’s care of Residents 4 and 5 is also evidence of substantial noncompliance with 42 C.F.R. § 483.25(d)(1)-(2).  CMS Post-hrg. Br. at 9, 12-17.  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).  Because the facts I have found concerning Petitioner’s care of Resident 2 are more than sufficient to sustain the finding of substantial noncompliance, I do not consider the care of Residents 4 and 5 in concluding that Petitioner was out of substantial compliance with these requirements.

26 Prior to 2016, the content of subsections 483.25(d)(1) and (2) was codified at subsections 483.25(h)(1) and (2).  81 Fed. Reg. at 68,828; *see also supra*note 23.  Many of the decisions cited in this section of my decision interpreted 42 C.F.R. § 483.25(h)(1) and (2).  I find it appropriate to rely on the reasoning of these decisions in the present case because there was no substantive change when 42 C.F.R § 483.25(h)(1) and (2) were re-codified as § 483.25(d)(1) and (2).

27 Although the resident’s fall on January 29 occurred when she was away from the facility, the resident’s son notified Petitioner’s staff that the resident had fallen.  *See*CMS Ex. 18 at 49.  Moreover, the resident returned to the facility that evening after being seen in the emergency room.  *Id.*at 46, 48.

28 As noted above, the CMP ranges listed in the regulations are adjusted annually for inflation under 45 C.F.R. Part 102.  *See* *supra*note 5.
  
          /s/
        Leslie A. Weyn

                      Administrative Law Judge Back to top
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