Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Mabee Health Care Center
(CCN: 67-6015),

Petitioner,
v.
Centers for Medicare and Medicaid Services.
Docket No. C-11-176
Decision No. CR2525

Date: April 9, 2012

DECISION

Petitioner, Mabee Health Care Center, challenges the determination of the Centers for
Medicare & Medicaid Services (CMS) that it was not in substantial compliance with
program participation requirements. Petitioner also challenges CMS’s imposition of a
civil money penalty (CMP) in the total amount of $44,250. For the reasons discussed
below, I find Petitioner to have been in substantial compliance with program participation
requirements at all relevant times. Therefore, there is no basis for CMS to impose
remedies against Petitioner.

I. Background

Petitioner is a long-term care facility located in Midland, Texas. The Texas Department
of Aging and Disability Services (TDADS or state agency) surveyed Petitioner on July 7,
2010, and found Petitioner to be out of substantial compliance with the participation
requirement at 42 C.F.R. § 483.25(h) (Tag F323, scope and severity level G). By letter
dated August 3, 2010, CMS notified Petitioner that it was imposing the following
remedies: a per instance CMP of $2,000; a denial of payment for new admissions
(DPNA) beginning August 18, 2010; termination of Petitioner’s provider agreement
effective January 7, 2011, if substantial compliance was not achieved before that date;
and withdrawal of approval for a Nurse Aide Training and Competency Evaluation
Program (NATCEP). On July 29, 2010, the state agency conducted a follow-up survey.
By letter dated August 20, 2010, CMS notified Petitioner that the survey found Petitioner
to be out of substantial compliance with the participation requirements at 42 C.F.R.

§ 483.13(c)(1)(ii)-(iii),(c)(2)-(4) (Tag F225, scope and severity level E); 42 C.F.R.

§ 483.13(c ) (Tag F226, scope and severity level E); 42 C.F.R. § 483.25(h) (Tag F323,
scope and severity level E); and 42 C.F.R. § 483.75(f) (Tag F498, scope and severity
level E). The notice informed Petitioner that the original $2,000 per instance CMP had
been rescinded, but that CMS had imposed a CMP of $600 per day beginning June 9,
2010. The notice also stated that the termination, DPNA, and withdrawal of approval of
NATCEP remedies mentioned in CMS’s previous letter remained unchanged.

The state agency conducted another survey of Petitioner’s facility on October 4, 2010.

By letter dated October 19, 2010, CMS notified Petitioner that the survey found
Petitioner to be out of substantial compliance with the participation requirement at 42
C.F.R. § 483.13(c) (Tag F226, scope and severity level E). The notice informed
Petitioner that CMS was imposing a CMP of $150 per day beginning August 7, 2010 and
continuing until further notice from CMS. With respect to the $600 per day CMP already
imposed, the notice informed Petitioner that the CMP began June 9, 2010 and continued
through August 6, 2010, for a total of $35,400. The notice stated that the other remedies
previously imposed remained unchanged.

On October 26, 2010, CMS issued a final notice letter to Petitioner. This notice advised
Petitioner of the following: the termination remedy was rescinded; the DPNA effective
date was changed from August 18, 2010 to October 7, 2010, and based on Petitioner’s
date of substantial compliance, would not be effectuated; a CMP of $600 per day was
imposed from June 9, 2010 through August 6, 2010, for a total of $35,400; and a CMP of
$150 per day was imposed from August 7, 2010 through October 4, 2010, for a total of
$8,850. The total amount of the CMP was $44,250.

Petitioner requested a hearing by letter dated October 4, 2010. The case was docketed as
C-11-14 and assigned to me for hearing and decision on October 19, 2010.

On November 18, 2010, CMS filed what it entitled “Respondent’s Partial Motion to
Dismiss.” By its Motion CMS sought the dismissal of Petitioner’s “request for an appeal
of CMS’ scope and severity determinations for deficiency listed as F-323 for the
following reasons . . . Petitioner cannot appeal the scope and severity of F-323 where
CMS has imposed a per day civil money penalty that is not reviewable as a successful
challenge to the CMP would not affect the range of the monetary penalties that CMS
could collect.” On December 8, 2010, Petitioner filed its response to CMS’s partial
motion to dismiss.
In my ruling dated January 3, 2011, I stated that there had been multiple surveys of
Petitioner’s facility between July and October 2010, Petitioner had engaged in state
informal dispute resolution (IDR) proceedings, there had been several substantial changes
in the positions of CMS and the state survey agency, and Petitioner had made an effort to
win extraordinary relief from some CMS actions in United States District Court. I
observed that all of these events had created a procedural history that was at best
confusing. I viewed CMS’s motion more as a motion in /imine than as a motion to
dismiss. I ruled that Petitioner may not challenge the assessment of the F-323 citation at
a scope-and-severity level of G, and that no further evidence or argument on that issue
would be received.

In the interim, Petitioner had filed another request for hearing on December 17, 2010,
appealing the remedies imposed pursuant to CMS’s notice letter of October 19, 2010.
The case was docketed as C-11-176 and assigned to me for hearing and decision on
December 28, 2010.

On January 5, 2011, I issued a Consolidation Order and Order Establishing Procedures
and Schedule for Pre-hearing Exchanges. My Order stated that Docket No. C-11-176
involves the same survey cycle and involves common questions of law and fact as Docket
No. C-11-14, and that neither party objected to the two cases being consolidated with
each other. I therefore consolidated the two cases for hearing and decision. Docket No.
C-11-14 was dismissed, and Petitioner’s requests for hearing were consolidated under
Docket No. C-11-176. The balance of my Order established procedures and schedules
for the parties to observe as they prepared the case for hearing.

I conducted an in-person hearing in Midland, Texas on June 13-16, 2011. CMS offered

exhibits (CMS Exs.) 1 through 4, 5 (pp. 1-2, 12-23 only), 6 through 11, 12 (including pp.
72A, 72B, and 72C), and 13 through 21,which I admitted into evidence. Transcript (Tr.)
at 29, 89, 104-105. Petitioner offered exhibits (P. Exs.) 1 through 47, which I admitted.
Tr. at 30-31.

CMS called the following witnesses: Surveyor Tracy West, R.N.; Surveyor Debra
Adams; Surveyor Victoria Aupied, R.N.; and Captain Daniel McElroy, R.N. Petitioner
called the following witnesses: Richard Hale, Executive Director of Manor Park, of
which Petitioner is a part; Cheryl Cummins, R.N., Petitioner’s Director of Nursing
(DON); Laurel Dean, Certified Nurse Aide (CNA); Cara Brooks, Licensed Vocational
Nurse (LVN); Betty Medlock, CNA; LaNell Honeyman, Petitioner’s Administrator at the
time of the surveys; and Cheryl Morgan, R.N. The parties filed post-hearing briefs (P.
Br. and CMS Br.) and post-hearing reply briefs.

IL. Issues

The issues in this case are:
1. Whether Petitioner was out of substantial compliance with participation
requirements; and

2. Whether the remedies imposed are reasonable.
Ill. Applicable law

The statutory and regulatory requirements for participation by a long-term care facility
are found at sections 1819 (SNF) and 1919 (NF) of the Social Security Act (Act) and at
42 C.F.R. Part 483.' Section 1819(h)(2) of the Act vests the Secretary of Health and
Human Services (Secretary) with authority to impose enforcement remedies against a
SNF for failure to comply substantially with the federal participation requirements
established by sections 1819(b), (c), and (d) of the Act.’ Pursuant to 1819(h)(2)(C), the
Secretary may continue Medicare payments to a SNF not longer than six months after the
date the facility is first found not in compliance with participation requirements.
Pursuant to 1819(h)(2)(D), if a SNF does not return to compliance with participation
requirements within three months, the Secretary must deny payments for all individuals
admitted to the facility after that date - commonly referred to as the mandatory or
statutory DPNA. In addition to the authority to terminate a noncompliant SNF’s
participation in Medicare, the Act grants the Secretary authority to impose other
enforcement remedies, including a discretionary DPNA, CMPs, appointment of
temporary management, and other remedies such as a directed plan of correction. Act
§ 1819(h)(2)(B).

The Secretary has delegated to CMS and the states the authority to impose remedies
against a long-term care facility that is not complying substantially with federal
participation requirements. “Substantial compliance means a level of compliance with
the requirements of participation such that any identified deficiencies pose no greater risk
to resident health or safety than the potential for causing minimal harm.” 42 C.F.R.

§ 488.301 (emphasis in original). A deficiency is a violation of a participation
requirement established by sections 1819(b), (c), and (d) of the Act or the Secretary’s
regulations at 42 C.F.R. Part 483, subpart B. 42 C.F.R. § 488.301. State survey agencies
survey facilities that participate in Medicare on behalf of CMS to determine whether the
facilities are complying with federal participation requirements. 42 C.F.R. §§ 488.10-.28,

' All references are to the 2010 version of the Code of Federal Regulations (C.F.R.),
which was in effect at the time of the survey, unless otherwise indicated.

> Section 1919(h)(2) of the Act gives similar enforcement authority to the states to
ensure that NFs comply with their participation requirements established by sections
1919(b), (c), and (d) of the Act.
488.300-.335. The regulations specify the enforcement remedies that CMS may impose
if a facility is not in substantial compliance with Medicare requirements. 42 C.F.R.
§ 488.406.

CMS may impose a CMP for the number of days a facility is not in substantial
compliance or for each instance of noncompliance. 42 C.F.R. § 488.430(a). The
regulations specify that a CMP that is imposed against a facility on a per day basis will
fall into one of two ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The upper range
of a CMP, $3,050 per day to $10,000 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). “mmediate jeopardy means a
situation in which the provider’s noncompliance with one or more requirements of
participation has caused, or is likely to cause, serious injury, harm, impairment, or death
to aresident.” 42 C.F.R. § 488.301 (emphasis in original). The lower range of a CMP,
$50 per day to $3,000 per day, is reserved for deficiencies that do not constitute
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). A
per instance CMP may range from $1,000 to $10,000, and the range is not affected by the
presence of immediate jeopardy. 42 C.F.R. § 488.438(a)(2).

The Act and regulations make a hearing before an administrative law judge (ALJ)
available to a long-term care facility against which CMS has determined to impose an
enforcement remedy. Act §§ 1128A(c)(2), 1866(h); 42 C.F.R. §§ 488.408(g),
498.3(b)(13). The hearing before an ALJ is a de novo proceeding. The Residence at
Salem Woods, DAB No. 2052 (2006); Cal Turner Extended Care, DAB No. 2030 (2006);
Beechwood Sanitarium, DAB No. 1906 (2004); Emerald Oaks, DAB No. 1800, at 11
(2001); Anesthesiologists Affiliated, DAB CR65 (1990), aff'd, 941 F.2d 678 (8th Cir.
1991). A facility has a right to appeal a “certification of noncompliance leading to an
enforcement remedy.” 42 C.F.R. § 488.408(g)(1); 42 C.F.R. §§ 488.330(e), 498.3.
However, the choice of remedies, or the factors CMS considered when choosing
remedies, is not subject to review. 42 C.F.R. § 488.408(g)(2). A facility may only
challenge the scope and severity level of noncompliance that CMS determined, if a
successful challenge would affect the range of the CMP that may be imposed or impact
the facility’s authority to conduct a NATCEP. 42 C.F.R. § 498.3(b)(14), (d)(10)(i). The
CMS determination as to the level of noncompliance, including the finding of immediate
jeopardy, “must be upheld unless it is clearly erroneous.” 42 C.F.R. § 498.60(c)(2);
Woodstock Care Ctr., DAB No. 1726, at 9, 38 (2000), aff'd, 363 F.3d 583 (6th Cir.
2003). The Board has long held that the net effect of the regulations is that a provider has
no right to challenge the scope and severity level assigned to a noncompliance finding,
except in the situation where that finding was the basis for an immediate jeopardy
determination. See, e.g., Ridge Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB
No. 1750 (2000). ALJ review of a CMP is subject to 42 C.F.R. § 488.438(e).
The standard of proof, or quantum of evidence required, is a preponderance of the
evidence. CMS has the burden of coming forward with the evidence and making a prima
facie showing of a basis for imposition of an enforcement remedy. Petitioner bears the
burden of persuasion to show by a preponderance of the evidence that it was in
substantial compliance with participation requirements or any affirmative defense.
Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff'd, 129 F. App’x. 181
(6th Cir. 2005); Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Emerald
Oaks, DAB No. 1800; Cross Creek Health Care Ctr., DAB No. 1665 (1998); see
Hillman Rehab. Ctr., DAB No. 1611 (1997), aff'd, No. 98-3789, 1999 WL 34813783
(D.N.J. May 13, 1999).

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

1. Petitioner was in substantial compliance with the participation
requirement at 42 C.F.R. § 483.25(h ) (Tag F323).

July 7, 2010 Survey

42 C.F.R. § 483.25 requires that:

Each resident must receive and the facility must provide the necessary care and
services to attain or maintain the highest practicable physical, mental, and
psychosocial well-being, in accordance with the comprehensive assessment and
plan of care.

The subsection at 42 C.F.R. § 483.25(h) references accidents’ and requires that:
(h) Accidents. The facility must ensure that —

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

> The Board references the SOM in defining an accident as:

“an unexpected, unintended event that can cause a resident bodily injury,”
excluding “adverse outcomes associated as a direct consequence of treatment or
care (e.g., drug side effects or reactions).” SOM Appendix PP, Guidance to
Surveyors, Part 2, SOP 483.25 Quality of Care (Rev. 274, June 1995 (SOM
Guidance).

Woodstock Care Center, DAB No. 1726, at 4 (2000).
(2) Each resident receives adequate supervision and assistance devices to prevent
accidents.

In the case of Meridian Nursing Center, DAB No. 2265, at 3 (2009), the Board described
the requirements of this subsection, stating:

Section 483.25(h)(1) requires that a facility address foreseeable risks of
harm from accidents “by identifying and removing hazards, where possible,
or where the hazard is unavoidable because of other resident needs,
managing the hazard by reducing the risk of accident to the extent
possible.” Maine Veterans’ Home — Scarborough, DAB No. 1975, at 10
(2005). Section 483.25(h)(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 Center, DAB No. 2115, at 11 (2007),
citing Woodstock Care Ctr. v. Thompson, DAB No. 1726 (2000) (facility
must take “all reasonable precautions against residents’ accidents”), aff'd,
Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003).

The Board has also held that facilities “have the ‘flexibility to choose the methods of
supervision’ to prevent accidents so long as the methods chosen are adequate in light of
the resident’s needs and ability to protect himself or herself from a risk.” Briarwood
Nursing Center, DAB No. 2115, at 5, citing Liberty Commons Nursing and Rehab —
Alamance, DAB No. 2070, at 3 (2007).

In this case, the Statement of Deficiencies (SOD) for the July 7, 2010 survey alleges that
Petitioner violated 42 C.F.R. § 483.25(h) because staff failed to provide adequate
supervision and assistance devices to prevent an accident for Resident 1 (R1), who
required staff assistance with transfers using an assistance device. CMS Ex. 3, at 1-2.
The SOD alleges that two CNAs, CNA A and CNA B, transferred R1 without using a
gait belt assistance device as required by facility procedures. The SOD alleges that the
CNAs noticed a “bump” after the transfer; nursing notes documented that the hip looked
displaced; and a hospital radiology report showed a fracture just below the screws of the
repair of a previous fracture. CMS Ex. 3, at 2.

I find that the evidence presented by CMS is sufficient to establish a prima facie case of
noncompliance, but that Petitioner has overcome CMS’s prima facie case by a
preponderance of the evidence.

At the time of the July 7, 2010 survey, R1 was an 84-year-old woman who was admitted
to Petitioner’s facility on June 2, 2010, following hospitalization for a stroke. CMS Ex.
6, at 146, 147, 153. Her multiple diagnoses included hypertension, congestive heart
failure, hypoparathyroidism, hyperlipidemia, depressive disorder, generalized pain, and
constipation. CMS Ex. 3, at 2; P. Ex. 5, at 10-11; CMS Ex. 6, at 146; CMS Ex. 6, at 5-7.

R1’s interdisciplinary care plan, dated June 2, 2010, noted that R1 required assistance in
the form of “ext (extensive) x 1” for bed mobility, “ext x 1-2” for transfers, “ext x 1” for
dressing, and “ext x 1-2” for toilet use. R1 used a wheelchair for locomotion. CMS Ex.
6, at 151.

According to the nursing notes, on June 9, 2010, R1 complained of pain in her right hip.
P. Ex. 5, at 8; see P. Ex. 5, at 4. The attending physician, Dr. Vogel, ordered an x-ray,
which showed a “suspected nondisplaced femoral neck transverse fracture.” See P. Ex.
5, at 4, 8; see CMS Ex. 6, at 157. Dr. Vogel ordered R1 to be transferred to the ER for
treatment. P. Ex. 5, at 4, 8; CMS Ex. 6, at 157, 159.

One of Petitioner’s nurses prepared an Incident/Accident Report related to R1’s hip
fracture. P. Ex. 5, at 6; CMS Ex. 6, at 1, 152. On the report, she noted that the time of
the event was “unknown” and described the resident’s condition before the
incident/accident as “normal.” The report stated that no equipment was involved. In
describing what happened, the nurse stated that the resident complained of hip pain, an x-
ray was ordered, and it revealed a “nondisplaced femoral neck transverse fracture.”
According to the report, there were no witnesses to the event/action leading to the
fracture. The report stated that the resident was taken to the hospital. P. Ex. 5, at 6; CMS
Ex. 6, at 1, 152.

R1 was admitted to the hospital on June 9, 2010. CMS Ex. 6, at 153. Her history and
physical examination report noted that she had complained of pain in her right hip for
about two days, there was no definite known trauma, a mobile x-ray had revealed a hip
fracture, and a re-x-ray at the ER confirmed the fracture. The report stated that R1 had
been admitted for surgery. CMS Ex. 6, at 153. According to a radiology report, x-rays of
R1’s pelvis and right hip showed a “right femoral neck fracture.” CMS Ex. 6, at 4, 156.

Petitioner reported the June 9 incident to TDADS on June 10, 2010. Its Administrator,
LaNell Honeyman, completed a Provider Investigation Report dated June 14, 2010. P.
Ex. 5, at 1-3; CMS Ex. 6, at 68-70, 237-39. Ms. Honeyman characterized the incident as
an “unexplained injury,” and indicated that the date and location of the incident were
unknown. The report stated that R1 had a history of falls. No alleged perpetrators or
witnesses to the incident are named in the report. Ms. Honeyman attached an
Investigation Summary to the report. Under “Investigation Findings,” she wrote “no
explanation of injury forthcoming.” P. Ex. 5, at 3; CMS Ex. 6, at 70, 239.

Following the surgical repair of her right hip, R1 returned to Petitioner’s facility. Dr.
Vogel’s telephone order dated June 14, 2010, states the following: “readmit to SNF DX
Right Hip Fx, PT, OT, ST to evaluate and treat. Resume previous meds, treatment, and
diet.” CMS Ex. 3, at 4; CMS Ex. 6, at 160.

The record shows that R1 received physical therapy and occupational therapy starting
June 15, 2010. P. Ex. 5, at 7; P. Ex. 8, at 1. R1 also received speech therapy. P. Ex. 5, at
7. R1’s weekly progress report for physical therapy, covering the period 6/16 — 6/21/10,
stated, among other things, that R1 went to the physician on June 21, 2010, and received
orders to start walking and to bear weight down to her right lower extremity. CMS Ex. 6,
at 63, 163. In describing R1’s physical therapy, the report stated, among other things,
that she was seen for “in standing frame x 10 minutes to improve endurance. Seen for
transfers from w/c to ex. mat & vice versa [with] max [assist] @ 2. Supine to/from sit
[with] max. strengthening exercises to B LE’s [lower extremities] & oc’s/tactile cues to
improve ROM, especially [right] LE.” The report stated further that “[p]t. will continue
to benefit from PT services to restore functional mobility through improve [sic] bed
mobility, transfers, LE strengthening, balance, endurance, gt [gait] and safety.” R1’s
barriers to progress were noted to be her low endurance, strength, and balance. CMS Ex.
6, at 63, 163.

According to the nursing notes, on June 26, 2010, a nurse observed that R1’s right hip
“looks as if it’s out of place,” and indicated that Rlcomplained of hip pain. The nurse
noted that R1 had recently had surgery for a right hip fracture. She reported that R1’s hip
was “angled abnormal” and R1 was “unable to straighten leg out fully.” According to the
nursing notes, R1’s daughter said that R1’s hip “did not look like this yesterday.” No
edema or redness was present at the hip. R1’s daughter requested an x-ray, and R1’s
physician ordered that R1 be sent to the ER. R1 was sent to Midland Memorial Hospital.

The ER examination report stated that R1 complained of right hip pain from an unknown
source. A family member who provided her history stated that when Petitioner’s staff
picked R1 up from her wheelchair, “her right hip leg was internally rotated.” CMS Ex. 6,
at 174. The examination report stated that there was no report of trauma or a fall. It
noted that R1 was a fall risk and had had hip surgery on June 21. CMS Ex. 6, at 177. In
noting R1’s past medical history, the report lists R1’s diagnoses, including hypertension,
CVA, pneumonia, dementia, and COPD. CMS Ex. 6, at 175. A physical examination
showed, among other things, a “right hip deformity with internal rotation and crepitus.”
CMS Ex. 6, at 177.

X-rays taken of R1’s right hip on June 26, 2010, showed an “acute intertrochanteric right
hip fracture” and “three threaded pins are seen spanning a prior subcapital hip fracture
which remains intact.” CMS Ex. 6, at 178-79.

R1 was transferred from Midland Memorial Hospital to another hospital (UMC-Lubbock)
because specialty care was unavailable at Midland Memorial Hospital. CMS Ex. 6, at
179. (see CMS Ex. 6, at 243-35). A CT was performed on or about June 27, 2010, and
10

the report stated that R1 had a right femoral fracture “just below the level of where the
orthopedic screws exit” and noted, among other things, that R1 had “diffuse osteopenia.’
P. Ex. 4, at 3; CMS Ex. 6, at 202, 236; CMS Ex. 3, at 4.

One of Petitioner’s nurses prepared an Incident/Accident Report following the June 26,
2010 incident. The report noted that the event occurred at 12:15 p.m. and stated that the
resident’s condition prior to the event was “normal.” According to the report, the
resident complained in pain to her right hip and that she was unable to extend her leg all
the way down. The facility sent her to the hospital ER for evaluation and treatment.
There were no witnesses to the event. CMS Ex. 6, at 13, 187.

Petitioner reported the June 26 incident to TDADS on June 30, 2010, and Administrator
Honeyman completed a Provider Investigation Report dated July 2, 2010. P. Ex. 6, at 1-
3; CMS Ex. 6, at 8-10; 181-83. Ms. Honeyman characterized the incident as an “injury
of unknown source.” The report revealed that on June 9, R1 had had the “same sort of
unexplained injury.” No alleged perpetrators or witnesses to the incident are named in
the report. Under “Description of the Allegation,” Ms. Honeyman stated, “[f]amily
relayed information from dr. in Lubbock that was contrary to report from local hospital
(verbal report). Lubbock claims it was a new injury rather than failed surgery.” In
describing R1’s injury, Ms. Honeyman stated, “[f]emur fracture below previous fracture
— according to family.” As with the injury that occurred on June 9, under “Investigation
Findings,” Ms. Honeyman wrote “no explanation found.” She attached an Investigation
Summary to the report. P. Ex. 6, at 4-5; CMS Ex. 6, at 11-12, 184-85.

In an interview conducted on the day of the survey, CNA A stated that on June 26, 2010,
she and another CNA, CNA B, did a two-person transfer of R1 from her bed to a
wheelchair at 10:30 a.m., and again did a two-person transfer of R1 from her wheelchair
to her bed between 12:15 p.m. and 12:30 p.m. According to CNA A, on both transfers,
they went under R1’s arms, and grabbed the elastic part of her pants to stand, pivot, and
transfer her. CNA A stated that they did not use a gait belt on either transfer. CNA A
stated that R1 did not complain of pain, but after they removed R1’s pants when she was
in bed, they noticed a “bump” on the side of R1’s leg and hip. CMS Ex. 3, at 5.

I note that the allegation in the SOD cites Petitioner for a failure to provide adequate
supervision and assistance devices to prevent “an accident” for R1, and the “accident” to
which the SOD refers appears to be the June 26, 2010 hip fracture suffered by R1. CMS
Ex. 3, at 2. Despite the fact that the SOD focuses on the second hip fracture, CMS
discusses both the June 9 and June 26 hip fractures suffered by R1 in its briefing.
According to CMS, Petitioner failed to fully assess the cause of R1’s hip fractures,
identifying them only as injuries of unknown origin, and failed to identify what
interventions were necessary to prevent future injuries. CMS contends further that

11

Petitioner’s aides, when transferring R1, used an improper transfer technique given her
physical condition and failed to use a gait belt.*

In support of its position, CMS offered the testimony of Surveyor Tracy West, who was
the only surveyor involved in the July 7, 2010 survey. When asked to explain his
findings of deficient practices, Surveyor West testified that R1, whose diagnoses included
osteopenia and osteoporosis, was at “high risk for injuries and accidents” and that
Petitioner failed to adequately assess the risk factors, failed to put new interventions in
place after the first hip fracture and failed to modify those interventions to prevent further
accidents, and failed to supervise R1. Tr. at 44, 67, 99.

Surveyor West testified, moreover, that “a significant part of” Petitioner’s deficient
practice under Tag F323 was the failure to use a gait belt when transferring R1. Tr. at 99.
According to Surveyor West, Petitioner’s own policy regarding transfers from a bed to a
chair and vice versa required using a gait belt. Tr. at 72-73, 75, 145. He testified that
from his interview with a CNA, he learned that the CNAs did not use a gait belt when
they transferred R1, and instead held on to R1’s elastic waist band. Tr. at 90-94, 150-51.
In Surveyor West’s opinion, the CNAs “did not do a correct transfer” and put R1 at
greater risk for a fall or possibly a hip fracture. Tr, at 95-96, 150-51, 154. I note that
Surveyor West admitted that he did not personally observe any transfers of R1.° Tr. at
00, 140.

In its defense, Petitioner argues that R1 received proper supervision and assistance at all
times. Petitioner asserts that the records show that R1’s hip fractures of June 9 and June
26 did not result from any fall or accident, or from any actions of its staff. Petitioner
argues, moreover, that R1 was transferred properly and that her second hip fracture had
nothing to do with the manner in which she was transferred by its aides.

As I stated above, | find that Petitioner has overcome CMS’s prima facie case by a
preponderance of the evidence. Contrary to the argument CMS urges, I find no evidence
that any sort of accident hazard existed, or even that R1 suffered an accident or fall. I
agree with Petitioner that its staff did all that it reasonably could be expected to do in
caring for R1.

The record shows that when R1 was admitted to Petitioner’s facility on June 2, 2010,
Petitioner’s staff assessed R1’s assistance and safety needs for her interdisciplinary care

+ Surveyor West testified that a gait belt is a sturdy device that goes around a resident’s
waist to help steady the resident while he or she is being transferred. Tr. at 73-74, 92,
148. He stated that a gait belt would not be used if a resident cannot bear weight with his
or her legs or is unable to stand. Tr. at 74.

* Surveyor West testified that he observed three transfers during the survey, but did not
observe any transfers involving R1. Tr. at 100.
12

plan. CMS Ex. 6, at 151. The care plan reflects that R1 required assistance in the form
of “ext (extensive) x 1” for bed mobility and for dressing. R1 required “ext x 1-2” for
transfers and toilet use. The care plan noted that R1 needed adaptive/safety equipment
and that staff needed to educate R1 and her family in the area of safety awareness. CMS
Ex. 6, at 151.° Upon R1’s admission, Petitioner’s staff also completed another form
specifically addressing R1’s level of functioning for various ADLs. On this document,
staff noted that R1 required a one-person assist with transfers and that she was weak.
CMS Ex. 6, at 85.

In responding to CMS’s claims that its staff failed to identify the cause of R1’s hip
fractures, Petitioner offered the testimony of DON Cheryl Cummins. When asked to
explain a “pathological or spontaneous fracture,” DON Cummins testified that it is “a
fracture that can occur from just general everyday day-to-day use of bones, especially in
people who have osteopenia, osteoporosis, are frail, elderly, tiny body frame,
malnutrition, chronic smoking, chronic drinkers.” Tr. at 518. DON Cummins testified
that R1 had been a smoker in the past, had chronic obstructive pulmonary disease
(COPD), was very thin, malnourished, and had diagnoses of both osteopenia and
osteoporosis. Tr. at 518-19. She stated that R1 came to Petitioner’s facility with a
istory of prior fractures, noting that R1 had fallen in March 2010 and suffered rib
fractures. Tr. at 519-20, 532. DON Cummins confirmed also that R1 was taking
antidepressants, and could be at higher risk for pathological or spontaneous fractures
because of their side effects. Tr. at 520.

DON Cummins testified that she investigated both the June 9 and June 26 hip fractures,
and that her investigations included interviewing the nursing staff and R1’s sitters. Tr. at
535-38. When asked whether she was ever able to identify any “accident” that could
ave explained either fracture, DON Cummins testified that she was not able to identify a
fall, a drop, or any other accident that may have occurred. Tr. at 524. DON Cummins
stated that no one she interviewed, including R1’s sitters or her daughter, were aware of
any falls or whether R1 had ever been dropped. Tr. at 536, 540. DON Cummins testified
that with respect to the first fracture, she was not able to identify anything other than
osteoporosis that would have accounted for the fracture. Tr. at 524. With respect to the
second fracture, DON Cummins stated that she was not able to identify anything
“external” that would have caused the fracture. Tr. at 525, 542.

According to DON Cummins, because Petitioner was not able to determine how R1’s
June 9 fracture occurred, this event was reported to TDADS as an “injury of unknown
origin,” for which reporting is required. Tr. at 536. DON Cummins testified that they

° On R1’s care plan, staff listed a particular adaptive or safety device that would be
provided to R1, but Iam unable to determine what was provided because whatever was
written appears to have been highlighted, and the highlighting appears on my copy of the
exhibit as a very heavy black line, making it unreadable. CMS Ex. 6, at 151.
13

assumed R1’s fracture was related to her osteoporosis and her multiple diagnoses, but
they decided to err on the side of caution and reported her fracture. Tr. at 536-37. After
reviewing Petitioner’s report, the state agency cleared Petitioner on a “desk review” of
the report. Tr. at 537. DON Cummins testified that they investigated R1’s second hip
fracture using the same process that they used with the first fracture and also reported the
injury to TDADS. Tr. at 537-38.

In support of its position that R1 was transferred properly, Petitioner points to the
testimony of DON Cummins and CNA Laurel Dean, who was one of the CNAs that
performed the allegedly improper transfer of R1 that is at issue in the SOD. DON
Cummins testified that a resident’s transfer needs may change throughout the day. Tr. at
530-31. With respect to gait belts, she stated that there can be problems associated with
their use during transfers. Tr. at 531. According to DON Cummins, a gait belt would be
contraindicated for a resident with certain physical problems, such as breathing problems,
a recent surgery, or recent rib fractures. Tr. at 531-32. DON Cummins testified that R1
came to Petitioner’s facility with a history of rib fractures, that she had COPD, and that
she had undergone surgery for her first hip fracture, all of which would have been reasons
not to use a gait belt when transferring her. Tr. at 533-34.

CNA Dean testified that she had cared for R1 on perhaps one other occasion prior to
working with her around June 26, 2010, which is the date of R1’s second hip fracture.

Tr. at 664, 672. She stated that she did not believe that it was safe to use a gait belt with
R1 since R1 had recently had hip surgery. Moreover, because R1 was very frail, CNA
Dean did not want to risk injuring her ribs by using a gait belt. Tr. at 666-67. CNA Dean
testified that she discussed with the nurses that she was going to perform a two-person
transfer rather than use a gait belt. Tr. at 666-67. According to CNA Dean, the
allegation in the SOD that she lifted R1 up by the elastic waistband of her pants when she
and the other CNA performed the transfer on June 26 is not true. Tr. at 668. CNA Dean
testified that she or the other CNA hung on to R1’s waistband to steady her as they
pivoted her during the transfer. Tr. at 668-69, 673. She expressed her opinion that the
waistband was safer than the gait belt because “it had more give.” Tr. at 668-69.
According to CNA Dean, during the two-person transfer, R1 was able to pivot and had no
complaints of pain. Tr. at 670. CNA Dean believed that their method of transfer was the
safest way to transfer R1. Tr. at 671. According to CNA Dean, there was nothing in
R1’s care plan stating that a gait belt was required for a transfer. Tr. at 678. She testified
that R1 never fell during the transfers nor did she or the other CNA drop R1 during the
transfers. Tr. at 679.

I note that in her written statement that appears in the record as P. Ex. 2, Ms. Dean wrote
that when she and the other CNA put R1 back to bed after lunch on June 26, she noticed
that R1’s right hip “appeared very swollen, knee bent in.” Ms. Dean stated that she asked
the ADON to examine R1, and the ADON assessed her and sent R1 to the hospital. P.
Ex. 2.
14

I find DON Cummins and CNA Dean to be credible witnesses. I accept DON Cummins’
testimony that she investigated both hip fractures sustained by R1 and was unable to
identify any fall, accident, or drop that befell R1. It is noteworthy that on cross-
examination Surveyor West was unable to identify any particular event in the history of
R1’s care that could have been characterized as an “accident.” Tr. at 133-34. Even
Surveyor West conceded that R1 never fell and that R1 was never dropped during a
transfer. Tr. at 133-34.’

Moreover, I see no evidence in the record that Petitioner failed to keep R1’s environment
as free of accident hazards as possible. Although CMS appears to suggest in its briefing
that the transfer of R1 on June 26 caused her hip fracture (“While there is no conclusive
evidence that the stand and pivot technique used to transfer R1 caused the injury, the
probability is high given the circumstances surrounding R1’s injury.” CMS Br. at 17),
this claim is inconsistent with the testimony of its witness, Surveyor West, who admitted
that he never claimed in the SOD that the transfer caused the fracture. Tr. at 153. Based
on Ms. Dean’s credible testimony and the fact that Surveyor West did not even observe
the transfers of R1, I cannot find that R1 was transferred using inappropriate techniques.
Even though the CNAs did not use a gait belt when they transferred R1, I am persuaded
by Ms. Dean’s testimony that it would not have been safe to use one given R1’s frail
physical condition. Moreover, I find credible Ms. Dean’s testimony that she discussed
doing a two-person transfer with the nurses prior to transferring R1.

There can be little doubt that R1’s osteoporosis and osteopenia made her more
susceptible to suffering a fracture even without any external trauma. Consistent with the
testimony of DON Cummins, Surveyor West testified that R1’s osteoporosis and
osteopenia could potentially have detrimental consequences, such as putting her at risk
for fractures. Tr. at 78, 99. On cross-examination, Surveyor West agreed that if
someone has osteoporosis and osteopenia, he or she would be “at higher risk and . . .
more prone to a pathological fracture, a spontaneous fracture, or a stress fracture, even
without trauma.” Tr. at 117-18. Surveyor West further acknowledged on cross-
examination that in someone who has osteoporotic, severely demineralized bones,
movement, even if perfectly normal, can cause a fracture. Tr. at 119-20. Based on the
testimony of both Surveyor West and DON Cummins, it is thus not an unlikely scenario
that both of R1’s hip fractures were spontaneous or pathological fractures.

The record shows that Petitioner’s staff did all that it reasonably could be expected to do

in caring for R1 and that her hip fractures were not the result of any accidents or accident
hazards. I find that Petitioner established by a preponderance of the evidence that it was

in compliance with 42 C.F.R. § 483.25(h).

T Surveyor West stated also that he found no evidence of abuse or neglect. Tr. at 138.
15

2. Petitioner was in substantial compliance with the participation
requirements at 42 C.F.R. § 483.13(c )(2)-(4) (Tag F225) and 42 C.F.R.
§ 483.13(c) (Tag F226) .

July 29, 2010 Survey

The SOD for the July 29, 2010 survey alleges that Petitioner was not in compliance with
the following Medicare participation requirements: 42 C.F.R. § 483.13(c)(1)(ii)-(iii),
(c)(2)-(4) (Tag F225);* 42 C.F.R. § 483.13(c) (Tag F226); 42 C.F.R. § 483.25(h) (Tag
F323); and 42 C.F.R. § 483.75(f) (Tag F498). CMS Ex. 9.

Tags F225 and Tags F226

The citations under Tags F225 and F226 both involve Resident 1 (R1) and Resident 2
(R2), and the allegations of noncompliance under these two tags are essentially based on
the same facts and circumstances.’ P. Br. at 30. Hence, I shall discuss these deficiencies
together, first with respect to R1 and then with R2.

The regulations require that a facility develop and implement written policies and
procedures prohibiting mistreatment, neglect, and abuse of residents and the
misappropriation of residents’ property. 42 C.F.R. § 483.13(c). The facility “must
ensure that all alleged violations involving mistreatment, neglect, or abuse, including
injuries of unknown source . . . are reported immediately to the administrator of the
facility and to other officials in accordance with State law.” 42 C.F.R. § 483.13(c)(2).
The facility “must have evidence that all alleged violations are thoroughly investigated,
and must prevent further potential abuse” during the investigation. 42 C.F.R.

§ 483.13(c)(3). The facility must ensure that the results of all investigations are “reported
to the administrator or his designated representative and to other officials in accordance
with State law . . . within 5 working days of the incident.” 42 C.F.R. § 483.13(c)(4).
The SOD alleges under Tag F225 that Petitioner violated 42 C.F.R. § 483.13(c)(1)(ii)-
(iii), (c)(2)-(4) because Petitioner failed to investigate thoroughly injuries of unknown
origin sustained by Resident 1 (R1) and Resident 2 (R2) and failed to report an injury of
unknown origin sustained by R2. CMS Ex. 9, at 2. The SOD alleges that Petitioner
“fail[ed] to thoroughly investigate when [R1] was found to have a fractured leg and the
date and cause of the injury was [sic] unknown,” and “fail[ed] to investigate or report

* Although the SOD, at Tag F225, alleges that Petitioner violated the Medicare
participation requirement at 42 C.F.R. § 483.13(c)(1)(ii)-(iii), the surveyors made no
factual allegations in the SOD with respect to this requirement, and neither party
addressed this requirement. Therefore, I do not discuss 42 C.F.R. § 483.13(c)(1)(ii)-(iii).
° The resident referred to as “R1” in the July 29, 2010 survey is not the same person as
the R1 identified in the July 7, 2010 survey.
16

when [R2] was found to have a broken hip and the date and cause of the injury was [sic]
unknown.” CMS Ex. 9, at 2-3.

The SOD alleges under Tag F226 that Petitioner violated 42 C.F.R. § 483.13(c) because
Petitioner failed to implement its abuse policies and procedures with respect to R1 and
R2 in that it failed to implement or follow the policy regarding investigation of injuries of
unknown origin.

I find that the evidence presented by CMS is sufficient to establish a prima facie case of
noncompliance with respect to Tags F225 and F226, but that Petitioner has overcome
CMS’s prima facie case by a preponderance of the evidence.

RI

At the time of the July 29, 2010 survey, R1 was a 97-year-old woman who was admitted
to Petitioner’s facility on April 19, 2010. CMS Ex. 9, at 6; see P. Ex. 27, at 2; CMS Ex.
12, at 51. Her diagnoses included senile dementia, osteoporosis, hypothyroidism,
depressive disorder, nutrition deficiency, generalized pain, and a history of a fractured
carpal bone. CMS Ex. 9, at 6; P. Ex. 26, at 14; CMS Ex. 12, at 12. R1 was in the
Alzheimer’s/dementia special care unit, known as the Younger Unit. P. Ex. 31, at 7;
CMS Ex. 12, at 56.

R1’s Minimum Data Set, with an assessment reference date of April 26, 2010, shows,
among other things, that R1 had short-term and long-term memory problems, moderately
impaired cognitive skills, and needed “one person physical assist” with bed mobility,
transfers, and walking. P. Ex. 31, at 3-4; CMS Ex. 12, at 52-53. R1’s primary mode of
locomotion was her wheelchair. For transfers, R1 was to be lifted manually. P. Ex. 31,
at 5; CMS Ex. 12, at 54.

A nursing note dated July 13, 2010 at 10:33 a.m. stated that R1’s left leg “thas 1+ edema
and slightly warm to touch. No redness noted. A black scab cover small heal s/t [skin
tear.] No drainage noted. Place in recline [with] bilateral feet elevated. Will monitor It.
leg.” CMS Ex. 9, at 6; P. Ex. 32, at 2; CMS Ex. 12, at 7, 62. A nurse reassessed R1’s leg
later at 12:50 p.m. and her nursing note states “yellow pus noted @ old wound site small
circle of redness noted surrounding area... .” The nurse contacted R1’s physician for a
treatment order. CMS Ex. 9, at 6; P. Ex. 32, at 2; CMS Ex. 12, at 7, 62. Nursing notes
dated July 14 and 15, 2010, indicate that the wound was being treated. In the July 15,
2010 entry at 2:51 p.m., a nurse wrote that R1’s “It leg has 3+ pitting edema. Yellow and
purplish bruising to outer lower leg and ankle, half of black scab remain to bed of wound
[with] redness surround area . . . Received new order for X-ray to ankle, lower leg, and
knee of It leg... .” CMS Ex. 9, at 6-7; P. Ex. 32, at 3; CMS Ex. 12, at 8, 63.

17

On July 15, 2010, an X-ray was taken of R1’s left tibia and fibula, and it revealed a
“{dljistal tibial diaphyseal stress fracture.” CMS Ex. 9, at 6; P. Ex. 26, at 6, 8; CMS Ex.
12, at 4, 6.

Following the July 15, 2010 incident, Petitioner’s staff prepared an incident/accident
report. The report stated that R1’s left lower leg had slight swelling and discoloration,
and that R1 moved her leg without obvious pain or difficulty. R1’s physician gave a
telephone order for a leg and knee x-ray and DVT study. The x-ray showed a “distal tibia
diaphyseal fx” and R1’s physician ordered an immobilizer, which was applied. CMS Ex.
9, at 7; P. Ex. 26, at 1; CMS Ex. 12, at 13.

Petitioner reported the incident to TDADS on July 16, 2010, and Administrator
Honeyman completed a Provider Investigation Report. P. Ex. 26, at 3-5; CMS Ex. 12, at
1-3. The report stated the date of the incident is “unknown” and characterized the
incident as an “injury of unknown origin.” CMS Ex. 9, at 7; P. Ex. 26, at 3; CMS Ex. 12,
at 1. With its Provider Investigation Report, Petitioner also attached an Investigation
Summary. P. Ex. 26, at 12; CMS Ex. 12, at 10.

The SOD alleged that no staff interviews were documented as part of Petitioner’s
investigation. CMS Ex. 9, at 7. According to the SOD, there were no witness statements
from staff who worked the shift prior to when signs of R1’s injury were discovered on
July 13, 2010. CMS Ex. 9, at 8. The SOD alleged further that there was no evidence of
any investigation into the transfer methods for R1 or any environmental observations that
may have been relevant. CMS Ex. 9, at 9.

The Immediate Needs Care Plan, dated June 21, 2010, showed that R1 fell with no
apparent injury, and explains that she fell because she was “trying to get OOB [out of
bed] [without] assistance.” According to the care plan, required interventions included
reviewing medications and assessing for orthostatic hypotension. The care plan also
listed the following possible interventions: performing neuro checks, checking R1’s vital
signs and range of motion, using a bed in the lowest position with the wheels locked, a
bed alarm, and hip protectors. P. Ex. 27, at 5; CMS Ex. 12, at 18.

CMS contends that R1’s leg fracture and leg wound were injuries of unknown origin and
that Petitioner failed to investigate both injuries thoroughly, as required by the
regulations. CMS argues that Petitioner assumed that R1’s fracture was related to her
history of osteoporosis. As CMS’s witness Surveyor Debra Adams stated in her
testimony, Petitioner “did not thoroughly investigate the injury to attempt to determine
what had happened to [R1] . . . and they did have an investigation, but it was not
thorough, and it did not encompass all potential witnesses that had access to that resident
in the time period.” Tr. at 170.

18

Petitioner asserts that its staff responded appropriately to R1’s injuries and thoroughly
investigated them in accordance with the regulations and its own facility policy. P. Br. at
29. Petitioner argues that R1’s fracture cannot truly be characterized as an “injury of
unknown source.” P. Br. at 29. Petitioner asserts that R1’s fracture was a stress fracture
that resulted from the normal use of her leg during normal daily activities and the fact
that she had osteoporosis. P. Br. at 29. Petitioner claims that its staff reported R1’s
fracture to the state agency as one of “unknown source” out of “an abundance of caution”
since it did not result from a fall or other trauma.” P. Br. at 17, 29.

Contrary to what CMS argues, I find that Petitioner did respond appropriately to R1’s
injuries and conducted an investigation in a diligent manner. It is also evident from the
record that Petitioner’s staff, in their care-planning for R1, instituted appropriate
interventions to address her risk for falls and fractures.

When R1 was admitted to Petitioner’s facility on April 19, 2010, Petitioner’s staff
completed a Fall Risk Assessment on that date. P. Ex. 29; CMS Ex. 12, at 29-30. The
assessment noted that R1 had fallen in the last thirty days and ninety days, under
unknown circumstances. It stated that she had a history of a hip fracture and two left
wrist fractures. P. Ex. 29; CMS Ex. 12, at 29-30. According to the “summary” section at
the end of the assessment, R1 had a history of falls, poor balance, an unsteady gait, poor
safety awareness due to cognitive impairments, used a wheelchair for mobility, had
macular degeneration and was hard of hearing without devices. The summary also noted
that staff would transfer and assist R1 with all ADLs and includes the following
interventions: “wear hip savers . . . keep wheelchair close by, lock brakes before
transferring, bed in lowest position, keep pathways clear and well lit.” P. Ex. 29 at 2;
CMS Ex. 12, at 29.

R1’s care plan dated April 19, 2010, noted, among other things, that R1 had high
potential/risk for falls. P. Ex. 27, at 2; CMS Ex. 12, at 15. Another part of R1’s April 19,
2010 care plan, which appears to have been updated on July 27, 2010, indicated that she
was at risk for fracture due to her diagnosis of osteoporosis and previous fracture of her
left wrist. P. Ex. 27, at 4; CMS Ex. 12, at 17. The care plan listed the following
approaches: provide gentle care when assisting resident; observe for swelling,
tenderness, bruising; avoid exercises that may increase risk for fractures; encourage
appropriate footwear; administer medication per physician’s orders; and apply brace to
left wrist as needed/tolerated. P. Ex. 27, at 4; CMS Ex. 12, at 17.

On April 26, 2010, Petitioner’s staff completed another document, known as a Resident
Assessment Protocol worksheet, that addressed R1’s risk for falls. P. Ex. 31, at 11; CMS
Ex. 12, at 60. This worksheet noted that R1 has a “history of falls and is at risk for falls
due to confusion, poor safety awareness [related to] Dx. Senile Dementia.” The
worksheet stated further that “[b]ed and chair alarm placement to alert staff when
19

attempting to get up unassisted and W/C locked during transfer. Bed in lowest locked
position and bedside floor mat in place.” P. Ex. 31, at 11; CMS Ex. 12, at 60.

Further evidence of efforts by Petitioner’s staff to minimize R1’s risk of fracture is found
in an interdisciplinary care plan progress note dated May 18, 2010. This progress note
stated, among other things, that the following interventions were in place: use of a
bed/chair alarm, use of a low bed, placement of a bedside mat, use of a rocking recliner,
use of hip savers, and the monitoring of R1’s medications for side effects. P. Ex. 27, at 1;
CMS Ex. 12, at 14. The record also shows that physical therapy was initiated in late
April 2010 to increase R1’s strength and promote her functional mobility, but this was
discontinued after approximately six weeks because R1 reached a plateau. P. Ex. 28.

With respect to R1’s leg wound, the record shows that, on July 13, 2010, CNA William
Russell reported to charge nurse Lisa Hunt that he had noticed some bruising and/or
swelling of R1’s left leg. Tr. at 554-55, 573, 629-30, 634; P. Ex. 16, at 5; CMS Ex. 11, at
6. A nurse assessed R1’s left leg, and noted there was edema, that it was slightly warm to
touch, and that there was no redness evident. P. Ex. 32, at 2; CMS Ex. 12, at 62. The
nurse noted that there was a small black scab on R1’s left calf; no drainage was present.
R1 was placed in a recliner with both her feet elevated, and the nurse stated that her left
leg would be monitored. P. Ex. 32, at 2; CMS Ex. 12, at 62; see P. Ex. 16, at 5. When
the nurse checked R1’s left leg about an hour later, she noticed that there was yellow pus
at the scab site with a “small circle of redness” in the surrounding area. She contacted
R1’s physician for a treatment order. P. Ex. 32, at 2-3; CMS Ex. 12, at 7-8; see P. Ex. 16,
at 5. Petitioner’s nursing staff continued to check R1’s leg during the night and, at 8:00
p.m., documented that there was slight redness to the left leg, with no drainage noted. R1
had no complaints of pain or discomfort. At midnight, a nursing note states that R1 had
no signs or symptoms of pain in her left leg. According to a nursing note at 3:15 p.m. on
July 14, 2010, a treatment order was received for R1’s wound, which consisted of
cleaning the wound, applying triple antibiotic ointment, and putting R1 on oral
antibiotics. A nursing note dated July 15, 2010, at midnight, stated that the wound was
dry and intact with the scab in place, and that a culture would be done later that morning.
A nursing note written around 2:51 p.m. on July 15, 2010, stated that a culture was
obtained, the wound was cleaned, and triple antibiotic ointment was applied. The note
also stated that R1’s left leg has “3+ pitting edema,” her outer lower leg and ankle has
“yellow and purplish bruising,” and there was redness in the surrounding area. The nurse
informed R1’s physician of the new discoloration and edema. The physician ordered an
x-ray of R1’s left ankle, lower leg and knee and a deep vein thrombosis study. P. Ex. 32,
at 3; CMS Ex. 12, at 8.

The record shows that Petitioner’s staff updated R1’s care plan on July 15, 2010, to
reflect the treatment and plan for R1’s leg wound. P. Ex. 27, at 3. The care plan
describes the location of R1’s wound as “L lower leg posterior calf area” and noted that
20

on July 15 an order for a wound culture was obtained and antibiotic therapy was started.
P. Ex. 27, at 3.

The x-ray taken of R1’s left tibia and fibula on July 15, 2010, revealed a “[dlistal tibial
diaphyseal stress fracture.” CMS Ex. 9, at 6; P. Ex. 26, at 6, 8; CMS Ex. 12, at 4, 6.
R1’s physician ordered an immobilizer for R1’s left leg and ordered that R1 see an
orthopedist as soon as possible. P. Ex. 32, at 4.

The nursing notes for July 16-28, 2010, show that R1’s leg wound continued to be
monitored and treated, with no signs or symptoms of infection noted. P. Ex. 32, at 4-10.
While the nurses observed that there was still bruising and discoloration, it is unclear
whether this bruising was related to R1’s leg wound or to her leg fracture. In any event, a
nursing note dated July 26, 2010, stated, “Skin assessment showed healed wound. No
redness noted to LLE [left lower extremity.] Fading bruising noted to front of the leg.
Had no s/s of pain or facial grimacing when reapplying uniboot and sock.” P. Ex. 32, at
9. A nursing note dated July 27, 2010, at 12:15 p.m., stated that R1’s boot was removed
for treatment, and the left posterior extremity was “healing appropriately.” P. Ex. 32, at
10. On July 28, 2010, at 11:00 a.m., a nurse wrote that R1 was “resting in recliner [with]
chair alarm @ this time. ... Tx complete to LLE healing appropriately.” P. Ex. 32, at
10.

To explain Petitioner’s response to the discovery of R1’s leg fracture, Petitioner offered
the testimony of DON Cummins and Administrator Honeyman. DON Cummins testified
that she and Ms. Honeyman conducted an investigation and that Ms. Honeyman prepared
a Provider Investigation Report that was submitted to TDADS; in its report to TDADS,
the facility reported R1’s leg fracture as an injury of unknown origin. Tr. at 544, 559,
562, 565-66, 659; P. Ex. 26, at 3-5; CMS Ex. 12, at 1-3.

DON Cummins stated that she, Ms. Honeyman, and Assistant Administrator Barbara
Moore examined R1, and that she and Ms. Honeyman interviewed all staff members on
all shifts who had had contact with R1. Tr. at 560, 565. When they interviewed CNA
Russell, he stated that R1 had more trouble with her weight bearing status on July 15, and
that he had seen a bruise on her left lower leg. Tr. at 555, 634. DON Cummins
confirmed that they interviewed six other CNAs, and obtained written statements from
three of them. Tr. at 560, 648-49; see P. Ex. 26, at 16-18. She stated that she and Ms.
Honeyman also interviewed R1’s son. Tr. at 570-71, 573. According to DON Cummins,
R1’s son stated that he hadn’t seen anything that would suggest a source or a reason for
R1’s fracture and he was not surprised at it, believing it was related to her diagnoses. Tr.
at 570-71. DON Cummins testified that she, Ms. Honeyman, and Ms. Moore reviewed
all events leading up to the incident and talked to staff to determine if there was anything
anyone had seen or heard that would indicate why R1 had a fracture. Tr. at 571-72. She
stated that the ADON, Carolyn Belcher, prepared an incident report that was sent to
TDADS with the Provider Investigation Report. Tr. at 572.
21

DON Cummins testified that, from their investigation, they were unable to determine
what happened or when R1’s leg fracture occurred, and the reason they reported R1’s leg
fracture to TDADS was “[t]o err on the side of caution.” Tr. at 544, 633, 642. She stated
that because R1 had a hard time bearing weight on July 15, they believed the fracture
may have occurred at that time. Tr. at 633-34. DON Cummins stated that R1’s fracture
was a stress fracture, which is “not always readily apparent.” Tr. at 633. DON Cummins
testified that they were unable to determine whether R1 had ever been dropped or had
fallen or that any accident had occurred. Tr. at 544, 561.

Administrator Honeyman testified that even though they believed that R1’s leg fracture
did not appear to be of suspicious nature, they decided to be cautious and report it to
TDADS anyways because of its unknown origin. Tr. at 784-85. Ms. Honeyman testified
that, to her knowledge, R1 had not fallen or been dropped, or experienced any external
trauma. Tr. at 785. She confirmed that the x-ray report revealed that R1 had suffered a
stress fracture, but that beyond this fact, there was no explanation for her fracture. Tr. at
784. According to Ms. Honeyman, nothing from her interviews with the CNAs led her to
a source of external trauma or any other external event that would have accounted for
R1’s fracture. Tr. at 787. She testified that R1’s son told her he had not seen anything
that could explain the fracture, and that he was not surprised that it had happened since
R1 had suffered stress fractures in the past. Tr. at 788, 791. Ms. Honeyman testified that
she never found an explanation for R1’s fracture, and she did not believe that R1’s leg
wound and fracture were related. Tr. at 788-89.

Contrary to CMS’s claim that Petitioner did not conduct a thorough investigation, I find
that the credible testimony of DON Cummins and Administrator Honeyman shows that
they diligently carried out an investigation to determine what happened once they
discovered R1’s leg fracture. That they were unable to determine whether an accident or
any other external trauma had occurred was consistent with R1’s x-ray report, which
stated that she had suffered a stress fracture. As DON Cummins testified, a stress
fracture “is one that occurs from normal use of the bones.” Tr. at 557. R1 had a history
of past stress fractures, which made it even more likely that she had suffered another one.
Based on Petitioner’s investigation, there was nothing to suggest that R1’s injury was of a
suspicious or truly unknown nature that warranted reporting to the state agency.
However, acting in an abundance of caution, DON Cummins and former Administrator
Honeyman submitted a report to the state agency, reporting R1’s fracture as an incident

of unknown origin. The fact that they were unable to determine what happened or the
specific date R1’s fracture occurred does not mean that their investigation was less than
thorough. It simply means that their exhaustive investigation produced no evidence to
negate the supposition of a stress fracture sustained in the absence of trauma. Moreover,
I find that Petitioner identified R1 as being at high risk for falls and appropriately
addressed her risk for fall and fractures by implementing several interventions. As for
R1’s leg wound, the record shows that Petitioner’s staff closely monitored the wound and

22

treated it over the course of several days. I find that with respect to R1 Petitioner
established by a preponderance of the evidence that it was in compliance with 42 C.F.R.
§ 483.13(c)(2)-(4) (Tag F225).

Further, the record does not support CMS’s allegation that Petitioner was not in
compliance with 42 C.F.R. § 483.13(c) (Tag F226) because it failed to implement or
follow its policy regarding investigation of injuries of unknown origin. CMS Ex. 9, at

12. I note that Petitioner correctly points out that 42 C.F.R. § 483.13(c) pertains only to
policies regarding mistreatment, neglect, abuse, and misappropriation of property, and
does not contain any language relating to the development and implementation of policies
pertaining to injuries of unknown source:

The facility must develop and implement written policies and procedures that
prohibit mistreatment, neglect, and abuse of residents and misappropriation of
resident property.

42 CER. § 483.13(c).

Petitioner argues that, nevertheless, it did have a policy regarding investigation of injuries
of unknown origin that accompanies its abuse policies and procedures, and that it was in
place since at least 2009. P. Ex. 19, at 5, 10-11. Petitioner contends further that its staff
followed its policy regarding injuries of unknown origin in investigating R1’s leg
fracture. I find that, as part of its abuse policies and procedures, Petitioner did have a
policy in place that addressed unexplained injuries. P. Ex. 19. Based on my conclusion
that Petitioner’s staff conducted a thorough investigation into R1’s leg fracture, there is
no basis to conclude that Petitioner failed to follow its abuse policies and procedures with
respect to R1. I find that, with respect to R1, Petitioner established by a preponderance
of the evidence that it was in compliance with 42 C.F.R. § 483.13(c) (Tag F226).

R2

At the time of the July 29, 2010 survey, R2 was an 82-year-old man who was admitted to
the Younger Unit of Petitioner’s facility on April 28, 2010.'° His diagnoses included
dementia, senile, hypopotassemia, hypertension, psychosis, anxiety state, generalized
pain, and edema. CMS Ex. 9. at 3; see P. Ex. 13, at 1; CMS Ex. 13, at 38.

As stated in the SOD, R2 fell on June 12, 2010. CMS Ex. 9, at 3-4. Petitioner completed
an incident/accident report after the incident. The SOD states that the incident report

documented that R2 stood up from the dining table, and when a CNA asked him to have a
seat, R2 “took a swing” at the CNA, lost his balance and fell, landing on his left side. R2

According to Petitioner, R2 and his wife had been residents of the independent living
portion of the complex of which Petitioner’s facility is a part. P. Br. at 22.
23

sustained skin tears to his left elbow and left ear. CMS Ex. 9, at 3-4; P. Ex. 10, at 1;
CMS Ex. 13, at 1.

In an initial fall assessment dated June 12, 2010, the nurse described the incident, noted
that R2 was not in pain, and stated that he had suffered skin tears to his left forearm and
left ear. The assessment indicated that R2’s physician was notified. P. Ex. 11, at 1; CMS
Ex. 13, at 3.

Petitioner addressed R2’s fall in an “immediate needs care plan” dated June 12, 2010.
The care plan noted that R2 had a fall resulting in minor injury to his left ear and left
elbow. As an intervention, the care plan directed staff to assess for infection,
dehydration, constipation, and pain. Other possible interventions were performing neuro
checks, checking vital signs, and checking range of motion. P. Ex. 11, at 2; CMS Ex. 13,
at 4.

R2 apparently fell again on June 15, 2010. CMS Ex. 9, at 4. Petitioner completed an
incident/accident report, which stated that a CNA reported finding R2 sitting on the floor.
P. Ex. 10, at 2; CMS Ex. 13, at 2. A nurse assessed R2, and no injuries were observed.
The report noted that R2 was examined on June 18, 2010, and he “continues to complain
of rt knee pain.” Staff wrote that they would continue to monitor R2 as they kept hospice
informed of his progress. CMS Ex. 9, at 4; P. Ex. 10, at 2; CMS Ex. 13, at 2.

In an initial fall assessment dated June 15, 2010, at 9:00 p.m., the nurse wrote that she
had been informed by the CNA that R2 was sitting on the floor. The nurse assessed R2,
found no apparent injuries, and stated that R2 had no complaints of pain or discomfort.
The assessment reflected that R2’s physician was notified. P. Ex. 11, at 12; CMS Ex. 13,
at 14.

Petitioner addressed R2’s fall in an “immediate needs care plan” dated June 15, 2010.
Staff stated that R2 fell with no apparent injury and that interventions would consist of
assessing R2 for orthostatic hypotension and performing a skin assessment. Other
possible interventions selected were performing neuro checks, checking vital signs and
range of motion, and using hip protectors. P. Ex. 11, at 13; CMS Ex. 13, at 15.

Petitioner’s staff also updated R2’s care plan on June 15, 2010. The care plan noted that
R2 fell on June 12, and that he was at risk for a fall-related injury as evidenced by his
wandering/pacing, and his previous fall. Among the interventions put in place were: use
fall risk screen to identify risk factors; observe for drug side effects; provide
environmental adaptations such as a low bed, adequate glare-free lighting, and area free
of clutter; remind R2 to sit on the side of his bed for a few minutes before
transferring/standing when rising from a lying position; educate/remind R2 to request
assistance prior to ambulation; and provide appropriate footwear. P. Ex. 24, at 11-12;
CMS Ex. 13, at 93-94.
24

R2 apparently fell again a day later, on June 16. In an initial fall assessment dated June
16, 2010, at 11:30 a.m., the nurse wrote that a CNA had notified her that R2 was on the
floor of his room. The nurse found R2 sitting on his buttocks in his room. She stated that
R2 could not verbalize what happened and that the fall was unwitnessed. R2 had no
apparent injuries. P. Ex. 11, at 17; CMS Ex. 13, at 19.

A nursing note dated June 19, 2010 at 1300 (1:00 p.m.), stated that R2 complained of
pain in his right leg when turning side to side, and later that day, at 1700 (5:00 p.m.), a
nursing note indicated that R2 had signs and symptoms of pain and discomfort to the
right knee. CMS Ex. 9, at 4; P. Ex. 12, at 3; CMS Ex. 13, at 28. A nursing note dated
June 20, 2010 at 1:00 a.m. stated that R2 continued to complain of right knee pain upon
movement. Another note several hours later, at 5:00 a.m., stated that R2 “continues to
attempt to get out of the bed but when he moves his right leg, the pain on this right leg
discourages him from self- transferring from the bed.” CMS Ex. 9, at 4; P. Ex. 12, at 4;
CMS Ex. 13, at 29. Another June 20, 2010 nursing note at 9:30 a.m. stated that hospice
was obtaining an order for an x-ray. CMS Ex. 9, at 4; P. Ex. 12, at 4; CMS Ex. 13, at 29.
The nurse noted that R2 was “moaning in pain.” P. Ex. 12, at 4; CMS Ex. 13, at 29.
Later that day, a note written at 1300 (1:00 p.m.), stated that R2’s right knee x-rays were
negative. CMS Ex. 9, at 4; P. Ex. 12, at 5; CMS Ex. 13, at 30; see P. Ex. 17, at 2; CMS
Ex. 13, at 83.

Nursing notes from June 20-24, 2010, reflect that R2 received routine and as needed pain
medication. CMS Ex. 9, at 4. P. Ex. 12, at 4-8; CMS Ex. 13, at 29-33.

According to a nursing note dated June 24, 2010 at 1300 (1:00 p.m.), R2’s son reported
that R2 had signs/symptoms of discomfort. A nursing note written at 2000 (8:00 p.m.)
stated that an order was obtained for an x-ray of R2’s right hip. CMS Ex. 9, at 5; P. Ex.
12, at 8; CMS Ex. 13, at 33. The nurse wrote that R2 was non-weight bearing, and that
he complained of pain. R2 had hip protectors in place. P. Ex. 12, at 8; CMS Ex. 13, at
33. The x-rays of R2’s right hip showed a “suspected femoral neck fracture” and
“advanced osteoarthrosis.” P. Ex. 17, at 1; CMS Ex. 13, at 82. On July 13, 2010, R2 had
hip x-rays taken again, and the results showed a “right femoral neck fracture with mild
displacement.” P. Ex. 17, at 3; CMS Ex. 13, at 84.

Petitioner’s staff updated R2’s care plan on June 24, noting that he had a femoral neck
fracture of the right hip. The handwriting on the care plan suggests that R2 had an x-ray
on June 20, 2010. But June 20 was the date of his knee x-ray, and so it appears that this
entry was an error and should have read June 24, which was the date of his hip x-ray.
Under interventions, staff stated that R2 had a new order for no weight bearing. CMS
Ex. 9, at 5; P. Ex. 24, at 12; CMS Ex. 13, at 94.
25

R2’s treating physician, Dr. McLarey, who is also Petitioner’s hospice physician,
examined R2 on July 13, 2010. His progress note stated, among other things, that R2 was
experiencing trouble with walking and hip pain, and that a hip x-ray “has shown a
probable fracture of his right hip.” As part of his assessment, the physician stated that R2
had “[d]ebility with recent fall and fracture of hip, according to x-ray.” CMS Ex. 9, at 3;
CMS Ex. 13, at 47.

What CMS alleges with respect to R2 is that Petitioner made no attempt “to discover
what actions/inactions or other factors may have led to R2’s injuries other than the one
CNA statement regarding falling at the dining table.” CMS Br. at 9; see CMS Ex. 9, at 5.
CMS asserts that, in an interview, the DON stated that there was no need to conduct an
investigation or report the incidents to the state agency because the facility assumed R2’s
injury resulted from one of his falls. CMS Br. at 9; see CMS Ex. 9, at 5-6.

Petitioner contends that its staff appropriately assessed R2 as being a fall risk and
instituted interventions to reduce his risk of falls. Petitioner asserts that its staff
conducted a proper investigation to determine the cause of R2’s hip fracture. Petitioner
asserts further that because its staff was able to determine the source of R2’s hip fracture
from its investigation, his injury was not reportable to TDADS as an injury of unknown
source. P. Br. at 26.

As I discuss below, I am persuaded that the record shows that Petitioner investigated
R2’s hip fracture and that it was reasonable for Petitioner’s staff to conclude that his
broken hip resulted from one of his falls. Therefore, contrary to what CMS argues,
Petitioner was not required to report R2’s hip fracture to the state agency. It is also
evident from the record that Petitioner’s staff implemented several interventions to
address R2’s risk for falls.

It is undisputed that R2 was assessed at high risk for falls. Tr. at 313. 578. The record
shows that Petitioner completed a fall risk assessment for R2 when he was admitted on
April 28, 2010. P. Ex. 24, at 1-4; CMS Ex. 13, at 85-86. According to the assessment,
R2 had a history of falls. He wandered and paced, and had poor safety awareness related
to his dementia. P. Ex. 24, at 2. His family stated that R2 had fallen in the last 180 days
under unknown circumstances. P. Ex. 24, at 3; CMS Ex. 13, at 85. R2 exhibited the
following physical and cognitive limitations: a decline in functional status, impaired
hearing and vision, impaired judgment/decision-making, confusion/disorientation at all
times, signs of anxiety, lack of familiarity with surroundings, and a decline in cognitive
skills. P. Ex. 24, at 3-4; CMS Ex. 13, at 85-86.

In an interdisciplinary care plan progress note dated May 18, 2010, the interdisciplinary
care team noted that R2 was a fall risk and listed the following fall interventions: provide
redirection when pacing or wandering, monitor for agitation and anxiety; monitor for
toileting; and monitor medications for effectiveness and any side effects. P. Ex. 24, at 10.
26

As stated above, R2 fell in Petitioner’s dining room on June 12, 2010. According to
Petitioner’s incident/accident report, R2 was sitting at the table, stood up, and when the
CNA asked him to sit down, he “took a swing” at the CNA, which caused R2 to lose his
balance and fall, landing on his left side. P. Ex. 10, at 1; CMS Ex. 13, at 1. The CNA
summoned a nurse who assessed R2 and notified his treating physician and his family.
R2 sustained skin tears to his left elbow and left ear. P. Ex. 10, at 1; CMS Ex. 13, at 1.
According to the fall assessment, R2 had no complaints of pain. Staff initiated “Neuro
checks for 72 hours,” as well as “72 hours Nursing Notes.” P. Ex. 11, at 1; CMS Ex. 13,
at 3.

In addition to increasing the level of supervision of R2 following his fall, Petitioner
addressed R2’s fall in an “immediate needs care plan” dated June 12, 2010. As an
intervention, the care plan directed staff to assess for infection, dehydration, constipation,
and pain. Other possible interventions were performing neuro checks, checking vital
signs, and checking range of motion. P. Ex. 11, at 2; CMS Ex. 13, at 4.

On June 15, 2010, R2 apparently suffered another fall. According to the
incident/accident report, a CNA reported finding R2 sitting on the floor. P. Ex. 10, at 2;
CMS Ex. 13, at 2. As with R2’s earlier fall on June 12, Petitioner’s staff responded by
completing an “immediate needs care plan” that noted, among other possible
interventions, that R2 would have hip protectors. Besides this care plan, Petitioner’s staff
also updated R2’s interdisciplinary care plan on June 15, 2010. On this care plan,
Petitioner’s staff indicated that the following interventions would be put in place: use fall
risk screen to identify risk factors; observe for drug side effects; provide environmental
adaptations such as a low bed, adequate glare-free lighting, and area free of clutter;
remind R2 to sit on the side of his bed for a few minutes before transferring/standing
when rising from a lying position; educate/remind R2 to request assistance prior to
ambulation; and provide appropriate footwear. P. Ex. 24, at 11-12; CMS Ex. 13, at 93-
94.

The record shows that, on June 16, R2 was again found on the floor of his room.
According to the initial fall assessment for this incident, there were no witnesses to his
fall and R2 had no apparent injuries. R2 could not verbalize what happened. P. Ex. 11,
at 17; CMS Ex. 13, at 19.

Although R2 did not complain of pain following any of his falls on June 12, June 15, or
June 16, he began complaining of pain in his right leg and knee a few days later, on June
19, 2010. Petitioner’s staff responded by obtaining an order for an x-ray, and the nursing
notes reflect that x-rays taken of R2’s knee on June 20, 2010, were negative. As noted in
the record, R2’s treating physician prescribed R2 pain medication. R2 continued to
complain of pain, and on June 24, 2010, Petitioner’s staff obtained an order for an x-ray
of R2’s right hip. The x-rays of R2’s right hip showed a “suspected femoral neck
27

fracture” and “advanced osteoarthrosis.” P. Ex. 17, at 1; CMS Ex. 13, at 82. On July 13,
2010, another hip x-ray was taken which confirmed the fracture that was suspected on the
June 24" x-ray. P. Ex. 17, at 3; CMS Ex. 13, at 84.

Ms. Brooks testified that she interviewed the nurse aide involved in the June 12 dining
room incident and also interviewed the nurse aides who were taking care of R2 on June
16. Tr. at 693. According to Ms. Brooks, interventions in place for R2 to minimize his
risk for falls consisted of alarms, appropriate shoes or non-skid socks, and hip protectors.
Tr. at 696.

DON Cummins testified that after a resident has a fall, Petitioner’s staff then follows a
protocol whereby that resident is placed on increased monitoring. DON Cummins stated
that staff would monitor the resident “every shift for 72 hours” and document this in fall
monitoring notes. Tr. at 581; see P. Ex. 11 at 3-6. DON Cummins stated that R2 was
placed on increased monitoring after his June 12 fall. Tr. at 581.

DON Cummins testified further that, in investigating R2’s hip fracture, she consulted
with Dr. Younger, an orthopedic surgeon. Tr. at 592. She said that she had been curious
as to why R2 had a hip fracture when he complained of knee pain, and Dr. Younger
explained that “dementic patients frequently ... can’t tell you where it hurts, but if they
tub their knee they need to — you need to probably x-ray the knee and the hip.” Tr. at
591. DON Cummins testified that after talking to Dr. Younger, she concluded that R2’s
hip fracture was related to his falls. Tr. at 591-92. DON Cummins stated further that the
July 13, 2010 progress note by R2’s treating physician, Dr. McLarey, also helped to
“solidify [her] belief that the fracture came from the falls.” Tr. at 596. She stated that
she talked to Petitioner’s nurses and nurse aides, as well as R2’s family, during her
investigation. Tr. at 593. According to DON Cummins, her investigation did not reveal
any other incidents other than the three fall incidents that staff had documented. Tr. at
596. DON Cummins testified that because she knew what caused R2’s hip fracture and
had an explanation for it, his injury was not a reportable incident, and this is why
Petitioner did not report it to TDADS. Tr. at 593, 598.

The testimony of Administrator Honeyman corroborates DON Cummins’s testimony.
Ms. Honeyman testified that there was no question in her mind that R2’s fracture resulted
from his falls. She noted that R2 had a history of falls before he was admitted to
Petitioner’s facility. Tr. at 798. Ms. Honeyman stated that she consulted with Dr.
Younger, and he said that “always, always in the case of young children and non-
communicative adults, if they complain of knee and you don’t find a problem with the
knee, go to the hip.” Tr. at 803. She testified that Dr. McLarey’s July 13, 2010 progress
note also confirmed her belief that Petitioner did not have to report R2’s fracture to the
state authorities. Tr. at 804. Ms. Honeyman testified that she, Barbara Moore, and DON
Cummins all were of the opinion that because they had an explanation of what caused
28

R2’s fracture, the injury did not meet the criteria for reporting to TDADS. Tr. at 804,
806.

I find that, as with the incidents involving R1, Petitioner’s staff diligently investigated
R2’s hip fracture to determine what happened. According to DON Cummins, their
investigation turned up no other incidents other than the three fall incidents that staff had
documented. As part of the investigation, staff consulted with R2’s treating physician,
Dr. McLarey, and an orthopedic surgeon, Dr. Younger. Their medical opinions, together
with the fact that R2 had a history of falls and had fallen three times over the course of
five days, led staff to the reasonable belief that R2’s broken hip was caused by one of his
falls. Because Petitioner was able to identify an explanation for R2’s hip fracture through
its investigation, Petitioner did not report his injury to TDADS as an injury of unknown
source. I find Petitioner’s conclusion that R2’s hip fracture was fall-related to be a
reasonable explanation and thus I agree with Petitioner that it was not required to report
R2’s injury to the state agency. The record shows, moreover, that Petitioner
appropriately addressed R2’s risk for falls by implementing several interventions. I find
that, with respect to R2, Petitioner established by a preponderance of the evidence that it
was in compliance with 42 C.F.R. § 483.13(c)(2)-(4) (Tag F225).

Further, I find no basis to conclude that Petitioner was not in compliance with 42 C.F.R.
§ 483.13(c) (Tag F226) with respect to R2 and apply the same reasoning I set forth above
in my F226 discussion relating to Rl. As I stated above, Petitioner did have a policy in
place that addressed unexplained injuries. P. Ex. 19. Based on my conclusion that
Petitioner’s staff conducted a thorough investigation into R2’s hip fracture, there is no
basis to conclude that Petitioner failed to follow its abuse policies and procedures with
respect to R2. I find that, with respect to R2, Petitioner established by a preponderance
of the evidence that it was in compliance with 42 C.F.R. § 483.13(c ) (Tag F226).

3. Petitioner was in substantial compliance with the participation
requirement at 42 C.F.R. § 483.25(h) (Tag F323) .

The SOD alleges under Tag F323 that Petitioner violated 42 C.F.R. § 483.25(h) because
it failed to provide supervision and assistive devices to prevent accidents for R1 and R2,
failed to monitor direct care to ensure staff were using proper transfer techniques, and
failed to have an ongoing process to evaluate fall hazards and risks. CMS Ex. 9, at 18.
As part of this citation, the SOD lists the following examples:

a. Petitioner failed to identify the most effective and safe method to transfer R1,
who had a history of falls, fractures, and osteoporosis;

b. Petitioner failed to monitor and supervise direct care staff to ensure that they were
competent to employ safe transferring techniques;

c. Petitioner failed to educate/train, and monitor staff for the use of assistive devices,
such as gait belts; and
29

d. Petitioner failed to investigate all injuries or have a process to investigate injuries
and failed to have a process to evaluate accident and injury data in order to fully
evaluate fall hazards and risks.

CMS Ex. 9, at 18.

Petitioner responds that CMS has not identified any “accident” or “accident hazard”
sufficient to support a citation under Tag F323. Petitioner contends that its staff provided
proper supervision and assistance devices at all times to R1 and R2, and did not cause
either of their fractures. Moreover, Petitioner asserts that its staff properly investigated
their injuries. P. Br. at 31, 34.

I note that, under F323, most of the SOD’s factual allegations involving R1 and R2 are
the same allegations that formed the basis of the alleged deficiencies under Tags F225
and F226 (see supra, at 12-26). Therefore, I do not repeat them here. I find that the
evidence is sufficient to establish a prima facie case of noncompliance under Tag F323,
but that Petitioner has overcome CMS’s prima facie case by a preponderance of the
evidence.

RI

With respect to R1, I have already discussed the facts pertaining to this resident in my
discussion of Tags F225 and F226 above. Much of my discussion under Tag F323 is
based on my previous discussion of R1 under Tags F225 and F226. As I stated above, I
found that Petitioner’s staff identified R1 as being at high risk for falls (P. Ex. 31, at 11;
CMS Ex. 12, at 15) and addressed this risk in her care-planning with appropriate
preventive measures.

Moreover, I found that there was no failure by Petitioner’s staff to investigate R1’s leg
fracture. The evidence established that DON Cummins and former Administrator
Honeyman carried out a diligent investigation, but were unable to determine what
appened or when R1’s leg fracture occurred. As DON Cummins testified, they were
unable to determine that R1 had ever been dropped or had fallen or that any accident had
occurred. Tr. at 544, 561. That Petitioner’s staff was unable to determine whether any
external trauma had occurred was consistent with R1’s x-ray report, which stated that she
ad suffered a stress fracture. Even though there was nothing to suggest that R1’s leg
fracture was of a suspicious or truly unknown nature that warranted reporting to the state
agency, Petitioner reported R1’s injury as an incident of unknown origin “[t]o err on the
side of caution.” Tr. at 544.

As for CMS’s claims that Petitioner’s staff failed to identify the most effective and safe
way to transfer R1 and failed to monitor transfers, I am persuaded that Petitioner’s staff
appropriately addressed R1’s needs with respect to transfers. CMS argues that R1’s care
30

plan did not have any interventions that addressed R1’s transfer needs or methods. See
CMS Ex. 9, at 23-24. However, the record indicates otherwise. At the time of R1’s
admission on April 19, 2010, Petitioner’s nursing staff completed a Fall Risk
Assessment, which noted, among other things, that R1 had a history of falls, poor
balance, an unsteady gait, and poor safety awareness due to her cognitive impairments.
P. Ex. 29, at 2. The assessment stated further, “[s]taff will transfer, assist [with] all
ADLs. ... keep w/c close by, lock brakes before transferring. Bed in lowest position.
Keep pathways clear and well lit.” Further, R1’s care plan dated April 19, 2010, under
Approaches, explicitly instructed staff to “provide gentle care when assisting resident.”
P. Ex. 27, at 4. This approach was continued on July 27, 2010. P. Ex. 27, at 4. The
instructions and interventions described in these documents are all meant to ensure R1’s
safety during transfers. It is clear that Petitioner’s staff did not take R1’s safety or
supervision lightly, and sought to keep her environment as free of accident hazards as
possible.

There is an allegation in the SOD that the surveyor observed two CNAs transfer R1 from
er wheelchair to her bed. According to the SOD, the CNAs did not use a gait belt, and
put their arms underneath each of R1’s arms, and also grabbed her clothing. The SOD
alleges that the CNAs’ hands slid up R1’s body, moving her skirt around her waist. As
R1was released, her skirt was twisted around her waist, exposing her from the waist
down. CMS Ex. 9, at 25-26.

In response, Petitioner contends that its aides utilized proper transfer techniques that were
consistent with the facility’s transfer policy. P. Br. at 35. Petitioner asserts that R1 never
fell or had an accident. P. Br. at 32-33. Petitioner contends, moreover, that there is no
requirement that a gait belt be used at all times. According to Petitioner, in the absence
of a specific order pertaining to transfers (which R1 did not have), its aides have the
discretion to determine whether it is safe to transfer a resident with or without a gait belt.
P. Br. at 19 n5.

lam persuaded by the testimony of Petitioner’s witness, LVN Cara Brooks, who stated
that the CNAs are in the best position sometimes to know what a resident needs in terms
of transfer because they are with the resident “non-stop day in, day out.” Tr. at 697-98.
Ms. Brooks testified that, as the charge nurse, she communicates with the CNAs about a
resident’s transfer needs. Ms. Brooks stated that residents may need one type of transfer
in the morning and another type in the evening depending on their physical and mental
conditions. Tr. at 698. She stated further that some residents on the Younger unit are
frightened of gait belts, and because they have a different perception of reality, may for
example perceive a gait belt to be a snake. Tr. at 698. The fact that the CNAs did not use
a gait belt when transferring R1 does not constitute proof that they transferred R1 using
an improper technique. DON Cummins testified that the CNAs were proficient in
transfer techniques because they had all passed a competency exam. Tr. at 603. In light
of DON Cummins’ testimony and the fact that R1 was not injured or did not suffer any
31

pain during the transfer, I do not find that improper or unsafe transfer techniques were
used with RI.

R2

With respect to R2, I have already discussed the facts pertaining to this resident in my
discussion of Tags F225 and F226 above. CMS urges me to find a deficiency under F323
based on the fact that R2 had three fall incidents and sustained a right hip fracture. CMS
argues that “Petitioner failed to reevaluate the risks and hazards as to why R2 had fallen
and to determine which interventions were not working and what needed to change to
prevent future falls . . . Petitioner just assumed that the hip fracture occurred as a result of
one of the falls without determining why he was sustaining these falls.” CMS Br. at 28.

R2’s fall activity and hip fracture, in and of themselves, do not suffice to prove that
Petitioner’s supervision of R2 was somehow inadequate. As I stated in my discussion
under Tags F225 and F226, Petitioner’s staff properly investigated R2’s hip fracture to
determine how it occurred and concluded that his fracture resulted from his recent falls.
Although Petitioner’s staff could not determine which of R2’s three falls caused his
fracture, it seems far more likely than not that his injury happened as a result of the
dining room fall incident, in which he engaged in combative behavior toward a CNA, lost
his balance, and fell on his side. I agree with Petitioner that its staff was not required to
report R2’s hip fracture to the state agency since a plausible explanation existed for the
injury, and no neglect or abuse was involved in the incident.

I thus find no basis to conclude that Petitioner failed to provide supervision and assistive
devices to prevent accidents for R2. Petitioner appropriately addressed R2’s risk for
falls, and provided him with adequate supervision, which included various interventions
after his second fall incident. I cannot identify any accident hazards that existed on the
dates of his falls, and it is obvious that Petitioner cannot be held responsible for R2’s
aggressive behavior in the dining room.

With respect to the allegation that there was a failure to educate and train staff in the use
of assistive devices, Petitioner asserts that staff education and training do not fall under a
Tag F323 citation. Nevertheless, Petitioner contends that it has an aggressive staff
training program that deals with topics such as resident transfers, lifting procedures, fall
prevention, and resident safety. Inasmuch as Petitioner is correct that the regulation at 42
C.F.R. § 483.25(h) (Tag F323) does not address staff training or competency in using
assistive devices, it is unnecessary for me to address CMS’s contention.

As for CMS’s claim that Petitioner failed to have a process to evaluate accident and
injury data, Petitioner contends that this also is not the proper subject matter for a Tag
F323 citation. Petitioner asserts, nevertheless, that CMS’s contention is incorrect.
Petitioner argues that it has produced documentation that shows, among other things, that
32

it tracks falls by unit (Mabee versus Younger), by hall, and by shift, and whether the fall
occurred with an injury or was associated with restraints. P. Br. at 34; P. Ex. 22.
According to DON Cummins, Petitioner’s staff tracks falls monthly and discusses every
fall at their meetings. Tr. at 614. I note that, on cross examination, CMS’s surveyor, Ms.
Adams, acknowledged that she had seen Petitioner’s documentation for tracking falls
when she was at the facility and admitted that the documents showed that Petitioner’s
staff tracked falls in different ways. Tr. at 369-71.

The evidence shows that R1 and R2 were properly supervised, that their fractures did not
result from Petitioner’s actions or inactions, and that Petitioner’s staff properly
investigated their injuries. I find that Petitioner established by a preponderance of the
evidence that it was in compliance with 42 C.F.R. § 483.25(h) (Tag F323).

4. Petitioner was in substantial compliance with the participation
requirement at 42 C.F.R. § 483.75(f) (Tag F498) .

42 C.F.R. § 483.75(f) requires that:

The facility must ensure that nurse aides are able to demonstrate competency in
skills and techniques necessary to care for residents’ needs, as identified through
resident assessments, and described in the plan of care.

The SOD alleges under Tag F498 that Petitioner violated 42 C.F.R. § 483.75(f) because it
failed to ensure that five nurse aides were able to demonstrate competency in skills and
techniques necessary to perform transfers, and cited examples involving R3, R4, and RS:

a. CNAs C and D failed to use a sit-to-stand mechanical lift properly, resulting in R3
hitting his foot on the lift and bearing his weight on his shoulders, putting him at
risk for injury;"!

b. CNA E failed to use proper lifting techniques to gently lift R4 from her chair and
jerked her from the chair, and failed to coordinate R5’s lift with a lifting partner
which resulted in pain for the resident. '?

Surveyor Adams testified that she observed transfers of R3, R4, and R5, and that she
cited a deficiency based on the nurse aides “employing improper lifting techniques,

"Tn the SOD, the first example with CNAs C and D mentions “Resident #2,” which
appears to be a typographic error since R2 is not one of the three residents involved in
this citation. I have therefore substituted “Resident 2” with “R3.”

© Tnote that, in discussing this alleged deficiency in its posthearing brief (P. Br. at 35),
Petitioner discusses the transfer involving R1; however, the SOD alleges that Petitioner’s
CNAs employed improper transfer techniques with respect to only R3, R4, and RS.
Therefore, I do not discuss the transfer involving R1 under this deficiency tag.
33

transfer techniques.” Tr. at 230. With respect to R3, Surveyor Adams stated that his
private sitter expressed concerns to her about how staff handled him during transfers. Tr.
at 230-31. Surveyor Adams testified that she observed CNAs C and D improperly using
a “sit-to-stand lift device” called a SARA lift when they transferred R3. Tr. 231, 234.
According to Surveyor Adams, R3’s feet have to be placed on the base of the device, and
the CNAs “kind of hit his foot on the bottom of the device, and he kind of hollered out.”
Surveyor Adams stated that the CNAs put a sheepskin strap around R3’s back and then
proceed to lift him with the device. Surveyor Adams stated that “they lifted him pretty
fast” and in the process, the strap slid up his body and R3 “dropped his weight onto the
strap and sort of hung from the strap.” She stated that the CNAs did not readjust R3 and
lowered him to the bed, and R3 “just fell back onto the bed” because neither of the CNAs
helped guide him down. Tr. at 321-32. In Surveyor Adams’ opinion, this was an
inappropriate transfer because R3’s hanging from the strap placed him at risk for a “soft
tissue or bone injury in the shoulder” and the failure to guide his release put him at risk
for falling off the bed. Tr. at 232, 234-35.

With respect to R4’s transfer, Surveyor Adams testified that R4 was seated in a
wheelchair and CNA E transferred her from her wheelchair to a stationary chair. She
stated that the CNA properly applied the gait belt, but the CNA reached around her back
and jerked her up from the seated position to a standing position. Tr. at 233, 235. As for
R5, Surveyor Adams testified that CNA E and LVN A transferred RS from a chair to a
wheelchair. She stated that the CNA properly applied the gait belt, but the CNA “jerked
her up.” According to Surveyor Adams, there was no coordination between the CNA and
the LVN, and the CNA “did most of the work.” Tr. at 234. She said that R5 “was
hollering” but she didn’t know if it was from pain or fear. Tr. at 234.

Petitioner disputes whether the surveyor actually observed any CNAs performing
transfers and contends that the surveyor’s observations are unreliable. P. Br. at 37-38.
With respect to R3, Petitioner argues that the surveyor did not personally observe any of
the incidents that were conveyed by R3’s private sitter, so relying on those alleged
incidents as the basis for a deficiency is improper. P. Br. at 35-36. Petitioner contends
that there is no evidence that the CNAs did anything wrong when they transferred R3
with the SARA lift. Petitioner contends further that the surveyor improperly relied on
comments and noises made by the Resident in describing the resident as frightened. P.
Br. at 35-36. With respect to R4, Petitioner contends that the CNA in question did not
jerk R4 when executing the transfer. Petitioner claims that there is no basis on which to
conclude that the transfer was painful to R4. P. Br. at 36. With respect to R5, Petitioner
disputes that there was a lack of coordination between the CNA and LVN when they
transferred her, arguing that RS “was not a two person transfer.” Petitioner claims that
there is no evidence that the transfer caused any pain to RS. P. Br. at 36-37.

Petitioner has not offered any evidence that directly rebuts Surveyor Adams’ testimony
relating to her personal observations of the resident transfers. Petitioner instead offered
34

the testimony of DON Cummins, who stated that each of the CNAs in question under Tag
F498 had passed a competency exam that tested, among other things, their proficiency in
transfer techniques. Tr. at 603.

Based on Surveyor Adams’ testimony, it appears that R3, R4, and R5 were “mishandled”
by the CNAs during their transfers. However, I find DON Cummins to be credible and
accept her testimony that the CNAs possessed competent skills in the area of transfers. I
note also that there is no allegation by CMS that any of these residents suffered pain or
injury during the transfers. In fact, Surveyor Adams admitted on cross-examination that
during the survey, she never saw any resident dropped during a transfer. Tr. at 373.
Given the fact that R3, R4, and R5 did not suffer any harm or pain, I find that any
mishandling by the CNAs that may have occurred during their transfers did not pose a
risk for more than minimal harm. Therefore, I conclude that Petitioner was not out of
compliance with 42 C.F.R. § 483.75(f).

5. Petitioner was in substantial compliance with the participation
requirement at 42 C.F.R. § 483.13(c ) (Tag F226).

October 4, 2010 survey

The SOD dated October 4, 2010, alleges that Petitioner violated the Medicare
participation requirement at 42 C.F.R. § 483.13(c) (Tag F226). As I have discussed
above, the regulation at 42 C.F.R. § 483.13(c) requires that a facility develop and
implement written policies and procedures prohibiting mistreatment, neglect, and abuse
of residents and the misappropriation of residents’ property. 42 C.F.R. § 483.13(c).

With respect to this citation, the SOD alleges that, based on interview and record review,
Petitioner failed to follow its own abuse policy by not obtaining a written statement from
an alleged perpetrator, CNA A, who became the subject of an extremely vague
accusation of abuse by R1.

According to the SOD, Petitioner documented an incident of alleged abuse in a Provider
Investigation Report dated September 2, 2010. The report stated that R1 claimed that a
CNA (CNA A) hit her on the hand during her shower. R1 could not recall when it
happened and could not describe how the CNA struck her. R1’s allegation remained
consistent on her second interview. The report describes R1’s injury as “very small, light
bruise to back of hand — no swelling.” According to the report, both charge nurses on
duty assessed R1 for signs of physical abuse and noted two small light bruises to the back
side of her right hand. The report states that “[t]he alleged perpetrator was released from
duty pending the outcome of the investigation. The Administrator went to the facility to
gather the necessary statements and to begin the investigation. The doctor was notified
by phone.” CMS Ex. 16, at 2; P. Ex. 36, at 1-3; CMS Ex. 19, at 2-4.
35

Administrator Honeyman wrote an Investigation Summary. CMS Ex. 19, at 5-7. Ms.
Honeyman stated that Rlwas severely impaired cognitively, suffered from delusions, had
a diagnosis of Alzheimer’s disease, was confused to place and time, and had daily
episodes of disorientation. CMS Ex.16, at 3; P. Ex. 36, at 4; CMS Ex. 19, at 5. She
stated that “[a]ll of the charge nurses, most of the CNA’s on the unit and the ADON were
interviewed . . . None of them could recall or report any incident of mistreatment by
CNA Aj.” CMS Ex. 16, at 3; P. Ex. 36, at 4-5; CMS Ex. 19, at 5-6. According to Ms.
Honeyman, many of the staff said that R1 had “accused them of things that weren’t true.”
Ms. Honeyman noted that she attempted to interview other residents regarding the work
abits and treatment rendered by CNA A, but there were no reliable historians since all
are “mid-to-late stage dementia patients.” CMS Ex. 16, at 4; P. Ex. 36, at 5; CMS Ex. 19,
at 6. She interviewed R1’s responsible party/Power of Attorney (who was a relative and
was the one who had reported the alleged abuse), who stated that “she knows that [R1]
believes a lot of things that are not true.” When Ms. Honeyman interviewed R1, R1 told
er the bruise on her hand happened when “Betty Black” hit her during her shower. Ms.
Honeyman stated that Rl could not say when the shower occurred or how “Betty Black”
ad hit her. She noted that R1 also mentioned someone named “Etta,” but there was no
one named Etta employed by the facility. CMS Ex. 16, at 4; P. Ex. 36, at 6; CMS Ex. 19,
at 7.

The SOD references Petitioner’s Abuse Prevention policy and procedure dated
September 1, 1999 (revised on November 9, 2007), and noted that, with respect to
investigating, that policy reads: “All allegations will be investigated by the
Administrator and/or Department Head. . .. Accused abusers will write their own
statement as close to the report as possible and before being walked off the campus. It
will be completed by the interviewing team.” CMS Ex. 16, at 2; CMS Ex. 14, at 3. The
SOD states that Petitioner’s policy was signed by the Administrator, who is Petitioner’s
Abuse Prevention Coordinator. CMS Ex. 16, at 2; CMS Ex. 14, at 3.

Petitioner points out that the regulation associated with Tag F226 is 42 C.F.R.

§ 483.13(c), which requires a facility to develop and implement written policies and
procedures that prohibit mistreatment, neglect, and abuse of residents and
misappropriation of resident property. Thus, according to Petitioner, CMS’s allegation
that it failed to thoroughly investigate an allegation of abuse cannot be cited under Tag
F226. Petitioner contends further that even if CMS relied on the proper tag, the evidence
shows that Petitioner did thoroughly investigate the incident involving R1 and the CNA,
and that Petitioner did develop and implement its abuse prohibition policies. Petitioner
asserts that it conducted the abuse investigation in accordance with the version of its
facility policy in effect at the time. P. Br. at 42.

Apparently, at the survey, Petitioner’s DON or someone on staff mistakenly gave the
surveyor a 2007 facility policy on abuse investigation that was not the most recent policy
in effect at the time of the survey. P. Ex. 34; P. Br. at 41-42. Petitioner’s 2007 policy

36

required that, in investigations of possible abuse, a written statement be obtained from the
alleged perpetrator prior to the perpetrator being suspended from duty. P. Br. at 41.
Petitioner contends that its current policy, revised in December 2009, does not require a
written statement from the alleged perpetrator. Thus, Petitioner argues that the fact that
its management did not obtain a written statement from CNA A, the alleged perpetrator
accused of abusing R1, conforms to its applicable policy and does not constitute a failure
to thoroughly investigate the alleged abuse.

In examining the incident of alleged abuse involving CNA A and R1, it is important to
consider that R1 gave very incomplete — and perhaps inaccurate — information when
making her accusation. The record shows that R1 told her responsible party/power of
attorney (who was R1’s relative) that a CNA had hit her on the hand during her shower.
RI stated the CNA was “Betty Black.”'* Both Administrator Honeyman and DON
Cummins testified that there is no person named “Betty Black” working at Petitioner’s
facility, but there is an African-American aide named Betty Medlock who occasionally
cares for R1. Tr. at 605-06; 755-56. Based on this, they determined that the CNA to
whom R1 was referring was perhaps Betty Medlock. Tr. at 606. The charge nurses Cara
Brooks and Erica Ortiz then interviewed Ms. Medlock, who denied the allegation. Tr. at
606. 686-87, 730-31, 782. According to Ms. Brooks, they did not take a written
statement from Ms. Medlock. Tr. at 689-90. Administrator Honeyman ordered that Ms.
Medlock be sent home pending the outcome of the facility’s investigation of the alleged
abuse. Tr. at 688, 731, 756. Petitioner reported the incident to the state agency. Tr. at
757-58; P. Ex. 36, at 1-3; CMS Ex. 19, at 2-4. Petitioner’s investigation determined that
the allegation was unfounded and Ms. Medlock returned to the facility after being out
three days. Tr. at 734.

I find that Petitioner’s staff responded to R1’s allegation of abuse by doing the best it
could be expected to do under the circumstances. It should be understood that R1’s
physical and cognitive deficits left her allegation uncertain for two fundamental reasons:
not only was R1unable to identify the subject CNA in any useful way, but her very claim
that an act of abuse had occurred was open to some question. Nevertheless, the record
shows that Administrator Honeyman, DON Cummins, and the nursing staff took R1’s
allegation seriously and conducted a thorough investigation. By temporarily suspending
Betty Medlock, and then diligently attempting to determine what might have actually
happened, Petitioner’s staff went well beyond the need to get a written statement from
Ms. Medlock, who was never actually identified as the person to whom R1 referred. I

'3 Petitioner’s witness, LVN Cara Brooks, who was R1’s charge nurse at the time,
testified that R1’s power of attorney stated that R1 had also mentioned another person
named “Etta.” Ms. Brooks testified that there is no one named Etta on Petitioner’s staff.
Tr. at 683-84.
37

find that Petitioner established by a preponderance of the evidence that it was in
compliance with 42 C.F.R. § 483.13(c) (Tag F226).

6. CMP’s of $600 and $150 per day respectively, are unreasonable
based on the facts of this case as there are no violations and therefore
no basis for the imposition of CMP’s.

The remedy determinations made by CMS in this case are premised on the findings of
noncompliance made during the three surveys. I have found that Petitioner was in
compliance with applicable participation requirements. Consequently, there is no basis
for CMS to impose remedies against Petitioner.

V. Conclusion

For the reasons set forth above, I conclude that Petitioner was in substantial compliance
with Medicare participation requirements at issue in this case, and therefore, no
enforcement remedy may be imposed by CMS.

/s/
Richard J. Smith
Administrative Law Judge