Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Glenburn Home, ) Date: October 5, 2009

(CCN: 15-5524), )
)
Petitioner, )
)

-V.- ) Docket No. C-07-321

) Decision No. CR2014
Centers for Medicare & Medicaid )
Services. )

)
DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to
impose a one-day civil money penalty (CMP) in the amount of $10,000 against Glenburn
Home (Petitioner or facility).

I. Background

Petitioner is a Medicare certified skilled nursing facility doing business in Linton,
Indiana. Although Petitioner underwent several surveys in a survey cycle from
September 2006 through March 2007 where several deficiencies were noted, the only
survey at issue for my review is Petitioner’s challenge to the immediate jeopardy finding
from a survey completed October 17, 2006. The surveyors of the Indiana State
Department of Health (Survey agency) determined Petitioner to be out of compliance
with several participation requirements, and a Statement of Deficiencies (SOD) dated
October 17, 2006, was issued to Petitioner which outlined the survey findings. CMS
concurred with the surveyors’ findings of noncompliance and, by letter dated January 11,
2007, notified Petitioner of the proposed sanction of a one-day CMP in the amount of
$10,000 for October 17, 2006. The CMP is based on alleged noncompliance with three
deficiency tags ( F221, F224 and F324) at the immediate jeopardy level.

On March 12, 2007, Petitioner timely requested a hearing (Request for Hearing) before an
administrative law judge (ALJ). The case was assigned to me on March 22, 2007, for
hearing and a decision. In its Request for Hearing, Petitioner states that it is only
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contesting the alleged deficiency tags which rise to the level of immediate jeopardy;
specifically, tags F221, F224 and F324, as identified in the October 17, 2006 Sop.!
Petitioner is also not contesting the reasonableness of the amount of the CMP imposed for
the three immediate jeopardy level deficiencies identified in the October 17, 2006 SOD.
Rather, Petitioner challenges CMS’s determination that the alleged noncompliance
constituted immediate jeopardy, stating that CMS’s determination is clearly erroneous.

The parties filed a Joint Statement of Issues Presented for Hearing, dated October 22,
2007 (Jt. Stip.) which further narrowed the issues Petitioner is challenging. Petitioner
stipulated that it only wishes to challenge its compliance with F221 (example 1), F224,
and F324 (examples A.1 and B.1). See Jt. Stip. CMS stipulated that the examples not
contested by Petitioner are not part of the immediate jeopardy finding at tags F221 and
F324. Id.

As a threshold matter, my review is limited to those issues that Petitioner has appealed and
over which I have jurisdiction. Inasmuch as Petitioner does not challenge all the
deficiencies cited in the October 17, 2006 SOD, those findings and remedies remain
uncontested and are, therefore, final and binding against Petitioner. 42 C.F.R.

§ 498.20(b).

A schedule was established for the parties to file written submissions including proposed
witness and exhibit lists and prehearing briefs. On October 22, 2007, Petitioner filed its
request for issuance of subpoenas, and, on October 25, 2007, CMS filed its objection to
Petitioner’s request. I denied Petitioner’s request for subpoenas based on: (1) untimely
filing; (2) failure to adhere to the requirements outlined in my Order of June 25, 2007; and
(3) failure to comply with the requirements of 42 C.F.R. § 498.58.

' In its Request for Hearing Petitioner states that it waives its right to contest any
of the other deficiencies and the related remedies imposed by CMS - these include the
non-immediate jeopardy CMP, a denial of payment for new admissions (DPNA), and the
loss of its nurse aide training and certification program (NATCEP) as outlined in a notice
letter from CMS dated February 23, 2007 and which relate to surveys conducted at
Petitioners facility on September 12, 2006, December 7, 2006 and December 21, 2007.
Therefore, Petitioner has limited its challenge to only the three immediate jeopardy level
deficiencies found during the October 17, 2006 survey of its facility. See Request for
Hearing; see also CMS Notices dated January 11, 2007 and February 23, 2007. CMS
Exhibits (Exs.) 3, 4; Joint Statement of Issues Presented for Hearing, dated October 22,
2007.

> See discussion of ruling at transcript page (Tr.) 8-10. In its objection to
Petitioner’s request for subpoenas, CMS agreed to voluntarily produce two of the three
surveyors Petitioner requested be subpoenaed for the limited purpose of explaining
notations in their surveyor notes relating to two residents, Resident 6 and Resident 20.
3

An in-person hearing was convened in this matter from November 5 through 9, 2007, in
Indianapolis, Indiana. During the course of the hearing, there being no objections, the
following exhibits were admitted: CMS Exs. | through 46°, and Petitioner (P.) Exs. 1 and
2. Tr. 7,8. During testimony, Petitioner proffered P. Ex. 3 which CMS objected to. P.
Ex. 3 was not admitted by me into evidence.’ Tr. 296.

At hearing, CMS called as witnesses three surveyors: Melinda Lewis, Registered Nurse
(RN); Marla Potts, R.N.; and Anne Marie Crays, R.N. Petitioner elicited the testimony of
witnesses Mandy Moore, Certified Nurse Aide (CNA) and Nancy Anderson, Activities
Director.’

A transcript of the proceeding was prepared and the parties were given an opportunity to
identify any prejudicial errors. CMS filed a list of errors on December 3, 2007, none of
which was noted as prejudicial. CMS’s list will remain with the record of proceedings. No
objections or conflicting statement of errata was filed by Petitioner.

The parties submitted post-hearing briefs and CMS filed a reply brief (CMS Br. and CMS
Reply; and P. Br.°). Petitioner declined to file a reply brief.

> At hearing Petitioner stated that due to the narrowing of issues in its appeal
before me (See Jt. Stip.), some of the nursing notes included in CMS Exs. 1-46 no longer
apply to the deficiencies before me, however, as CMS chose to include the nursing notes
in its proffered exhibits, Petitioner made note of its blanket objection to any hearsay
statements in CMS Exs. 1-46. I therefore take judicial note of Petitioner’s objection.

* Although not admitted, P. Ex. 3 is included in the case record file and marked
separate in the event Petitioner wishes to appeal this decision. Tr. 296.

5 At the hearing, Petitioner requested to have Sharon Reines, R.N., who also served
at the facility as the MDS (Minimum Data Set) Coordinator, testify as a witness. CMS
objected. Petitioner’s amended witness list was not received by either CMS or my office
by the hearing date, and as I found grounds for prejudice to CMS, Petitioner’s request was
denied. See discussion and ruling at Tr. 16-17.

® | note that Petitioner attached to its post-hearing brief a 28-page document titled
Revised Long-Term Care Facility Resident Assessment Instruction User’s Manual
Version 2.0, Chapter 1, at 1-20, Centers for Medicare & Medicaid Services (December
2002, revised January 2008). The document is included in the case record file but not
admitted as an exhibit.
4

This decision is based on the complete record which includes the parties’ arguments,
written submissions, all exhibits admitted into the record, and the witness testimony
adduced during the hearing.

Il. Issues
The issues in this case are whether:

1. Petitioner was in substantial compliance with tags F221 (example 1), F224, and
F324 (examples A.1 and B.1) during the October 17, 2006 survey; and, if not,

2. CMS’s determination that the noncompliance with tags F221 (example 1), F224,
and F324 (examples A.1 and B.1) during the October 17, 2006 survey constituted
immediate jeopardy was clearly erroneous

Ill. Applicable Law

Long-term care providers, such as Petitioner, participate in the Medicare program by
entering into provider agreements with the Department of Health and Human Services
(HHS). Requirements of participation are imposed by statute and regulation. See Social
Security Act (Act) §§ 1819, 1919; 42 C.F.R. Parts 483, 488, and 489. In order to continue
participation in the Medicare program, providers must remain in substantial compliance
with program requirements. To be in substantial compliance, a facility’s deficiencies may
pose no greater risk to resident health and safety than “the potential for causing minimal
harm.” 42 C.F.R. § 488.301.

Ifa facility is not in substantial compliance with program requirements, CMS has the
authority to impose one or more of the enforcement remedies listed in 42 C.F.R.
§ 488.406, which includes imposing a CMP. Act § 1819(h). CMS may impose a CMP
for the number of days that the facility is not in substantial compliance with one or more
program requirements, or for each instance that a facility is not in substantial compliance.
42 C.F.R. §§ 488.430(a), 488.440. The presence of a single deficiency cited at the D-
level or above is sufficient to establish a facility’s noncompliance with applicable
regulations and authorize the imposition of remedies. Beechwood Sanitarium, DAB No.
1824 (2002).

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 CMP, of from $3050 per day to $10,000 per day, is reserved for deficiencies that
constitute 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). The lower range of CMP,
from $50 per day to $3000 per day, is reserved for deficiencies that do not constitute

5

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).

The Act and regulations make a hearing before an ALJ available to a long-term facility
against whom CMS has determined to impose a CMP. Act § 1128A(c)(2); 42 C.F.R.

§§ 488.408(g), 498.3(b)(13). The ALJ’s review is generally limited to two general issues,
i.e., whether there is a basis for the imposition of enforcement remedies, and whether the
remedies CMS proposes are reasonable. 42 C.F.R. §§ 488.408(g), 488.438(e), 489.53(d),
498.3, 498.5(b). The ALJ’s review and decision on these issues is de novo and the
Departmental Appeals Board (the Board) has consistently so ruled. See, e.g., Emerald
Oaks, DAB No. 1800, at 11 (2001) (ALJ makes no finding regarding how CMS made its
determination, but makes an independent determination based upon the evidence of
record); Beechwood Sanitarium, DAB No. 1906, at 29 (2004) (what CMS knew or how it
made it’s decision is simply immaterial to the ALJ); The Residence at Salem Woods, DAB
No. 2052, at 11 n.5 (2006) (ALJ is bound to make an independent determination of
reasonableness of remedy based upon evidence developed at hearing); Cal Turner
Extended Care, DAB No. 2030, at 7 (2006) (ALJ does not conduct a quasi-appellate
review of the CMS determination, but makes an independent determination based upon
the evidence developed before the ALJ).

A facility has a right to appeal a “certification of noncompliance leading to an
enforcement remedy.” 42 C.F.R. § 488.408(g)(1); see also 42 C.F.R. §§ 488.330(e) and
498.3. However, the choice of remedies by CMS or the factors CMS considered when
choosing remedies are not subject to review. 42 C.F.R. § 488.408(g)(2). A facility may
only challenge the scope and severity level of noncompliance found by CMS if a
successful challenge would affect the range of the CMP that could be collected by CMS or
impact upon the facility’s nurse aide training program. 42 C.F.R. §§ 498.3(b)(14) and
(d)(10)(i). CMS’s determination as to the level of noncompliance “must be upheld unless
it is clearly erroneous.” 42 C.F.R. § 498.60(c)(2). This includes CMS’s finding of
immediate jeopardy. Woodstock Care Center, DAB No. 1726, at 9, 38 (2000), aff‘,
Woodstock Care Center v. Thompson, 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). Review
of a CMP by an ALJ is governed by 42 C.F.R. § 488.438(e).

Pursuant to 42 C.F.R. § 488.301, “(i)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 a resident.” (Emphasis in
original). Further, “(s)ubstantial compliance means a level of compliance with the
requirements of participation such that any identified deficiencies pose no greater risk to
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resident health or safety than the potential for causing minimal harm.” (Emphasis in
original).

IV. Burden of Proof

When a penalty is imposed and appealed, CMS must establishe a prima facie case that the
facility was not in substantial compliance with federal participation requirements. To
prevail, the facility must overcome CMS’s showing by a preponderance of evidence.
Emerald Oaks, DAB No. 1800, at 4 (2001); Cross Creek Health Care Center, DAB No.
1665 (1998), applying Hillman Rehabilitation Center, DAB No. 1611 (1997), affd@
Hillman Rehabilitation Center v. HHS, No. 98-3789 (GEB), slip op. at 25 (D.N.J. May 13,
1999). I adopt the burden as set forth in the Board’s decision in the Hillman case, and as
stated and discussed in detail in the Batavia Nursing and Convalescent Center and
Batavia Nursing and Convalescent Inn cases. See Batavia Nursing and Convalescent
Center, DAB No. 1904 (2004); and Batavia Nursing and Convalescent Inn, DAB No.
1911 (2004).

V. Findings of fact, conclusions of law and discussion.

I make findings of fact and conclusions of law (Findings) to support my decision in this
case. I state each Finding, below, as a separate heading. I discuss each Finding in detail.

A. The evidence establishes that as of the October 17, 2006 survey
Petitioner did not comply substantially with the requirements of 42
C.F.R. § 483.13(a) - tag F221 - Quality of Care - Physical Restraints.

The regulation that is at issue here governs a facility’s use of physical restraints. The
regulation provides that a “resident has the right to be free from any physical or chemical
restraints imposed for purposes of discipline or convenience, and not required to treat the
resident’s medical symptoms.” 42 C.F.R. § 483.13(a). The regulation at 42 C.F.R.

§ 483.13(a) prohibits providers from using physical restraints for purposes of discipline or
convenience and prohibits using restraints that are not required to treat the resident’s
medical symptoms.

Petitioner was found to be in violation of this regulation at a scope and severity level of
immediate jeopardy. CMS Ex. 1, at 6. The SOD dated October 17, 2006, states that
Petitioner failed to ensure the least restrictive physical restraint was used to treat residents’
medical symptoms. Id. at 6. CMS alleges that: (1) Petitioner failed to assess Resident 20
for use of a thigh belt restraint both prior to implementation of the restraint and after the
resident exhibited dangerous behavior while in the restraint; (2) Petitioner failed to review
alternatives to restraints prior to implementing use of the thigh belt restraint; and (3)
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Petitioner failed to obtain consent for use of the restraint from the resident’s legal
guardian. CMS Br. at 24, 25.

Resident 20, a 74-year-old male, was admitted to Petitioner’s facility on June 9, 2006
following a fall at home where he sustained a head injury. CMS Ex. 19, at 8. A history
and physical exam from the transferring hospital indicates that he was admitted to the
hospital on June 8 for severe agitation and dementia. /d. at 156. Resident 20’s diagnoses
at the time of his admission to Petitioner’s facility included progressive dementia, severe
acute agitation and confusion, and coronary artery and small vessel disease. Jd. at 157.
Resident 20 is also noted as having short and long term memory problems and severely
impaired cognitive skills for decision making. /d. at 8. On June 12, 2006, Resident 20
was assessed as a moderate risk for falls. Jd. at 4. The resident’s family informed facility
staff upon admission that at home the resident “wanders to the point of exhaustion,” and
that Resident 20 had adverse reactions to most chemical restraint medicines used. Jd. at 8.

Four days following Resident 20’s admission to Petitioner’s facility, his physician ordered
use of a padded Broda chair thigh belt’ for his unsteady gait and wandering to the point of
exhaustion. CMS Ex. 19, at 119. The resident was also placed on Paxil 10 milligrams
(mg) for depression and anxiety. /d. The physician’s order states the resident could be
sent to the “behavioral unit if necessary as needed.” Jd. On June 12, a PRN order was
processed which provided for use of a thigh belt as a last option. On June 14, 2006, a
physician’s order was obtained for physical therapy to evaluate the resident’s unsteady
gait. Id. Also, on June 16 the resident’s Paxil dosage was increased from 10 mg to 20 mg
due to his behaviors and signs of agitation. /d. at 120. The resident’s record also notes
that on June 16 an order was obtained for the resident to be transferred to the Davis
County Behavior Unit. On June 22, a physician’s order was obtained for Resident 20 to be
seen by a psychologist, Dr. Forestor. Id.

The parties do not dispute that the thigh belt used for Resident 20 was a physical restraint.
Rather, CMS claims that Petitioner did not properly assess Resident 20 to determine the
appropriateness of the use of the thigh belt restraint in the Broda chair prior to its
implementation. CMS Br. at 24. CMS’s State Operations Manual (SOM) requires that the
medical symptom which warrants the use of a restraint be documented in the resident’s
medical record, that there be ongoing assessments, and documentation in the resident’s
care plans. Pub. 100-07, SOM, Appendix PP - Guidance to Surveyors for Long Term
Care Facilities (discussing tag 221). A physician’s order alone is not sufficient to warrant

7 Broda chairs are positioning chairs used for medium to high level care residents.
CMS Ex. 44, at 4. A thigh belt is a one-piece position device used for pelvic positioning.
It leaves the hips and upper torso unrestrained to minimize a resident sliding under the
belt. Id. at 44, at 1, 7-8 (picture of Broda chair and thigh belt); see also Tr. 30-22.
8

the use of restraints. A facility is responsible for assessing and care planning restraint use
on an ongoing bases and must “engage in a systematic and gradual process toward
reducing restraints.” Jd.

Petitioner’s physical restraint policy identifies the process staff are to follow when a
physical restraint is employed for a resident of the facility. The policy requires that an
assessment be undertaken and “[{r]esidents at risk for restraint use will be identified
through the MDS, At Risk For Falls Assessment and through a multi disciplinary
assessment process.” CMS Ex. 36, at 1. The policy further requires that the
interdisciplinary team “must” [a]ssure that all possible alternative methods have been
assessed for appropriateness. This assessment must be documented on the Medical
Record.” CMS Ex. 36, at 1-2.

1. Petitioner failed to assess Resident 20 before use of a thigh belt
restraint.

CMS maintains that Petitioner had no record that an assessment was completed to
determine if the restraint used on Resident 20 was necessary. CMS Br. at 11. Petitioner
advances several arguments in support of its assertion that Resident 20 was properly
assessed prior to the implementation of the thigh belt. I address each of Petitioner's
arguments separately.

a. Petitioner contends that the initial restraint assessment
was stolen.

Petitioner states that the proper restraint assessment had been completed, but had been
removed from Resident 20’s chart by a disgruntled nurse. According to Petitioner that
individual stole the restraint assessment records in July 2006. P. Br. at 3 As evidence to
support this claim, Petitioner provides a copy of the July 31, 2006 discharge notice
indicating that the employee “[a]dmitted to taking confidential information home and
destroyed part of it, brought part of it back to facility.” P. Ex. 1, at 9. Petitioner also
provides a copy of a November 26, 2006 letter it filed with the Consumer Protection
Division regarding the disgruntled nurse who removed the forms from the facility. P. Ex.
1, at 2. Petitioner claims that it was not until staff looked for the form in question during
the survey that facility staff realized that Resident 20’s assessment was one of the
documents the disgruntled nurse had destroyed. Petitioner’s staff was unable to find a
consent form and, therefore, immediately completed another consent form which was
signed by the resident’s son on October 10, 2006. P. Prehearing Br. at 3; CMS Ex. 19, at
53.
9

CMS argues that even if the restraint assessment had in fact been stolen and destroyed,
Petitioner should have reassessed the resident’s use of the restraint prior to the October
2006 survey, either as part of the quarterly assessment after the resident tried to stand in
the chair while restrained, or after the resident fell while restrained in the Broda chair.
CMS Br. at 27. Surveyor Melinda Lewis, R.N. testified that Petitioner should have
discovered that the initial restraint assessment was missing because staff should have
reviewed the previous assessment when reassessing the use of Resident 20’s restraint. Tr.
181; CMS Ex. 19, at 19. CMS asserts that toward the end of June 2006, Resident 20 was
in the thigh belt each time he was placed in the Broda chair, and at times also during the
middle of the night. Jd. at 62-71. Thus, Petitioner should have had some documentary
evidence supporting the assessment and use of the thigh belt for Resident 20.

The Revised Long-Term Care Facility Resident Assessment Instrument User's Manual
provides that subsequent reassessments “should focus on recorded information from
earlier MDS assessments and Quarterly assessments, written information from the
previous three-month period, and notes made during the prior 30-day period.” See Revised
Long-Term Care Facility Resident Assessment Instrument Users Manual, CMS RAI
Version 2.0 Manual, at 1-20. Even if the initial assessment was stolen from Petitioner’s
facility prior to the survey, I agree with CMS’s argument that the initial assessment should
have been reviewed during the quarterly MDS assessment. That review would have led to
the discovery that the initial assessment was missing and it would have prompted a
subsequent assessment to justify Resident 20’s restraint.

b. Petitioner argues that I should consider a Functional
Assessment Reassessment Form (FARF) as meeting the
initial restraint assessment requirement.

Petitioner claims that staff did evaluate Resident 20 prior to employing the physical
restraint. As the initial assessment was not available, Petitioner argues that I consider a
Functional Assessment Reassessment Form (FARF) in lieu of the initial assessment.
Petitioner maintains that the FARF was part of the data gathered on June 9, 2006 to
complete the admission MDS for Resident 20. Petitioner further asserts that the FARF
aided staff in determining the types of assistive devices or restraints that would be
appropriate for Resident 20. P. Br. 1-2; CMS Ex. 19, at 4, 8.

A review of the FARF indicates that the assessment was initially completed on June 9,
with updates on June 12, September 6, and September 27, 2006. CMS Ex. 19, at 4. The
FARF which Petitioner claims to be an assessment for Resident 20, recommends a Broda
chair and padded thigh belt intervention for a resident who is considered high risk for
falls. To be considered a high risk for falls, a resident must score at least 16 points or
higher on the assessment. Resident 20 scored 6 points during the June 9 assessment
which, based on the assessment risk legend, made him a mild risk for falls. According to
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the FARF, a lap buddy and sit-in-place interventions are recommended at this level of
risk. Jd. at 4. During the June 12 reassessment, Resident 20 scored 10 points, classifying
him as a moderate risk for falls. Jd. At a moderate risk the FARF recommends a self-
release seat belt, a lap buddy, sit-in-place, safety alarm(s), an optic sensor, and a low bed
and mat. Jd. On September 6, staff reassessed Resident 20 and at that time he scored 11
points which classified him within the moderate risk category. On September 27,
Resident 20 was again reassessed and scored 12 points which was also within the
moderate risk category. The record is clear that the highest score Resident 20 was
assigned during all of the FARF assessments was 12 points, which placed him in the mid-
range for the moderate risk category (score range 9-15). Jd. Thus, Petitioner’s reliance on
the FARF as an assessment that justifies its use of the thigh belt is not supported by the
record or the facts.

c. Petitioner argues that the resident’s record provides a
medical reason for implementation of the thigh belt
restraint.

Petitioner contends that Resident 20’s record clearly establishes a medical reason for the
thigh belt restraint as well as the alternative to restraints considered or tried. P. Br. at 5.
Petitioner cites to the social service assessment, initially completed on June 9 and updated
on June 20. Although the assessment provides information as to the resident’s support
network, it does not address any medical symptom warranting the use of the thigh belt
restraint, or the alternatives to restraints tried by staff, nor does that record reveal the
reason why less restrictive alternatives were not successful. CMS Ex. 19, at 8. Thus,
Petitioner’s argument on this point is not persuasive and is without support in the
resident’s medical record.

d. Petitioner asserts that the RAP Trigger Worksheet
meets the initial restraint assessment requirement.

On June 22, 2006, staff completed a Resident Assessment Protocol (RAP) Worksheet for
Physical Restraints as part of Resident 20’s MDS assessment. CMS Ex. 19, at 49-50.
Petitioner’s reliance on the June 22, 2006 RAP Worksheet to substantiate its
implementation of a physical restraint with Resident 20 is misguided. Jd. at 45, 49-50.
The RAP Worksheet does not justify use of a thigh belt restraint for Resident 20. The
RAP Worksheet was completed 10 days after the thigh belt restraint was implemented
and, further, does not document that alternatives were tried. The document indicates that
the restraint was employed due to the resident’s fall risk, aggressive behaviors, or
wandering. Moreover, the worksheet indicates that the restraint is not needed. Jd. at 50.
The RAP Worksheet notes Resident 20 was not able to get up from the Broda chair with
the thigh belt in place. /d. The record also indicates that the resident was being restrained
to control behavioral symptoms and repetitive physical movements attributed to the
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resident’s cognitive loss/dementia, acute confusional state, impaired communication, sad
or anxious mood, and psycho tropic drug side effects. /d. at 49. It further notes that use
of the restraint was part of a behavioral management program, and attempts had not been
made to control Resident 20’s behavioral symptoms without the use of restraints. CMS
Ex. 19, at 49-50. Contrary to Petitioner assertion, the RAP Worksheet for Resident 20
does not justify the initial use of a restraint or the continued use of the restraint. Jd. at 50.

Lastly, Petitioner’s own witness, Nancy Anderson, who served as the activity director at
the facility, testified that the RAP Worksheet contained inaccurate information and she
would not consider the worksheet to be an assessment. Tr. 324.

2. Petitioner failed to review alternatives to physical restraint
prior to implementing the thigh belt restraint.

CMS asserts that Petitioner failed to document whether alternatives to restraints had been
tried before implementing use of a thigh belt. CMS Br. at 11.

Petitioner’s physical restraint policy requires that “[i]f alternative methods (lower beds,
padding on floor, increased activity programming, better seating arrangements, removal of
obstacles in immediate environment, closer staff observation with reminders and cueing,
[sic] etc.) have proven inadequate, the Interdisciplinary Team must document their
recommendation for the least restrictive restraint.” CMS Ex. 36, at 2.

Petitioner maintains that facility staff did evaluate less restrictive alternatives. Petitioner
claims that an alarm had already been placed on a recliner in the resident’s room, a low
bed and mat had been placed in his room, and a bed sensor had been added to his bed due
to his risk for falls. P. Br. at 2, 5; CMS Ex. 19, at 59. Petitioner claims that a recliner was
tried before use of the Broda chair, but it was not successful in preventing Resident 20
from rising. Tr. 133; CMS Ex. 19, at 60. At hearing, Ms. Anderson testified for Petitioner
that alternatives were reviewed by the interdisciplinary team. Tr. 163-66, 273- 77, 317-
18. Ms. Anderson also testified that after the June 10 fall, the interdisciplinary team
decided to try a Broda chair with a thigh belt as Resident 20’s “freedom of movement had
to be curtailed to keep him from attempting to constantly ambulate so that he would not
fall after becoming exhausted.” Tr. 273. Ms. Anderson also testified that the thigh belt
restraint was the facility’s “first step” in responding to Resident 20’s fall risk due to
wandering. Tr. 273. She further asserted that the facility had tried to get Resident 20
involved in activities prior to implementing the thigh belt. Tr. 317.

Petitioner has not provided any corroborating evidence to support Ms. Anderson’s

assertions that less restrictive alternatives and the resident’s involvement in activities were
attempted, nor do I find documentation in the resident’s record establishing which, if any,
alleged activities were attempted. Rather, the record supports CMS'’s claim that the lower
12

bed, padding on floor, low bed, and bed alarm implemented before or shortly after the use
of restraints were directed to address Resident 20’s risk of falls from bed, not his
wandering to the point of exhaustion.

3. Petitioner failed to assess Resident 20 after the implementation
of a thigh belt.

Petitioner’s physical restraint policy requires there be a medical reason for the use of a
physical restraint and that the interdisciplinary team assure that all possible alternative
methods are assessed for appropriateness. Furthermore, the policy requires that the
assessment must be documented in the resident’s medical record. P. Ex. 36, at 1-2.

On June 10, 2006, Resident 20 was involved in two falls, one from his bed at 4:15AM and
one in the hallway at 4:25 PM. CMS Ex. 19, at 3. The first incident occurred after the
resident bolted from his wheelchair and ran down the hall. /d. at 60. The resident’s record
notes the resident as being agitated, having hit a wall with his fists when staff attempted to
sit him ina recliner. Jd. at 59-60. A few days later, on June 12, 2006, staff reported
restraining Resident 20 in a Broda chair with a padded thigh belt. Jd. at 119; CMS Ex. 44,
at 1, 7-8. On June 12, 2006, a nurse noted that Resident 20 became very agitated when the
padded thigh belt restraint was applied to his Broda chair. CMS Ex. 19, at 62. On June
15, 2006, the resident is reported as yelling “mother” loudly, banging his chair into the
wall, and trying to tip it over. Jd. at 64. Although the resident had been placed in a
different chair, a heavier one, he was reported as nearly tipping the chair over. Jd. On
June 19, 2006, the resident is reported as trying to walk while the Broda chair was still
attached to him by way of the thigh belt restraint. /d. at 66. When staff attempted to talk
to him he tried to physically strike out at them. Jd. Two staff were required to sit him
back down in order for staff to unhook him from the chair. /d. at 21. On June 20, 2006,
staff developed a care plan for the padded thigh belt in the Broda chair. CMS Ex. 19, at
19. On June 22, 2006, staff completed the RAP Worksheet as part of Resident 20’s MDS
assessment. CMS Ex. 19, at 49-50. On June 23, 2006, Resident 20 is reported as being
agitated, yelling while in the Broda chair, and the following day he tore one side of his
Broda belt and removed the inner padding from it. CMS Ex. 19 at 68, 69. Use of the
thigh belt restraint in the Broda chair continued to be used in July, August, and September
2006. CMS Ex. 19, at 72-102. Resident 20’s clinical record reveals he was exhibiting
restless behavior, being aggressive with staff, racing up and down the hall in his Broda
chair at high rates of speed, and often entering other resident rooms. During this time he
is reported running over other residents’ feet or running into them at least eight times.

CMS Ex. 19, at 25, 27, 30, 32, 33, 78-84, 88-100. Additionally, he is reported as “unable
to comprehend [the] danger he is causing other residents.” CMS Ex. 19, at 92.
13

On September 25, 2006, the resident was placed in a stationary Broda rocker/glider. CMS
Ex. 19, at 17; CMS Ex. 13, at 11. However, the resident was noted as being agitated, and
rocking the chair back and forth swiftly nearly tipping it sideways. CMS Ex. 19, at 109.
Staff brought this to the safety risk manager’s attention who then spoke with the Director
of Nursing (DON) and, later that evening, a decision was made for the resident to be
placed in a stationary chair. Jd. A few hours later on September 26, 2006, while
restrained with the thigh belt in the Broda chair, Resident 20 attempted to stand and as the
CNA walked toward him, he tipped the chair forward and fell, causing the Broda chair to
fall on top of him. CMS Ex. 19, at 103. He sustained a 1 centimeter (cm) abrasion to the
right side of his forehead and a 2 c.m. abrasion to his right knee. Staff reported the
incident to the safety risk manager who instructed staff to update the care plan and to
initiate one-to-one while the resident is in the Broda chair; that the Broda rocker was to be
used if the resident was up; and the resident was to be on one-on-one care. The updated
care plan specifically provided for: “(1) one-on-one when up in the Broda chair; (2)
monitor every shift for injuries; and (3) redirect with a snack, walk, or back rubs. Jd.

The resident’s care plan for use of the thigh belt restraint directed that staff assess Resident
20 for reduction or possible removal of the restraint. CMS Ex. 19, at 19. However, after
the September 26 incident where Resident 20 tipped his Broda chair forward, Petitioner
did not assess the resident’s continued use of the thigh belt restraint in the rocking Broda
chair.

Resident 20 was placed in a stationary rocking on September 25 and he tipped it a few
hours later at 1:30 AM on September 26, hitting his head and knee during the fall. The
resident continued to exhibit reckless behavior while in the Broda chair with the thigh belt
restraint. Even after the resident’s fall on October 8, 2006 - when he leaned forward and
tipped the Broda chair over landing head first - staff continued to use the thigh belt
restraint.

From July 2006 through September 2006 staff routinely placed this resident in the Broda
chair contrary to physician orders. Even though during this time the resident continued to
exhibit restless behaviors while in his chair, no assessment was conducted to determine
the appropriateness of restraining the resident in the Broda chair with the thigh belt.
Additionally, Resident 20’s plan of care and the faculty’s own policy required staff to
assess Resident 20 for reduction or possible removal of the restraint. CMS Ex. 19, at 19;
CMS Ex. 36, at 2.

The evidence establishes that Petitioner failed to assess Resident 20 to evaluate the
continued effectiveness and need of the restraint after implementation of a thigh belt.
14

4. Petitioner did not obtain a consent form from a responsible
family member for the implementation of a restraint for Resident
20.

A facility must obtain the consent from a family member of a cognitively impaired
resident who is incapable of decision making. Milpitas Care Ctr. v. CMS, CR932 (2002),
aff'd, DAB No. 1864 (2004). CMS alleges that no consent was obtained from the
resident’s legal guardian for use of the restraint. CMS Br. at 11.

Petitioner claims the original consent form was stolen and facility staff had the resident’s
son sign another form on October 1, 2006. Petitioner asserts that entries in Resident 20’s
chart show that the resident’s son was at the facility the night his father bolted from the
chair and fell on June 10, and he was also present and notified on June 12 when the
physician ordered the use of the Broda chair. P. Br. at 5; CMS Ex. 19, at 60-62; Tr. 177-
78.

A review of the resident’s record shows that Resident 20’s son did spend the night at the
facility on June 10 and June 12, 2006. CMS Ex. 19, at 60, 62. The progress notes
indicate that he was made aware of Resident 20’s new physician orders. CMS Ex. 19, at
60, 62.

CMS argues that because Resident 20’s son was made aware of the orders does not
conclusively establish that the facility obtained informed consent from Resident 20’s
responsible family member for use of a restraint. CMS Reply at 7. CMS is correct,
consent requires more than “mere knowledge of the order.” /d. Consent requires that the
legal guardian be aware of the benefits and risks associated with the use of the restraint as
well as the alternative to restraint use. SOM § 221. Petitioner was required to inform the
family of the different options to address the resident’s behavior as well as the risks and
benefits of using the thigh belt restraint. Petitioner has failed to produce evidence that this
was done prior to implementing use of the thigh belt restraint.

5. Analysis

Prior to implementation of a restraint on a resident a facility must complete a restraint
assessment which clearly establishes that the restraint is medically warranted. There must
be a medical reason for the use of a restraint and assurance that the least restrictive device
is being employed. When employing the use of restraints a facility has an “obligation to
continue to assess the impact of the use of a restraint and to consult with the doctor if the
nursing facility finds that use of the restraint no longer meets the criteria of the
regulation.” Lakeridge Villas Health Care Ct. v. CMS, DAB No. 1988 (2005), affd,
Lakeridge Villa Health Care Ctr. v. Leavitt, 202 F. App’x 903 (6th Cir. 2006). The
15

continued use of the restraint must be reassessed and a resident must be supervised while
in the restraint.

In addition, reassessments should be completed in response to any incident or accident
involving the use of the restraint, and at least quarterly as a minium. Notations in a
resident’s record to continue use of the restraint do not qualify as a reassessment. Golden
Sate Manor Nursing & Rehab. Ctr. v. HCFA, CR412 (1996), aff'd, DAB No. 1597 (1996).

Petitioner was cited for failing to comply with this requirement because it failed to assess
Resident 20 for the use of a thigh belt restraint both prior to implementation of the
restraint and after Resident 20 exhibited dangerous behaviors while in the restraint. As
such, Petitioner failed to ensure that Resident 20 had the least restrictive restraint used to
treat his medical symptoms. The facility’s failure placed Resident 20 at risk for serious
injury and harm. Absent an assessment, Petitioner could not ensure that the restraint was
warranted by Resident 20’s medical symptoms, or that the least restrictive device was
being used to address the resident’s medical symptoms rather than for staff convenience.

Petitioner has been unable to submit evidence that it performed an assessment before
using the thigh belt restraint on Resident 20. In addition, Petitioner has been unable to
establish that it had: (1) medical symptoms warranting use of the restraint; (2) that
alternatives had been tried; and (3) sufficient documentation as to why alternatives were
not successful. See Golden State Manor Nursing & Rehab Ctr. DAB No. 1597. As such,
I determine that the pertinent documentation to show the restraint was necessary has not
been provided. See Wisteria Care Ctr. v. CMS, DAB No. 1892 (2003). Moreover, staff
failed to obtain a physician’s order for use of the thigh belt restraint in the Broda chair ona
routine basis instead of “as needed”, as originally ordered; and also failed to renew the
order at least every thirty days as required by Petitioner's own policy. CMS Ex. 36, at 2.

B. The evidence establishes that as of the October 17, 2006 survey
Petitioner was not in substantial compliance with the requirements of
42 C.F.R. § 483.13(c) - tag F224 - Staff Treatment of Residents.

The regulation requires that each facility develop and implement written policies and
procedures that prohibit mistreatment, neglect, and abuse of residents. 42 C.F.R.
§ 483.13(c).

Petitioner was found to be in violation of this regulation at a scope and severity level of
immediate jeopardy. CMS Ex. 1, at 30. The SOD alleges that Petitioner failed to prevent
Resident 6, who resided on a locked dementia unit, from verbally abusing and physically
threatening other residents who also resided on the unit. /d; CMS Br. at 33, 43-44.
16

At the time of the survey, Resident 6 was a 41-year-old male who had been admitted to
Petitioner’s facility on June 1, 2006, subsequent to a major auto accident in which he
sustained head trauma.* CMS Ex. 17, at 4, 60. Resident 6 was recommended by the
hospital discharge planner and approved by the State Medicaid agency for admission to
Petitioner’s SCU. The SCU is a locked unit where residents diagnosed with Alzheimers,
dementia, and other related conditions reside due to concerns about their own safety.
CMS Ex. 17, at 60, 61; CMS Ex. 40, at 5. Resident 6 was reported to be six-feet tall and
weighed 255 pounds. CMS Ex. 17, at 68. Resident 6’s physician’s report dated
September 28, 2005, notes diagnoses including partial paralysis of the right side, post
closed head trauma, depression, short-term memory problems, that he was oppositional
but not physical, and he had a developmental age of a 12 to13- year-old. CMS Ex. 17, at
4. An initial social service assessment completed on June 1, 2006 indicates that Resident
6 was placed at Petitioner’s facility due to “dementia/wandering”, and he reportedly felt
good about the placement. CMS Ex.17, at 5. Resident 6’s behavior plan dated June 29,
2006, indicates “Resident voices sexually explicit comments” and “Resident uses verbally
aggressive language.” CMS Ex. 17, at 7-8. Between October 4 through 11, 2006,
Resident 6’s care plan was updated to include a third behavior: “Resident becomes angry
and hits doors and wall with his fist.”. CMS Ex. 7, at 10.

CMS asserts that Petitioner failed to protect other residents on the Alzheimer’s unit from
Resident 6’s verbally abusive and physically threatening behavior. CMS Br. at 33.
Petitioner maintains that it appropriately care planned for Resident 6’s behaviors and
intervened to manage Resident 6’s behaviors. P. Br. at 9, 10; see also P. Prehearing Br. at
3-4.

A review of the resident’s clinical record reveals the following incidents and intervention
by facility staff:

1. June 28, 2006 - Resident 6 became upset at a female resident who bumped him
when she sat down beside him on the transport bus. This incident resulted in the
resident’s coffee spilling onto his lap at which he became upset, using verbally
aggressive language. CMS Ex. 17, at 34. Staff verbally directed Resident 6 to
calm down, this is reported as effective and Resident 6 then proceeded on to the
activity, sitting next to the same female resident. /d. In response to this incident,
facility staff developed a behavior care plan on June 29, 2006 addressing Resident
6’s behaviors to include verbally aggressive language. The behavior plan directed
staff to tell the resident to refrain from voicing sexually explicit or verbally
aggressive language; redirect him with an activity such as cards; engage him in

® Resident 6 also sustained head injuries resulting from auto accidents in 1980 and
again in 1998. CMS Ex. 12, at 8; CMS Ex. 13, at 6.
17

appropriate conversation; to discuss his behaviors with him in private after the
incident; to also strongly reinforce compliance with the rules; and lastly, to
encourage him to vent to staff. Jd. at 7.

2. June 30, 2006 - Resident 6 became upset and used profanity at a female resident
who took his coffee off the table while he was playing cards with other residents.
CMS Ex. 17, at 33. Facility staff responded by moving Resident 6 to Yoder Hall, a
higher functioning unit in the facility. Resident 6 was placed in a room next to
Resident 20, a 74- year-old, 136 pound man who suffered from dementia. CMS
Ex. 17, at 58. Petitioner then developed a second care plan, dated July 3, 2006,
which addressed a concern of emotional outburst secondary to his head injury.
CMS Ex. 17, at 19. The care plan directed staff to: observe the resident for mood
changes; observe his body language; allow him his personal space; redirect him
with an activity; and, that staff were to know that he loves to play cards. Jd.
Residents in Yoder Hall were at that time higher functioning residents who were
more likely to invade Resident 6’s personal space. Tr. 108.

3. July 28, 2006 - Resident 6 became agitated at another resident who was calling
out “help me, ma’am.” CMS Ex. 17, at 37. Resident 6 proceeded to place his fist
close to the resident’s face stating: “What the F- do you want?” Jd. Staff are
reported to have intervened and redirected Resident 6 to his room to calm down
and listen to music which was reported as effective. Jd. All staff were then in-
serviced on the resident’s behavior plans and directed to notify nursing and social
services of further occurrences of agitation by Resident 6 towards other residents.
Id.

4. August 13, 2006 - a CNA observed Resident 6 with his fist drawn back while
he was physically on top of Resident 20 as Resident 20 sat in his Broda chair.
Resident 6 was heard cursing Resident 20. CMS Ex. 17, at 24. The CNA told
Resident 6 to refrain from cursing whereupon he went to his room. The CNA
reports that on his way to his room he continued to curse. Jd. No new
interventions were added to Resident 6’s behavior plan to address his physically
threatening behavior.

5. September 4, 2006 - Resident 6 became upset with Resident 20 because
Resident 20 was sitting in a Broda chair outside Resident 6’s room. Resident 6 is
reported to have punched his fist in the air towards the other resident. CMS Ex. 17,
at 24. Staff redirected Resident 20 down the hall and Resident 6 went into his
room. Id. at 42-43.
18

6. September 17, 2006 - Resident 6 was overheard by staff yelling out obscenities,
punching his fist, and cursing at Resident 20, stating: “I am going to kill you.”
CMS Ex. 17, at 27; CMS Ex. 19, at 98. Within a half hour later when Resident 20
came by Resident 6’s room, staff noted that Resident 6 began cussing at Resident
20 and pounding his fist. CMS Ex. 17, at 44. Staff redirected Resident 6 into his
room. /d. No new interventions were added to Resident 6’s behavior plan after
these incidents.

7. September 18, 2006 - while sitting at a table in the dining room, a female
resident became agitated about a window being open. Resident 6 stood up and
slammed his chair against the table and then cursed at the female resident. CMS
Ex. 17, at 45. Staff removed the female resident from the table while a nurse
explained to Resident 6 that his language was inappropriate. Resident 6 responded
to the staff stating: “What are you going to do, wash my mouth out with soap, don’t
give adamn.” Jd. The resident then walked back to his room. Jd. Following this
incident Resident 6’s behavior plan was updated with the only one new intervention
of instructing staff to have Resident 6’s mother speak to him. Jd. at 7, 45.

Resident 6’s mother was informed by staff that if the resident’s behavior continued,
other arrangements would have to be made for Resident 6 for the safety of other
resident safety. Jd. at 45. Later that evening, social services was notified that
Resident 6 continued to cuss and show anger toward the female resident. Jd. at 46.
The resident was placed on one-on-one supervision, and staff were instructed not to
let him near the female resident. Jd.

8. September 19, 2006 - upon being asked a question by a female resident while in
the dining room, Resident 6 yelled “I don’t know” and gave the female resident a
dirty look. CMS Ex. 17, at 45. Staff redirected the resident to his room. Jd. The
resident stated “I don’t care” and is reported to have mumbled words while he
walked to his room. The resident was reported as calm and cooperative for the
remainder of the evening. Id.

9. September 21, 2006 - Resident 6 was reported to have come up behind Resident
20 and physically threaten him by making a punching motion. CMS Ex. 17, at 27.
Staff told the resident that his behavior was inappropriate. He then went to his
room and when a staff member followed him it is reported that the resident shared
his frustration by stating: “these old folks.” Jd.

10. September 27, 2006 - when a female resident attempted to grab jelly off of
Resident 6’s tray, he became angry and started cursing at her. CMS Ex. 17, at 28.
Later that day, while finishing his lunch in the dining room, the table was pushed
by another resident when moving a chair which in turn resulted in Resident 6
cursing at the resident. Jd. When a female resident at the same table told the
19

resident to “shut the hell up” and not to use that kind of language at the table in a
room full of women, the resident is reported as having stood up fast, causing the
table and surrounding chairs to move across the dinning room, resulting in the
resident’s pants getting wet. Jd. When staff redirected the resident back to the
room to change his pants he cursed at them stating: “F---- you I don’t care if my
pants are wet or not.” /d. Again, no new interventions were added to Resident 6’s
care plan to address his physically and verbally threatening behavior.

11. September 28, 2006 - while in the hallway with another resident, Resident 6
was given a cup of coffee by the CNA. He then is reported to have turned around
and started growling as he walked down the hallway because another resident was
trying to speak with him. CMS Ex. 17, at 29, 48. Later the same day, another
resident was in the restroom acting agitated and behaving loudly when a CNA
walked by Resident 6 to help the resident in the bathroom. Resident 6 is reported
to have stated loudly that someone ought to hit the other resident hard enough to
shut him up. Jd. at 29, 48. In response to this comment, staff contacted Resident
6’s physician noting “Res is becoming increasingly aggressive ... may we have an
order for Res to see Dr. Forester? . .. We are concerned because of res behavior we
are worried he is going to hurt someone [and] this will be state reportable. . . .
Please advise...” Id. at 54. Resident 6 was evaluated that same day by a mental
health professional for a psychological evaluation. It was recommended that the
resident be started on Depokate 500 mg. Jd. at 55-57. The psychological
evaluation indicated that Resident 6 had long standing mood, behavior, and reality
contact problems. Jd. at 56.

12. October 4, 2006 - Resident 6 is reported to have become agitated when another
resident was in the hall bathroom, resulting in his punching the door. That same
day staff updated the resident’s care plan for his behaviors of voicing sexually
explicit comments, using verbally aggressive language, and hitting doors and walls
with his fists. CMS Ex. 17, at 10. To assist Resident 6 in addressing these
behaviors, staff were directed to request him to refrain from using either sexually
explicit comments; to re-direct him with an activity, specifically “cards”; engage
him in appropriate conversation; if angry approach him one staff member at a time
and in a quiet area allow the resident to vent his feelings; offer the resident a snack
or drink, speaking to him in a calm, non-threatening tone; and lastly, staff were to
call the resident’s mother for intervention. Jd.

On October 5, 2006, Surveyor Marla Potts, R.N., interviewed Dr. Forester, the mental
health professional who assessed Resident 6 on September 28, 2006. Surveyor Potts
testified that she was advised that Resident 6 was described as brain impaired, that he did
not have dementia, and that his behaviors were “highly unpredictable.” Tr. 52-53; see also
CMS Ex. 12, at 8. According to Surveyor Potts, she was told by Dr. Forester that when

20

Resident 6 was doing well, he was not a threat, but when he was doing bad, the resident
made him very nervous. Tr. 53; CMS Ex. 12, at 8. On October 5, 2006, following
Surveyor Pott’s interview with Dr. Forester, immediate jeopardy was called by the survey
team. That afternoon the resident was transferred from Petitioner's facility to a local
hospital due to physical and verbal aggression. CMS Ex. 17, at 62. The discharge
document prepared by Petitioner states the reason for the transfer is that Resident 6 was
placed on the dementia unit with no diagnosis of dementia or Alzheimers and that he had
exhibited verbal aggression to dementia residents. CMS Ex. 17, at 64.

Petitioner argues that Surveyor Melinda Lewis’ testimony is flawed in that during the
hearing, according to Petitioner, Surveyor Lewis testified that residents in the SCU had
behaviors that annoyed Resident 6; that she did not ask any resident in the SCU if they
were scared of Resident 6; and none of the residents on SCU had told her they were scared
of Resident 6. P. Br. at 11, citing Tr. 73-74. Other than attacking the surveyor for what
she did not do, Petitioner provided no testimony or evidence to contradict Dr. Forester’s
statement to Surveyor Potts that Resident 6 posed a threat to residents on the unit.

CMS is not required to show that abuse has occurred in order to establish that a facility
failed to protect and promote a resident’s right to be free from abuse. Western Care
Management Corp. v. CMS, DAB No. 1921 (2004). A facility’s duty to protect residents
from abuse includes abuse from other residents. Jd. Here, CMS contends that Petitioner
failed to protect the other residents on the SCU from Resident 6’s verbally abusive and
physically threatening behavior. CMS further claims that Petitioner should have
reevaluated Resident 6’s care plan when his behaviors were noted to be more physically
threatening in order to determine alternative interventions. It was not until Resident 6
slammed his chair against a table and cursed a female resident that Resident 6’s care plan
was updated on September 18, 2006. This change was implemented after Resident 6 had
already exhibited physically threatening behavior in July, August and September of 2006.
The resident’s abusive behavior increased in frequency in September 2006 (i.e. yelling,
punching his fist, pounding his fist and threatening to kill Resident 20, and slamming his
chair against the table and cursing at a female resident, physically threatening Resident
20.) See CMS Ex. 17, at 20, 27, 42, 44. CMS maintains that the resident’s abusive
behavior placed Petitioner on notice that the interventions it had tried were not effective
and that Petitioner owed other residents a duty to take additional and necessary measures
to protect them, including discharging the abusive resident.

CMS argues that Petitioner should have developed a proactive intervention to try to
address Resident 6’s abusive behavior before it occurred by identifying potential triggers
for Resident 6’s outburst. Surveyor Lewis testified that her review of Resident 6’s medical
record indicated that Resident 6’s behavior appeared to be triggered by other residents
entering Resident 6’s personal space, making noise or engaging in other behavior which
annoyed Resident 6. CMS Reply at 15, citing to Tr. 51, 74. However, there is no
21

assessment in the clinical record which indicates that Petitioner assessed or identified
potential triggers for the abusive behavior by Resident 6.

Moreover, CMS states that Petitioner did not remove Resident 6 from the SCU until
October 5 when Petitioner was notified that the resident’s presence on the unit placed
other residents in immediate jeopardy. Petitioner's SCU policy lists as criteria for
discharge: “[a] behavioral problem that cannot be managed to provide a safe environment
for all individuals on unit as evidenced by violent, aggressive, threatening behavior
placing other residents at harm.” CMS Ex. 40, at 6. Petitioner's policy on resident abuse
defines verbal abuse as “the use of oral, written or gestured language that willfully
includes disparaging or derogatory terms to a resident or their families, or within the
resident’s hearing distance, regardless of their age, ability to comprehend, or disability.”
CMS Ex. 38, at 1. The policy further provides that “[r]esidents accused of abuse
allegations will be removed from the facility if at all possible, and placed in an appropriate
environment. If removal from the facility is not possible, the offending resident will be
removed from the source of abuse and monitored at all times until appropriate placement
can occur.” CMS Ex. 38, at 4. CMS states that contrary to its own policy, Petitioner kept
Resident 6 on the SCU in spite of his verbal abuse and threatening behavior to other
residents.

Petitioner maintains that its staff had identified Resident 6’s demeanor towards other
residents prior to the survey, recognizing that it had the potential to make other residents
feel threatened. Staff had developed a care plan with interventions to prevent encounters
by Resident 6 with other residents to avoid the resident becoming abusive, and staff were
closely monitoring Resident 6’s behaviors and had reassessed and revised the
interventions regularly. Petitioner argues that most, if not all, of the outbursts cited by
CMS were not the product of a change in Resident 6’s mood, but were caused other
residents. As examples, Petitioner cites that on one occasion Resident 6 did not become
upset until hot coffee was poured on this lap. In another instance, it was not until another
resident took his coffee while he was playing cards. P. Br. at 9

In response to CMS’s allegation that Petitioner failed to add new interventions to Resident
6’s care plan to address threatening behavior, Petitioner maintains that the interventions it
had in place were effective in curtailing abusive language and threatening behavior prior
to the threatening behavior by Resident 6 on July 28 and August 13 when Resident 6
displayed his fist to Resident 20 while agitated. CMS. Br. at 34. Petitioner further argues
that CMS ignores the fact that after the July 28 incident Petitioner’s staff intervened and
redirected Resident 6 to his room to listen to music which calmed him down. Petitioner
maintains that all staff was immediately in-serviced on Resident 6’s behavior plan and
instructed to notify nursing administration, and social services of further occurrences.
22

Based on my review of the evidence in this case I find that Petitioner was not in
compliance with tag F224. Surveyor Lewis testified that the standard of practice for
addressing a resident’s verbal or physically threatening behavior is to first separate the
abuser from other residents, then assess the abuser by looking at the resident’s
environment to determine what triggered the abusive behavior. Once potential triggers for
the behavior are identified, the facility can develop a plan of care to try to prevent the
behaviors from occurring. Tr. 49,73. Petitioner does not dispute that the standard
annunciated by Surveyor Lewis was the correct standard, nor does Petitioner argue that it
complied with that standard.

Petitioner’s SCU policy provides that “[r]esidents accused of abuse allegations will be
removed from the facility if at all possible, and placed in an appropriate environment. If
removal from the facility is not possible, the offending resident will be removed from the
source of abuse and monitored at all times until appropriate placement can occur.” CMS
Ex. 38, at 4. In the case before me Petitioner moved Resident 6 from one section of the
SCU to a higher functioning wing on the SCU after Resident 6 twice used profanity when
upset with a special care resident. P. Br. at 10. Petitioner moved Resident 6 into a room
next to Resident 20, a 74-year-old man with severe dementia. Thereafter, Resident 6
began to exhibit physically threatening behavior as well as verbal abuse.

While Petitioner moved the resident to a higher functioning unit of the SCU and had a
care plan and interventions to address Resident 6’s behavior, the record is clear that the
care plan and interventions did not prevent Resident 6’s abusive behavior from continuing
and from escalating into physically threatening behavior. As CMS aptly states, simply
redirecting Resident 6 after his abusive or physically threatening behavior occurs is not an
adequate or effective response. Furthermore, as CMS points out, both the nursing
standard of practice and the regulations required that Petitioner identify possible triggers
for Resident 6’s verbally abusive and physically threatening behavior, and implement
interventions to try to prevent the behavior from occurring. Here, there is no record that
Petitioner conducted any assessment to determine the potential triggers for Resident 6’s
behaviors. The clinical records in this case support the testimony of Surveyor Lewis that
Resident 6’s behavior appears to have been triggered by the other residents on the unit
when entering Resident 6’s personal space, by exhibiting behaviors or simply making
noise which annoyed Resident 6. This triggered his abusive behavior. Petitioner’s
transfer of Resident 6 to a higher functioning wing only served to escalate Resident 6’s
behavior from verbal abuse to physically threatening behavior because the resident in the
higher functioning wing were, as Surveyor Lewis testified, were active and more likely to
invade Resident 6’s space. Petitioner did not assess the apparent triggers to Resident 6’s
abusive and physically threatening behavior as required by nursing standards and the
regulations nor did it care plan or develop intervention to address the triggers for Resident
6’s behaviors. Thus, based on my review of all of the evidence relative to this tag, I find
23

that Petitioner was not in substantial compliance with the requirements of 42 C.F.R.
§ 483.13(c) - tag F224.

C. The evidence establishes that as of the October 17, 2006 survey
Petitioner was not in substantial compliance with the requirements of 42
C.F.R. § 483.25.(h)(2) - tag F324 - Accidents.

The regulation at 42 C.F.R. § 483.25(h)(2) requires that each resident be provided with
adequate supervision and assistance devices in order to prevent accidents. In interpreting
and applying this regulation, the Board has been consistent in the opinion that providers are
not strictly liable as insurers or unconditional guarantors of good outcomes in the delivery
of services to facility residents. Rather, the quality of care provisions of section 483.25
impose an affirmative duty upon providers to deliver services designed to achieve the best
possible outcomes to the highest practicable degree. Woodstock Care Center, DAB No.
1726, at 25 (2000), aff'd, Woodstock Care Center v. Thompson, 363 F.3d 583 (6th Cir.
2003). This interpretation is based upon the legislative history of the Act and regulations
which reflect that Congress and the Secretary chose to focus upon the desired ends or
results of care, thus allowing facilities to meet the requirements for individual care in a
variety of ways. See Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203
(Dec. 22, 1987); 54 Fed. Reg. 5316 (Feb. 2, 1989).

The specific manner by which facilities are to deliver care and services is not prescribed by
42 C.F.R. § 483.25(h)(2). A facility is permitted to determine the means to achieve the
regulatory end which is the prevention of accidental injury of facility residents. Therefore,
in order to evaluate Petitioner’s compliance with section 483.25(h)(2), it is necessary to
examine whether the facility provided adequate supervision designed to meet the residents’
assessed needs and to mitigate foreseeable risks of harm to them. Northeastern Ohio
Alzheimer’s Research Center, DAB No. 1935 (2004); Tri-County Extended Care Center,
DAB No. 1936 (2004).

The level and kind of supervision provided to the residents is reviewed in order to
determine whether it was sufficient to prevent any untoward events. The regulation at 42
C.F.R. § 483.25(h)(2) requires that a facility provide both “assistance devices” and
“adequate supervision” to prevent accidents. Whether the supervision or assistance devices
are adequate depends on what kind of measures would be determined to prevent potential
accidents from occurring given the known or reasonably foreseeable risks. For instance, in
Woodstock, the Board considered whether the facility had notice of, or should reasonably
have anticipated, the risk of the types of events that occurred and whether any reasonable
means were available to prevent them without violating the residents’ rights. Woodstock,
DAB No. 1726, at 26-27. In the case before me, the question has to be answered as to
whether the facility did “everything in its power to prevent accidents.” Odd Fellow and
Rebekah Health Care Facility, DAB No. 1839, at 6-7 (2002), quoting Asbury Center at
24

Johnson City, DAB No. 1815, at 12 (2002) and Koester Pavilion, DAB No. 1750, at 25-26
(2000).

Based on the regulation and the cases addressing this provision, CMS will meet its burden
in establishing a prima facie case if it: (1) presents evidence that an accident occurred
(with or without harm to a resident); or (2) shows that Petitioner failed to do what it could
to supervise residents or provide assistance devices to minimize risks that could lead to
accidents. If CMS makes a prima facie case, the burden shifts to Petitioner and the record
will then be considered in terms of where the preponderance of the evidence lay.

Petitioner was found to be in violation of this regulation at a scope and severity level of
immediate jeopardy. CMS Ex. 1, at 30. CMS alleges that Petitioner was found out of
compliance with tag F324 for two reasons: first for its failure to adequately supervise
Resident 20 while he was restrained in a Broda chair; and, second, for its failure to

adequately supervise Resident 6 to prevent him from verbally abusing and physically
threatening other residents in the unit. CMS Br. at 43-44. Both Resident 6 and Resident
20 were residents on the facility’s SCU.

Resident 20

On October 8, in the AM, Resident 20 was in the Broda chair with the thigh belt restraint in
place, the resident leaned forward and tipped the chair forward, landing on his head. CMS
Ex. 19, at 110. As a result of this fall, the resident sustained a 1 cm x 2 cm circular rug
burn on the left side of his forehead. CMS Ex. 19, at 110. CMS contends that Petitioner
failed to provide Resident 20 with adequate supervision to prevent him from tipping over
his Broda chair while restrained in the chair. CMS Br. at 38. CMS further alleges that
Petitioner was on notice as early as June 15, 2006, that the resident was at risk for tipping
his Broda chair.

CMS points to the testimony of Petitioner’s witness, Mandy Moore, CNA, to support its
contentions. Ms. Moore was on duty the morning of October 8 when the resident tipped
his Broda chair by leaning it forward. Tr. 262. Ms. Moore observed that the staff person
assigned to watch Resident 20 was about four steps ahead of him and her back was turned
momentarily as she was crossing the hall with a cup to fill at the sink in the dining room.
Tr. 263. Ms. Moore testified that the resident leaned forward tipping the chair in 2-3
seconds. Tr. 264. Ms. Moore pointed out that the Broda chair weighs about 40-50 pounds
and the resident weights 90-100 pounds. Tr. 264. Ms. Moore stated that she observed a
staff member approximately four steps ahead of the resident with their back to the resident
while walking to the sink in the dining room with a cup in their hand. Tr. 263. According
to Ms. Moore, given the size of the Broda chair, it would take a lot of force and time for a
resident to tip the chair over. Tr. 267-68.
25

Petitioner relies on the Board’s decision in Burton Health Care Center v. CMS, DAB 2051
(2006) where the Board agreed with the ALJ that adequate supervision had been provided
where an aide providing one-on-one supervision “momentarily” turned her back to get a
brief while a resident was sitting in his wheelchair next to the toilet. The resident
attempted to transfer himself to the toilet and fell, causing abrasion to his head and hip. Id.
at 12. The Board agreed with the ALJ that it was not foreseeable, given that the resident
was coherent and capable of following instructions, that during the short period that the
aide turned to retrieved a brief, the resident did not ask for assistance but rather attempted a
self-transfer. Jd. at 11-12. Petitioner here states that “it was not foreseeable Resident 20
could tip his stationary Broda chair by attempting to stand wearing the thigh belt until this
first occurred on September 26th.” P. Br. at 6. Petitioner claims that the first time
Resident 20 did this was September 26, and Petitioner assigned one-on-one staffing and
then eye contact supervision after the one-on-one was removed. Petitioner reports that on
October 6, the resident is noted as almost tipping the Broda chair forward by reaching out
at a passerby but the aide on the unit was able to stop him, and one-on-one was
immediately reinstated. P. Br. at 7. Petitioner argues that because eye contact supervision
had been sufficient to stop a near-tipping episode on October 6, it was not foreseeable that
Resident 20 would be able to tip his chair on October 8 by leaning forwarding during the
brief moment that an aide turned her back momentarily to get a cup of water for the
resident. Petitioner further claims that even if it was foreseeable that Resident 20 would be
able to tip his chair by leaning forward, that the relevant inquiry is whether the supervision
provided was adequate under the circumstances. Id.

Petitioner's reliance on Burton to support its assertions is misplaced as the facts in the
matter before me differ from what the ALJ in Burton was presented with. Unlike in
Burton, the staff here did not remain in the same room as the resident and so the staff's
actions can not be described as turning away only “momentarily.” In Burton the resident
was not in motion, and not in his chair walking down the hallway as in this case. Petitioner
argues that there was only a “momentary lapse in visual supervision by an aide who was
within 4 steps of the resident.” P. Br. at 8. However, here, Resident 20 was left in an
alcove outside of the dining room while the staff person went into the dining room to fill a
cup of water, the staff person’s back was turned from the resident at the time even though
the staff was four steps away from Resident 20. Tr. 263, 266. While her back was turned,
Resident 20 succeeded in tipping his Broda chair over. Again, on September 26, the
resident had succeeded in tipping his Broda chair over (CMS Ex. 19, at 103), and the
record shows that the resident continuously exhibited this behavior. See CMS Ex. 19, at
21, 66, 68, 102. Resident 20’s clinical record notes that he suffers from severe dementia
and acute agitation and confusion. I find that it was foreseeable that he would try to tip his
Broda chair over again if left unattended.

26

Although Petitioner claims that one-on-one supervision was resumed on October 6, after
the resident nearly tipped his rocker forward while reaching out toward other residents (P.
Br. at 3), there is no record indicating that one-on-one supervision was implemented as a
permanent intervention following the incident. CMS Ex. 19, at 108. The DON, the Safety
Risk Manager, and the staff person assigned to the resident on October 8 told Surveyor
Lewis that Resident 20 was receiving only eye sight supervision on October 8, not one-on-
one. CMS Ex. 13, at 8; CMS Ex. 19, at 162, 162; Tr. 43-44. Petitioner’s own witness, Ms.
Moore, who had witnessed the fall on October 8, never testified that Resident 20 was
receiving one-on-one supervision at the time of the fall. Tr. 261-69. Rather, when Ms.
Moore first observed Resident 20, he was already on his feet with the chair coming
forward. Tr. 263.

There was consistency among the witnesses (Surveyors Lewis, Potts, and Crays; Ms.
Moore; and Ms. Anderson) that one-on-one supervision required that one staff member be
within arms reach of Resident 20 at all times, ready to assist with his needs. Tr. 43, 190,
193, 231, 243, 247-48, 262, 320. Thus, as the evidentiary and testimonial evidence
establishes, Resident 20 was not provided with one-on-one supervision as such that a staff
member was within arm’s reach of him at all times.

CMS has established that on October 8, 2006, Resident 20 tipped his Broda chair over
attempting to stand while restrained, that the resident sustained an injury, and that the
supervision being provided to the resident at the time did not meet the level required by the
resident’s care plan. Resident 20’s care plan, dated September 26, 2006, appropriately
called for one-on-one supervision while the resident was in the Broda chair with the goal of
no falls for 30 days. CMS Ex. 19, at 13. Petitioner has not provided justification for
Resident 20 to not be on one-on-one supervision subsequent to September 26, 2006.
Moreover, the resident record further notes that on October 8, 2006, apparently after
Resident 20 tipped the Broda chair over again, staff recorded as a problem “Res tipped
chair over causing injury to head” and an intervention, one-on-one supervision was again
listed. Jd. at 14.

Resident 6

As a matter of judicial economy I do not address CMS’s allegation of noncompliance
related to Resident 6 under tag F324 as I find the evidence as to Resident 20 as outlined
above, sufficient to sustain CMS’s determination of noncompliance at the immediate
jeopardy level under this citation.

Accordingly, I find that Petitioner has failed to provide evidence to successfully rebut that
as of the October 17, 2006 survey Petitioner did not comply substantially with the
requirements of 42 C.F.R. § 483.25.(h)(2).
27

D. CMS’s determination that Petitioner’s noncompliance at tags F221,
F224, and F324 constituted immediate jeopardy was not clearly
erroneous.

As previously noted, immediate jeopardy is defined as 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 a resident. 42 C.F.R. § 488.301
Further, 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.” Jd.

Petitioner challenges CMS’s determination that the alleged noncompliance for tags F221,
F224, and F324 constituted immediate jeopardy, stating that CMS’s determination is
clearly erroneous. I note that CMS stipulated that the examples not contested by Petitioner
are not part of the immediate jeopardy findings at tags F221 and F324. Tr. 2.

Petitioner's failure to assess Resident 20 for use of the thigh belt restraint both before
implementing use of the restraint and after the resident exhibited dangerous behavior while
retrained in the Broda chair placed the resident in immediate jeopardy. The resident’s
record is replete with documented incidents where the resident was agitated and
continuously attempted to move or tip the Broda chair over. The resident’s record shows
that he was successful in tipping his Broda chair over twice, both times hitting his head.
Therefore, I sustain CMS’s determination that Petitioner's noncompliance at tags F221 and
F324 did place Resident 20 in immediate jeopardy.

The clinical records relative to tag F224 establish that Resident 6 was verbally abusive and
physically threatening to other residents in the SCU. The medical records clearly indicate
that staff were concerned that Resident 6 posed a threat to other residents as demonstrated
by the entry which indicates: “Res is becoming increasingly aggressive . . . may we have
an order for Res to see Dr. Forester? . .. We are concerned because of res behavior we are
worried he is going to hurt someone [and] this will be state reportable. . . . Please advise . .
.”. CMS Ex. 17 at 54. During an interview with Surveyor Potts, Dr. Forester described
Resident 6’s behavior as “highly unpredictable.” Tr. 52-53; see also CMS Ex. 12, at 8.
According to Surveyor Potts, she was told by Dr. Forster that when Resident 6 was doing
well, he was not a threat, but when he was doing bad, the resident made him very nervous.
Tr. 53; CMS Ex. 12, at 8. Based on the evidence, I sustain CMS determination that
Petitioner's noncompliance with tag F224 placed the residents of the facility in immediate
jeopardy. I further find that Petitioner has not sustained its burden of proving that CMS’s
determination of immediate jeopardy relative to these tags was clearly erroneous.
28

E. The alleged violation of 42 C.F.R. § 483.25 (Tag F309).

Petitioner advised me at hearing that it does not dispute the violation of 42 C.F.R. § 483.25
(tag F309), nor does Petitioner challenge the imposition of a CMP of $50 per day for the
duration of that violation. Tr. 24-25.

As a threshold matter, my review is limited to those issues that Petitioner has appealed and
over which I have jurisdiction. Inasmuch as Petitioner did not challenge the quality of care
deficiency citation of 42 C.F.R. § 483.25 (tag F309), that finding remains uncontested. 42
C.F.R. § 498.20(b).

F. A CMP of $10,000 per day for one day beginning and ending October
17, 2006 is reasonable.

Petitioner has not contested the reasonableness of the $10,000 per day CMP imposed by
CMS for the three immediate jeopardy level deficiencies identified in the October 17, 2006
SOD. See Request for Hearing; Jt. Stip. However, even if Petitioner had challenged the
CMP, since I have affirmed CMS’s determination of immediate jeopardy for deficiency
tags F221 and F324 is not clearly erroneous, I must also affirm the CMP imposed against
Petitioner. In doing so, I take into consideration the factors specified in 42 C.F.R.

§ 488.438(f). Therefore, given the seriousness of the deficiencies cited, Petitioner’s
culpability, its history of noncompliance’, and the fact that Petitioner has not raised the
issue of its financial condition, I conclude that a $10,000 per day CMP imposed by CMS
was reasonable. | also note that according to CMS, the $10,000 per day CMP imposed on
October 17 was a result of both the three immediate jeopardy findings litigated and the nine
non-immediate jeopardy findings not appealed by Petitioner. CMS Br. at 44.

VI. Conclusion

Based on my review of all of the evidence and testimony presented in this case, I sustain
the determination of CMS to impose a CMP against Petitioner beginning and ending
October 17, 2006. I further find that the $10,000 CMP imposed in this case is reasonable.

/s/
Alfonso J. Montafio
Administrative Law Judge

° During a September 12, 2006 survey, as well as other surveys dating back to
2003, Petitioner was found out of substantial compliance with 12 federal participation
requirements which included the same tags cited in this case. CMS Br. at 45-46; CMS
Ex. 3, at 1.