Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Country Hills Health Care
(CCN: 55-5431),
Petitioner
Vv.
Centers for Medicare and Medicaid Services.
Docket No. C-09-749
Decision No. CR2291
Date: December 13, 2010
DECISION
Petitioner, Country Hills Health Care, challenges the determination of the Centers for
Medicare and Medicaid Services (CMS) that it was not in substantial compliance with
program participation requirements. Petitioner also challenges CMS’s imposition of a
$10,000 per instance civil money penalty (CMP).' For the reasons discussed below, I
find that the preponderance of the evidence establishes that Petitioner was in compliance
with Medicare participation requirements at the relevant time. Thus, CMS is not
authorized to impose remedies against Petitioner.
I. Background
Petitioner is a long-term care facility located in El Cajon, California, that participates in

the Medicare and Medicaid programs. The California Department of Public Health (state
agency) completed a complaint survey of Petitioner’s facility on July 9, 2009. CMS

' Petitioner apparently also lost its authority to conduct a nurse aide training and

competency evaluation program (NATCEP). CMS Pre-Hearing Brief (CMS PH Br.) at
3.
Exhibit (CMS Ex.) 1. The survey cited a deficiency under 42 C.F.R.
§ 483.25(h) (Tag F323, scope and severity level of J).” Id.

I conducted an in-person hearing in the case on July 12, 2010, in San Diego, California.
Testifying for CMS was state agency surveyor Galen Gattis (Surveyor Gattis). Testifying
for Petitioner were: Erin Chancler, Petitioner’s administrator at the relevant time
(Administrator Chancler); Carolyn Terry, a licensed vocational nurse for Petitioner (LVN
Terry); José Palado, a certified nurse assistant for Petitioner (CNA Palado); Orlando
Pérez, Petitioner’s assistant maintenance supervisor (Mr. Pérez); Johanne Morales,
Petitioner’s environmental engineering supervisor (Ms. Morales); Gladys Ramos, a
registered nurse for Petitioner (RN Ramos); and Jane Fontecha, a registered nurse and
Petitioner’s co-director of nurses (DON Fontecha).

I admitted CMS Exs. | through 12 and Petitioner’s Exhibits (P. Exs.) 1 through 26. I also
admit P. Ex. A. Each party submitted a post-hearing brief (CMS Br. and P. Br.,
respectively). A 233-page transcript (Tr.) of the hearing was prepared.

IL. Issues

The issues before me in this appeal are:

1. Whether Petitioner was in substantial compliance with participation
requirements in the Medicare and Medicaid programs; and

2. Whether the remedies imposed are reasonable.
III. Controlling Statutes and Regulations
Sections 1819 and 1919 of the Social Security Act (Act) and the regulations at 42 C.F.R.

Part 483 govern Petitioner’s participation in Medicare and Medicaid. Sections 1819 and
1919 of the Act provide the Secretary with authority to impose remedies, including

> A scope and severity level of J denotes an isolated deficiency that constitutes
immediate jeopardy to resident health and safety. State Operations Manual (SOM),
section 7400E; 42 C.F.R. §§ 488.301, 488.408.

> P. Ex. 1, entitled “Joint Stipulation of Undisputed Facts,” was admitted to the record
without the signature of CMS counsel. As an attachment to its post-hearing brief
(Exhibit A), Petitioner submitted a copy of the “Joint Stipulation of Undisputed Facts”
that CMS counsel signed. I am admitting Exhibit A to the record. Petitioner also
submitted as attachments to its post-hearing brief Exhibits B through H, which consist,
respectively, of abstracts of the testimony of: Administrator Chancler (Exhibit B): LVN
Terry (Exhibit C); CNA Palado (Exhibit D); Mr. Pérez (Exhibit E); Ms. Morales (Exhibit
F); RN Ramos (Exhibit G); and DON Fontecha (Exhibit H). They remain in the record
as attachments to Petitioner’s post-hearing brief, but I do not admit them into evidence.

CMPs, against long-term care facilities for failure to comply substantially with
participation requirements.

The regulations define the term “substantial compliance” to mean:

[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.

The Secretary has delegated to CMS and the states the authority to impose remedies
against long-term care facilities not complying substantially with federal participation
requirements. The applicable regulations at 42 C.F.R. Part 488 provide that state survey
agencies, on behalf of CMS, may survey facilities participating in Medicare and
Medicaid to ascertain whether the facilities are complying with participation
requirements. 42 C.F.R. § 488.10-.28. The regulations contain special survey conditions
for long-term care facilities. 42 C.F.R. § 488.300-.335. Under Part 488, a state or CMS
may impose a CMP against a long-term care facility, if a state survey agency ascertains
that the facility is not complying substantially with participation requirements. 42 C.F.R.
§§ 488.406, 488.408, and 488.430. The CMP may begin to accrue as early as the date
that the facility was first substantially out of compliance and may continue to accrue until
the date the facility achieves substantial compliance, or until CMS terminates the
facility’s provider agreement. 42 C.F.R. § 488.440.

The regulations specify that if a CMP is imposed against a facility based on an instance
of noncompliance, the penalty will be in the range of $1,000 to $10,000 per instance. 42
C.F.R. § 488.438(a)(2). When a CMP is imposed against a facility based on a

per-day basis, it must fall into one of two broad ranges of penalties. 42 C.F.R. § 488.408,
488.438. The upper range of CMP, from $3,050 per day to $10,000 per day, is reserved
or 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 $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). “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.
A facility may challenge the scope and severity that CMS cites only if a successful
challenge would affect the range of CMP amounts that CMS imposed or would affect the
facility’s NATCEP. 42 C.F.R. § 498.3(b)(14), (d)(10)(i). CMS’s determination as to the
scope and severity 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 (2000), aff'd, Woodstock Care Center v. U.S. Dept. of
Health and Human Servs., 363 F.3d 583 (6th Cir. 2003).

The Departmental Appeals Board (Board) has long held that the net effect of these
regulations is that a provider has no right to challenge the scope and severity 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).*

When a penalty is imposed and appealed, CMS has the burden of coming forward with
evidence related to disputed findings that is sufficient, together with undisputed findings
and relevant legal authority, to establish a prima facie case of noncompliance with a
regulatory requirement. If CMS makes this prima facie showing, a petitioner must then
carry its ultimate burden of persuasion by showing by a preponderance of the evidence on
the record as a whole that it was in substantial compliance during the relevant period.
CMS makes its prima facie showing if the evidence it relies on is sufficient to support a
decision in its favor absent an effective rebuttal. An effective rebuttal of CMS’s prima
facie case would mean that the petitioner had shown that a preponderance of the evidence
supported the facts on which it its case depended. Evergreene Nursing Care Center,
DAB No. 2069, at 7 (2007). For the reasons enumerated below, I conclude that CMS did
not make its prima facie showing here.

IV. Discussion
I make two numbered findings of fact and conclusions of law (Findings) to support my
decision. I set them forth below as separate headings in bold and italic type and discuss

each in detail.

1. Petitioner was in substantial compliance with the participation requirements
at 42 C.F.R. § 483.25(h) at the relevant time.

42 C.F.R. § 483.25 requires that:

+ Petitioner argues that CMS’s finding of immediate jeopardy was clearly erroneous.
Had I found Petitioner out of compliance with participation requirements, I would not
have had the authority to consider the scope and severity of the deficiency, as CMS
imposed only a per-instance CMP, and the range of CMP would not be affected.
Although a NATCEP was apparently imposed as well, the imposition of a NATCEP was
imposed based both on the imposition of the CMP, as well as CMS’s finding of
substandard quality of care. See CMS PH Br. at 2-4.
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

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

In the case of Meridian Nursing Center, DAB No. 2265 (2009), the Board stated,

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).

Meridian Nursing Center, DAB No. 2265, at 3.

* 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. As discussed below, the incident
involving Resident A falls within this definition of “accident.”
Following a complaint survey conducted on July 9, 2009, based on a June 30, 2009
incident at the facility, the state agency determined that Petitioner:

... did not provide a safe environment by failing to prevent 1 of 170 residents,
(Resident A), who resided on the second and third floors, from exiting through a
second floor window. Resident A fell approximately 15 feet and because of the
fall sustained multiple fractures (broken bones).

CMS Ex. 1, at 1. The parties submitted a stipulation of undisputed facts regarding this
incident, which I summarize here.

Petitioner is a 305-bed facility. Resident A was readmitted to the facility on June 6, 2009
with diagnoses of post left hip fracture, dementia, and Korsakoff’s psychosis.° Resident
A’s June 19, 2009 minimum data set (MDS) assessed Resident A as having severely
impaired cognitive skills and long- and short-term memory problems.

Resident A resided in Room 312. Room 312 has a north-facing floor-to-ceiling window
that measures 7°10” high by 4°10” wide. The window has two separate sliding sections
that slide from right to left. The bottom sliding section measures 2’5” high by 4’10”
wide. The top sliding section measures 5’5” high by 4’10” wide. The bottom and top
sliding sections are separated by a window frame. On the date of the incident, there were
previously installed horizontal wooden barrier barrister-railing bars across the windows at
1°4” and 3’2” high from the floor.’

On the morning of June 30, 2009, the charge nurse, RN Ramos,*® saw Resident A remove
his lap-tray and attempt to stand up from his geri-chair several times. To address the
resident’s fall risk as he attempted to stand on his own, Ramos immediately implemented
the use of a wheelchair with a backwards-facing seatbelt,’ between 10:30 and 11:00 a.m.
Very soon after her intervention, Ramos observed Resident A in the hallway at

° Surveyor Gattis testified that Korsakoff’s could be explained as Petitioner’s brain
“literally being pickled by excessive alcohol use. He’s delusional, hallucinations, has no
short or long-term memory ability.” Tr. at 24.

7 Since the upper and lower windows could slide open and shut overlapping side to side,
the width of the actual window opening would be effectively reduced to approximately
half its overall dimension. P. Br. at 5.

* The charge nurse was identified at hearing as RN Ramos. Tr. at 168; P. Ex. 15.
°’ Nurse’s notes reflect that Petitioner used the intervention of the wheelchair and back-

facing seatbelt until Resident A could be re-assessed by Petitioner’s rehabilitation
department. CMS Ex. 7, at 6; see Tr. at 170; CMS Ex. 6, at 1; P. Ex. 15.
approximately 11:10 a.m. At that time, Resident A was able to propel himself in the
hallway. Ramos noted that Resident A did not attempt to stand on his own and did not
appear restless or agitated.

At approximately 11:10 to 11:15 a.m., CNA Palado'® observed Resident A in his room,
seated in his wheelchair near the “A” bed, the bed closest to the doorway of his room.
Palado told Resident A that he was taking residents to the dining room for lunch and that
Resident A would be next.

Sometime between 11:20 and 11:30 a.m., CNA Palado returned to Resident A’s room to
take him to the dining room for lunch. At that time, Palado did not find Resident A in his
room.'! Palado and RN Ramos began a search for Resident A, checking the rooms and
restrooms near Room 312. During the search, Palado looked outside the window of
another room and saw Resident A lying on the ground one story below the window of his
room.

A “Code Green” was called at the facility, and a 911 call to emergency services was
placed. CNA Palado, accompanied by another CNA who spoke Spanish, spoke with
Resident A (whose primary language is Spanish but who speaks and understands English
(CMS Ex. 9, at 26; P. Ex. 2, at 42, 209, 240)) while waiting for paramedics to arrive.
When asked what happened, Resident A told the Spanish-speaking CNA that he was
looking out the window and fell.'?

At the time the incident was discovered, the bottom and top windows of Room 312 were
observed to be open. The screen for the bottom window was noted to be on the ground
with Resident A. The screen from the top window was torn from the window frame.

Somewhere between 11:40 and 11:50 a.m., Resident A was transferred to Sharp
Memorial Hospital for treatment. At approximately 12:30 p.m., the incident was reported
as an unusual occurrence to the state agency. At approximately 1:30 p.m., state agency
surveyors arrived at Petitioner’s facility. A situation of immediate jeopardy at the facility
was declared at 3:30 p.m. Petitioner immediately began implementing a plan of
correction.

° The CNA was identified at hearing as CNA Palado. Tr. at 121-22; P. Ex. 12.

'" Petitioner asserts, and CMS does not dispute, that the curtains in Resident A’s room
were drawn shut at the relevant time. CMS Ex. 6, at 1; P. Br. at 5.

© Surveyor Gattis’ surveyor notes worksheet reflects that upon interview Resident A did
not recall falling out a window. However, a Spanish translator who had been working
with Resident A since his hospital admission told Surveyor Gattis that Resident A told
her that he was “going to go outside to help the workmen.” CMS Ex. 9, at 26-27.
At approximately 6:30 p.m. on June 30, 2009, the state agency completed its inspection
and conducted an exit conference. The state agency advised Petitioner that the situation
of immediate jeopardy was considered abated; no life and safety code violations were
found; no deficiencies would be issued by life and safety; and a notice of intent would be
issued for the deficiency found at Tag F 323.

The July 9, 2009 survey followed, and by notice letter dated July 21, 2009, CMS
informed Petitioner that it had approved a finding of noncompliance based on the July 9,
2009 survey. CMS imposed a $10,000 per instance CMP. The sole regulatory violation
cited, based on the July 9, 2009 survey, is 42 C.F.R. § 483.25, at a scope and severity
level J.

Although the parties did not stipulate to this point, I find that there is no real dispute that
the Office of Statewide Health Planning and Development (OSHPD), the California state
agency that approves the design of skilled nursing facilities, had approved the building
and the window design. Tr. at 49-52. Nor is there any dispute that state agency surveys
of the facility, beginning in 1990, never previously cited Petitioner’s windows as an
identifiable hazard or as otherwise out of substantial compliance with participation
requirements. Tr. at 64. There is also no dispute Petitioner had a locked or secured unit
on its bottom floor for residents who pose an elopement risk or display wandering
behavior, behavior risks Resident A did not pose or display. Tr. at 59-61.

With regard to the windows themselves, CMS does not dispute that each window section
had a window latch that would be difficult for most residents to open. In addition, each
window had a heavy screen. The bottom section of the windows had a screw or bolt’?
that prevented the windows from opening. Tr. 135, 142. Petitioner had considered
putting screws or bolts at the top window; however, prior to the survey, an individual
from the state agency, Mr. Yalung, had informed Petitioner that doing so would violate
the life safety code. On August 3, 2009, Mr. Yalung changed his position and informed
Petitioner that it could bolt the windows, because the local fire department would approve
it. P. Ex. 26; Tr. at 142-46. The bolts or screws in the lower windows were put in before
the survey and did not completely stop the window from opening. After the survey, the
bottom window screws did not allow the window to open at all, and bolts or screws were
installed which limited the opening of the upper windows to about six inches. They were
screwed into the track itself. Tr. at 149-52. I do not consider any of these subsequent
actions that Petitioner took, as part of its plan of correction, as proof that Petitioner was
out of compliance with participation requirements at the time of the incident.

CMS notes that the Board has repeatedly held that “‘a facility must determine whether any
condition exists in the environment that could endanger a resident’s safety. If so, the
facility must remove the condition if possible, and, when not possible, it must take action

° The parties use the words “screw” or “bolt” interchangeably. It is irrelevant to my
decision whether a device placed in a window to prevent it from opening is termed a
“screw” or a “bolt.”
to protect residents from the danger posed by that condition.” Woodland Vill. Nursing
Center, DAB No. 2172, at 19 (2008) (citing Alden Town Manor Rehab. and HHC, DAB
No. 2054, at 7 (2006)). CMS argues that Petitioner should have assessed Resident A and
is environment to determine whether a potential hazard existed that could have
endangered his safety. In addition, CMS asserts that, upon this assessment, Petitioner
should then have taken action to remove the hazards, or implement interventions to
protect Resident A from the hazard. CMS argues that Petitioner failed to do so.'*

Specifically, CMS asserts that Petitioner knew that Resident A could not protect himself
from accident hazards in his environment, or from accident hazards of his own making,
prior to June 30, 2009. CMS argues that Petitioner had a duty to act on this knowledge
and design a care plan and a room environment that protected him from all safety

azards. CMS asserts that Petitioner had assessed Resident A’s cognitive status, physical
imitations, and safety judgment and knew Resident A suffered from dementia and
delirium and had such severe cognitive impairments that it was “highly unlikely” that he
would appreciate the danger inherent in an attempt to open a window. Further, CMS
asserts Petitioner knew that Resident A was a fall risk, that he required extensive assists
to transfer from his wheelchair; and that his attempts at standing or walking from his
wheelchair were dangerous. CMS notes that Resident A was able to take only about two
steps safely when he was using a forward wheel walker. CMS Br. at 2-3. In support,
CMS referred to the testimony of LVN Terry that Resident A had an altered mental status
and to RN Ramos’ testimony that Resident A had a history of failure to follow directions.
Tr. at 118; Tr. at 180-81. CMS referred also to the MDS found in Resident A’s clinical
record, noting his poor safety judgment and cognitive impairments. CMS Ex. 7, at 10.
CMS also referred to a resident assessment protocol (RAP) summary dated June 19,
2009, which noted that “all [of Resident A’s] needs must be anticipated.” CMS Ex. 7, at
12.

CMS points out that anticipating Resident A’s assessed needs was critical to protecting
him from hazards in his environment. Surveyor Gattis testified:

Id have to liken it to child-proofing your home. You look in the environment to
see what hazards are there, and what the potential is for the child to harm
themselves. In the case of the elderly, cognitively impaired resident, you would
look in the environment to observe areas in the facility that could pose a danger to
the resident.

Tr. at 26-27. Gattis also testified that he would expect a facility to determine a potential
accident hazard:

' CMS does not contend that the incident was a result of the physical failure of the
window.
10

[b]ased on the residents diagnoses, based on evaluation — assessments that have
been done by nursing, physical therapy, occupational therapy, based on facility’s
own observations of the resident’s behaviors. That would be all used in
developing an approach to how they would safely handle this resident... .

Tr. at 35-36.

CMS notes that Surveyor Gattis measured Resident A’s window on June 30, 2009. He
found a vertical space of approximately 13” between the bottom safety railing and the
window partition. CMS Ex. 8, at 4. The bottom window section had a sliding section of
2’5” high. CMS Ex. 1, at 3; CMS Br. at 8. The open space on the bottom of the window
was 13” high by 29” wide. The two safety rails were installed prior to when the current
assistant maintenance supervisor, Mr. Pérez, began working at the facility (approximately
14 years ago). Tr. at 134, 151.

CMS asserts that there was nothing blocking this “large” or “huge” 13” by 29” opening
on the bottom window, and there was nothing to prevent a resident from exiting through
the window. CMS Br. at 8, 12. According to CMS’s view of the evidence, the only thing
Petitioner had in place to stop resident access to the space was a “belief and hope” that it
was too difficult to fall through accidentally, or that no resident would intentionally crawl
over the horizontally-placed safety bar. CMS Br. at 12. CMS notes that DON Fontecha
and Ms. Morales testified that, in their opinions, someone would have to spend time on
the floor to use the window as an exit. Tr. at 160, 193-94. As Ms. Morales agreed during
cross-examination, there was nothing to prevent a resident from inserting himself or
erself between the safety railings and the window partition, which CMS asserts must
ave been the method that Resident A used. CMS Br. at 11; Tr. at 164. CMS thus
asserts that Petitioner’s method of ensuring that no resident went out a window was to
expect a “resident to see how much work it would take to get down on the floor so they
could climb over the bottom rail and decide against it.” CMS Br. at 10. CMS argues
that, given all that Petitioner knew about Resident A’s status, it is unclear why Petitioner
believed he would never spend time on the floor, crawl over a safety bar, or simply fall to
the floor and decide to go out a window.

Now, although CMS does not dispute that Petitioner had a locked or secure unit on the
first floor of its facility for residents with wandering behavior (see CMS Ex. 9, at 17),
CMS suggests that Petitioner was aware that residents with certain diagnoses might
attempt to use windows as a means of egress. It notes that skilled nursing facilities such
as Petitioner’s have used various methods to limit how far a window can open, including
mechanical means such as securing all resident room windows and windows in common
areas so that they can open no more than six to eight inches. CMS Br. at 6-7. CMS
argues that it was foreseeable that a fall, or attempted exit, from a window is an accident
hazard, if the windows are unobstructed and can open far enough to allow a resident to
climb out or fall out. CMS asserts that Petitioner was aware that the bottom section of
the sliding windows in its residents’ rooms was able to be opened “all the way.” CMS

11

Br. at 7. CMS refers to Ms. Morales’ testimony that Petitioner had placed screws in the
bottom sliding section to prevent the windows from opening but that family members
might take the screws out to abate smells in the room by enhancing ventilation. /d.; Tr. at
155. Surveyor Gattis testified he was never provided documentation that the screws were
being maintained, although he was told facility staff were going around quarterly looking
at the screws. Tr. at 30. Administrator Chancler was not aware of whether screw
placement was documented. Tr. at 109.

CMS asserts that Petitioner never considered other options for securing the windows,
such as a window alarm system. And, no evidence or testimony establishes that
Petitioner even considered whether lesser measures than complete window closure were
available to it under state fire codes. CMS argues that on June 30, 2009, Petitioner knew
nothing was blocking the bottom sliding section of the window from opening wide
enough for someone to slide through and knew residents could not be relied on to take
responsibility for their own safety and make safe, logical, and well-thought-out choices.
CMS argues that Petitioner did “nothing to effectively ameliorate the danger of those
bottom sliding window sections and left it up to Resident A to stop himself from exiting
through the window.” '*

CMS also asserts that Resident A was not adequately supervised, or provided assistance
devices, to address the open window space. Resident A was alone at the time of the
incident. CMS acknowledges that after being switched from a geri-chair to a wheelchair
it appeared Resident A had calmed down. However, no staff members were instructed to
watch him regularly or remain in close enough proximity to stabilize him if he attempted
to stand unassisted. CMS refers to the testimony of RN Ramos that “at first I asked the
CNA to keep an eye on him, how he would do with that — where we placed him on that
wheelchair with backwards seatbelt. But since he remained calm, and no further episodes

'S At hearing, Surveyor Gattis testified that he thought Resident A may have gone out the
upper window. Gattis testified specifically “. . . if you have one resident who can literally
pull himself up using - - and I believe this is how it happened, how he grabbed a hold of
that bar, and was able to somehow either go over the top of the bar or between the bars
and out the window... .” Tr. at 33; see Tr. at 47. Petitioner observes that if Resident A
had tried to exit through the upper window, he would have to unlatch it, open it, remove
the screen or make a hole large enough for a man to go through, and climb out of his
wheelchair. He would then have had no reason to knock the lower screen completely out.
Petitioner notes that the fact the lower screen was found on the ground next to Resident A
indicates he may have gone through the lower windows, because it was easier to exit that
way. In its post-hearing briefing, CMS appears to have abandoned the argument
espoused by Gattis that Resident A went out the upper window, although it left in an
argument raised in its pre-hearing brief that measures were not taken to address the
accident hazard created by a “4 feet 10 inch wide window that can open wide enough for
anyone, visitor, staff member or Resident to climb out of... .” CMS Br. at 12. Given
that the window opening was only half that width, I do not consider the actual window
opening to be 4710”.

12

of getting up, he’s just wheeling himself, so no further intervention or no further things
done as far as putting him on one-on-one supervision or so.” Tr. at 182. CMS notes that
when Resident A fell out the window he was not being observed.

CMS also asserts that missing from the facility’s assessment of Resident A’s new
behavior of trying to get up and ambulate from his geri-chair was any consideration of a
wheelchair alarm. CMS acknowledges that prior to June 30, 2009, Resident A had not
tried to get up unassisted or ambulate and admits that his most recent MDS, from June
19, 2009, assessed Resident A as not walking on the unit or in his room in the seven days
prior to the assessment. And, Resident A was assessed as totally dependent on staff for
movement between locations in his room and to different locations in the facility. CMS
Ex. 7, at 11, 12. However, given what it characterizes as the unexpected change in his
ambulation habits, CMS would expect documentation or testimony regarding
consideration of the pros and cons of other assistance devices, such as the use of an
alarm, which might have given Petitioner’s staff warning that the resident was attempting
to rise from the chair, especially given that the resident was a known fall risk. In CMS’s
view, this would have been particularly helpful, as only RN Ramos and CNA Palado
knew that morning that Resident A was attempting to rise unassisted and ambulate.'°

Petitioner argues that there was no reason to believe any resident on Resident A’s floor
might attempt to climb out a window that was latched, covered by a barrier bar, had a
heavy duty screen in place, and, in the case of the lower window, was bolted shut — in
essence, that Resident A’s accident was not reasonably foreseeable. Petitioner argues
that Resident A’s elopement out the window was totally unexpected and unforeseeable,
and that the need to intervene relating to Resident A’s attempt to get out of his geri-chair
is unrelated to his determining, and then attempting, to climb out a window. Petitioner
points out that Surveyor Gattis admitted that Resident A did not exhibit elopement-risk or
wandering behaviors. Tr. at 27. Petitioner insists that Resident A had no previous
history indicating that he might try to go out the window, and Petitioner’s staff never saw
Resident A trying to open the window in his bedroom. Petitioner notes that when
Resident A attempted to get out of his geri-chair without assistance, Petitioner’s staff

‘© A June 6, 2009 care plan for restraints indicated that Resident A was a high fall risk.
It suggested that: he could be up in a geri-chair for positioning; side rails should be up
when he was in bed for safety; and he should use a bed alarm to alert staff to give him
help when transferring. P. Ex. 2, at 197. A June 6, 2009 care plan for falls suggested:
Petitioner monitor Resident A’s environment for wet spots or items placed on the floor
below his field of vision; assure that lighting is adequate; monitor him for side effects of
medications that could contribute to a fall; place a call light within reach and respond
promptly; put up both full side rails while he is in bed for safety and mobility; maintain
his bed in the lowest position and lock it at all times; and place him up in a geri-chair for
positioning. P. Ex. 2, at 217. On June 16, 2009, Resident A was evaluated for the use of
physical restraints. Side rails were the only restraint recommended at the time, and a
geri-chair was indicated for positioning. P. Ex. 2, at 230.
13

immediately intervened by temporarily placing him in a wheelchair with a back-facing
seatbelt, which he could not easily release, pending a re-assessment. In addition,
Petitioner monitored Resident A by placing him in the line of vision of the nursing station
and having a CNA observe him until he was calm. Moreover, Petitioner notes that Gattis
did not opine that use of and reliance on the backward seatbelt restraint until Resident A
calmed down was unreasonable, improper, or an inappropriate use of restraints, although
he asserted Petitioner could have used a cross-strap vest to tie Resident A to his
wheelchair. Tr. at 31. Petitioner’s policy, however, is to place residents with elopement
tendencies in its secure unit, and not to restrain them, and then to monitor them for signs
of agitation. CMS Ex. 9, at 17.

Moreover, Petitioner brought the window design to the attention of state agency
personnel in 2007, when it wanted to bolt the windows for air conditioning purposes. At
that time, the state agency found no fault with the window design, although it did not
approve bolts for the upper windows. CMS Ex. 9, at 16; P. Ex. 26. Petitioner notes that
when Surveyor Gattis observed all of the lower windows on June 30, 2009, all of the
screw mechanisms or bolts in those lower windows were in place. Tr. at 30-31; 43-45;
CMS Ex. 9, at 11-14.'7 Petitioner argues further that the state agency’s life safety code
survey on June 30, 2009, found no violations of participation requirements. P. Ex. 8.
Petitioner argues also that the window was not wide enough for Resident A to “fall” or
“jump through” accidentally. It asserts that Resident A had to make an intentional effort
to open and climb through the window. P. Br. at 10.

The Board held in Josephine Sunset Home:

The regulation speaks in terms of ensuring that what is “practicable” and
“possible” to do is done. What is thus required of facilities is not prescience but
reason and professional judgment in assessing what can be done to make residents
(given their special needs) safe, through removing accident hazards, providing
appropriate devices, and ensuring adequate supervision.

Josephine Sunset Home, DAB No. 1908, at 14-15 (2004). The Board also held that the
“mere fact that an accident occurred does not, in itself, prove that the supervision or
devices provided must have been inadequate to prevent it.” Jd. at 13.

'’ Petitioner argues that, because the bolts were all in place for the lower windows, there
was no basis to declare immediate jeopardy for failure to bolt the upper windows. The
need to limit the opening of the upper window was not the basis of any immediate
jeopardy citation, as the state agency declared the immediate jeopardy was abated once
the lower windows were secured. No physical modification was made to abate anything
relative to the upper window on that date. As noted above, a finding of immediate
jeopardy is not relevant to my decision in this case.
14

In this case, it is undisputed that an accident occurred. The question is whether the
accident constituted noncompliance with both parts of the regulation at 42 C.F.R. §
483.25(h) — the part addressing potential accident hazards in Resident A’s environment
and the part addressing whether Petitioner’s supervision of Resident A was adequate. I
find that even though Resident A incurred an accidental injury, CMS has not shown that
Petitioner was noncompliant with participation requirements. This specific accident was
not foreseeable, and Petitioner took all reasonable steps to meet the assessed needs of this
Resident.

In Briarwood Nursing Center, DAB CR1551 (2007), aff'd, Briarwood Nursing Center,
DAB No. 2115 (2007), I heard a case in which it was suspected that a resident had eloped
through an unalarmed and unsecured window. In that case I noted:

It is puzzling that the Facility did not address an obvious escape route for a
resident with such a hazardous tendency. There are several ways that the Facility
could have implemented sufficient interventions to curb R1’s wandering and exit —
seeking behavior. Two courses of action that the Facility could have taken to
address the unalarmed and unsecured windows in R1’s bedroom are: 1) the
Facility could have installed windows that could not open more than eight inches;
or 2) the Facility could have installed alarms on their windows.

The Facility could have followed the example of other nursing homes and installed
windows in R1’s bedroom that open no more than six to eight inches, thus making
it more difficult for a resident to escape through a window. This could have easily
been accomplished by installing some type of device above the window to
effectively stop or limit the opening of the window. The use of mechanical means
to limit how far a window could open in a resident’s room is not a novel idea, as
exemplified by the extended discussions of such mechanisms in Sonogee
Rehabilitation and Living Center, DAB CR754 (2001); Estes Nursing Facility
Civic Center, DAB CR1240 (2004); Estes Nursing Facility Civic Center, DAB
No. 2000 (2005); and Estes Nursing Facility Civic Center, DAB CR1370 (2005).
Nor is the use of such devices unknown in the nursing home industry: one of the
ways that some nursing homes protect the safety of residents is to “secure all
windows in resident rooms and common areas so that they open no more than 6 to
8 inches from sill.” CMS Ex. 32. Any resident would have difficulty getting
through a window that could open only eight inches. For a wanderer, limiting the
means of escape is essential, and this option would have been both easy and quick
to implement.

Briarwood, DAB CR1551, at 5.
15

There are obvious differences between these two cases and between these two residents
that make my decision in Briarwood inapposite to my decision here. Those differences
are instructive, and they illuminate the important facts on which this decision turns. The
resident in Briarwood was a known elopement risk, and the facility failed to provide
adequate supervision to the resident, not even following its own policy to monitor the
resident every two hours. Here, Resident A was neither an assessed elopement risk nor
wanderer. In addition, Petitioner places its residents with the potential to elope or wander
in a separate and secured part of the building. Also, the type and structure of the window
was different in this matter.

It may not be possible to guard against all elopements from a window. I note Judge
Kessel’s discussion in Estes Nursing Facility Civic Center, DAB CR1370 (2004):

... [a]lthough I held that Petitioner undertook all reasonable steps to protect its
residents, I did not hold that the action Petitioner undertook made its windows
elopement-proof. I held there, and I reiterate, that such would have been
impossible to accomplish short of putting bars on the windows or putting residents
in windowless rooms. Windows are made from glass and glass easily can be
shattered. Any resident who is sufficiently determined to elope via a window,
including any of the windows of Petitioner’s facility, can easily do so simply by
breaking out the window’s glass. What Petitioner did fulfilled its obligation that
was reasonable to protect its residents given that no approach, short of barring or
bricking up the windows would have protected residents completely.

Estes Nursing, DAB CR1370, at 4.

I further note Surveyor Gattis’ testimony that a window that can be opened and climbed
through is not in and of itself an identifiable hazard. Gattis recognizes a standard of
reasonableness in testifying that a window five feet off the ground, not floor to ceiling,
would not necessarily be an identifiable hazard, even if there were a small chair and table
in the room, a resident with dementia were in the room, and that resident could climb up
to open the window. The resident would have to be observed doing those behaviors to
make it an identifiable hazard. Tr. at 61-63. Resident A was never observed trying to go
out the window, or even to trying to leave the facility or wander about in it. In addition,
no resident prior to Resident A had ever fallen through or jumped from a window at the
facility. Finally, no one surveying the facility had alerted the facility that its windows
were a potential hazard.

Although Resident A had cognitive deficits, he was not assessed as a wanderer or an
elopement risk, and he had not previously been shown to exhibit exit-seeking behavior.
He had never crawled on the floor. He was indisputably a fall risk, having fallen at the
facility, been hospitalized for a fractured femur, and then been readmitted to the facility.
P. Ex. 2, at 135, 239. But CMS has not shown that being a fall risk made him more likely
to elope the building through a window. In fact, given his fracture and his placement in a
16

wheelchair with a back-facing seatbelt, it was not foreseeable that, in the 10 or 15 minute
period between when CNA Palado saw him sitting calmly in his wheelchair in his room
and when he found him missing from his room, Resident A would be able to exit his
wheelchair, get to the window, push out a heavy screen, and go out the window.

Although CMS argues that Resident A’s supervision was inadequate, the entire episode,
from the first noting of Resident A’s agitation, to the instituting of the intervention based
on the wheelchair and the back-facing seatbelt, to the observation that Resident A had
calmed down, and finally to the discovery that Resident A had eloped through the
window, took place over a period of approximately one hour. RN Ramos had determined
to refer Resident A for re-assessment based on his attempting to rise from his geri-chair,
but, as a temporary safety measure, she had him placed in the wheelchair with the back-
facing seatbelt and had him monitored until he calmed down. Tr. at 170. Given the
situation and Resident A’s assessed condition, that intervention was adequate and
reasonable. There was no indication that he would intentionally exit the facility via a
window. Nor was it reasonably foreseeable that a window, such as the one in Resident
A’s room, with barrier bars, heavy screens, and an opening that I do not consider large or
huge, was a foreseeable means for Resident A to elope the facility.

2. As Petitioner was in substantial compliance with participation requirements,
CMS is not authorized to impose a remedy against Petitioner.

For the reasons set out in detail above, I find that the preponderance of the evidence
establishes that Petitioner was in compliance with Medicare participation requirements at
the relevant time. Because Petitioner was in compliance with those Medicare
participation requirements, CMS is not authorized to impose remedies against Petitioner.

V. Conclusion

Petitioner was in substantial compliance with participation requirements at the relevant
time, and CMS is not authorized to impose a remedy against Petitioner.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Woodland View Care and Rehabilitation
(CCN: 37-5364),
Petitioner
Vv.
Centers for Medicare and Medicaid Services.
Docket No. C-10-946
Decision No. CR2290
Date: December 8, 2010
DECISION GRANTING SUMMARY JUDGMENT
TO CENTERS FOR MEDICARE AND MEDICAID SERVICES
I grant the motion for summary judgment that the Centers for Medicare and Medicaid
Services (CMS) filed against Petitioner, Woodland View Care and Rehabilitation. I deny
Petitioner’s cross motion for summary judgment. I sustain the imposition of the
following remedies against Petitioner:

e Termination of Petitioner’s participation in Medicare effective August 24, 2010;

¢ Civil money penalties of $3,000 per day for each day of a period that began on
August 20, 2010 and that continued through August 24, 2010; and

e Denial of payment for new Medicare admissions for each day of a period that
began on August 20, 2010 and that continued through August 24, 2010.!

' CMS imposed additional remedies against Petitioner. These include: civil money

penalties of $10,000 per day for each day of a period that began on June 8, 2010 and that

continued through June 26, 2010; civil money penalties of $3,000 per day for each day of
Continued...
I. Background

Petitioner is a skilled nursing facility in Tulsa, Oklahoma. It has participated in the
Medicare program. Its participation in Medicare is governed by sections 1819 and 1866
of the Social Security Act (Act) and by implementing regulations at 42 C.F.R. Parts 483
and 488. Its hearing rights in this case are governed by regulations at 42 C.F.R. Part 498.
Petitioner was surveyed on several occasions in 2010 for compliance with Medicare
participation requirements. Surveys were completed on February 24, April 15, May 10,
May 22, June 8, June 22, June 25, July 6, and August 20, 2010. The survey findings
included findings that Petitioner failed to comply substantially with Medicare
participation requirements. Based on these survey findings, CMS determined to impose
the remedies that I describe in the opening paragraph of this decision, including
termination of Petitioner’s participation in Medicare effective August 24, 2010.

Petitioner requested a hearing, and the case was assigned to me for a hearing and a
decision. Petitioner moved that the hearing be expedited in view of CMS’s determination
to terminate Petitioner’s participation in Medicare, and I granted Petitioner’s motion.
Petitioner moved that I bifurcate the hearing of this case and that I hear and decide
initially only the issue of whether CMS had authority to terminate Petitioner’s
participation in Medicare as of August 24, 2010. I denied that motion. It moved
additionally that I issue subpoenas for certain records in the possession of the Oklahoma
State survey agency. I denied that motion as well.

CMS filed its pre-hearing exchange on October 14, 2010, and, on October 20, 2010, it
moved for summary judgment. CMS filed 13 proposed exhibits with its pre-hearing
exchange that it identified as CMS Ex. 1 - CMS Ex. 13. On October 14, 2010, Petitioner
filed its pre-hearing exchange, and, on November 3, 2010, it opposed CMS’s motion for
summary judgment and cross-moved for summary judgment (P. Opp. and Cross-Motion).
Petitioner filed 70 proposed exhibits with its pre-hearing exchange that it identified as P.
Ex. 1—P. Ex. 70. Subsequently, it filed three additional proposed exhibits that it

Continued...

' a period that began on June 27, 2010 and that continued through August 19, 2010; and
denial of payment for new Medicare admissions for each day of a period that began on
May 24, 2010 and that continued through August 19, 2010. These remedies are based on
noncompliance findings that were made at surveys that predated the survey that is at issue
in this case, a survey of Petitioner that occurred on August 20, 2010 (August 20 Survey).
Notice Letter, CMS to Petitioner, July 20, 2010. Petitioner did not offer evidence or
arguments in its pre-hearing exchange concerning the findings made at the previous
surveys or the remedies that CMS determined to impose based on these findings. See
Petitioner’s Pre-Hearing Brief n.1. Consequently, the findings of noncompliance that
were made at these surveys and CMS’s remedy determinations based on these surveys’
findings are administratively final.
identified as P. Ex. 71 — P. Ex. 73. On November 23, 2010, CMS filed its opposition to
Petitioner’s cross motion, and, with its opposition, it filed one additional exhibit, which it
identified as CMS Ex. 14. I granted Petitioner leave to file a final reply brief (P. reply
brief), which it filed on December 2, 2010.

I receive into the record of this case CMS Ex. 1 — CMS Ex. 14 and P. Ex. 1 — P. Ex. 73.
IL. Issues, Findings of Fact, and Conclusions of Law

A. Issues
The issues are whether:

1. As of August 20, 2010, Petitioner failed to comply with Medicare
participation requirements.

2. CMS’s remedy determinations, as I describe them in the opening
paragraph of this decision, are authorized and reasonable.

B. Findings of Fact and Conclusions of Law

The report of the August 20 Survey alleges that Petitioner failed to comply substantially
with four Medicare participation requirements. CMS Ex. 1. These requirements are
stated at 42 C.F.R. §§ 483.10(b)(11); 483.25; 483.25(c); and 483.60. CMS’s motion for
summary judgment addresses only Petitioner’s alleged noncompliance with 42 C.F.R. §
483.10(b)(11). CMS contends that proof of Petitioner’s noncompliance with this section
alone is sufficient basis to sustain CMS’s remedy determinations. I agree with CMS for
the reasons that I discuss below. For that reason, I find it unnecessary to decide the
merits of Petitioner’s cross-motion as to the other three alleged deficiencies. CMS would
be entitled to impose the remedies that it determined to impose based on Petitioner’s
noncompliance with 42 C.F.R. § 483.10(b)(11), even if Petitioner were to prevail in its
cross-motion as to the other noncompliance findings made at the August 20 Survey.

I do not address any of the findings of noncompliance that were made at surveys that
predated the August 20 Survey, because these findings are administratively final. The
findings of noncompliance that were made at the earlier surveys are not, however,
irrelevant to my decision. As I shall discuss, Petitioner’s compliance history is relevant
to deciding the amount of the civil money penalty that is at issue here.

I make the following findings of fact and conclusions of law (Findings).
1. As of August 20, 2010, Petitioner failed to comply substantially with
the requirements of 42 C.F.R. § 483.10(b)(11).

In relevant part, 42 C.F.R. § 483.10(b)(11) states:

(i) A facility must immediately inform the resident; consult with the
resident’s physician; and if known, notify the resident’s legal
representative or an interested family member when there is—...

(B) A significant change in the resident’s physical, mental, or
psychosocial status (i.e., a deterioration in health, mental, or
psychosocial status in either life-threatening conditions or clinical
complications);

(C) A need to alter treatment significantly (i.e., a need to discontinue
an existing form of treatment due to adverse consequences, or to
commence a new form of treatment); .. . .

The plain meaning of the regulation is that a facility staff may not discontinue a
physician-ordered treatment without consulting immediately with the resident’s
physician. The words “consult” and “immediately” are not ambiguous. “Consult” means
more than mere notification. It means a discussion in which the physician is fully
informed of the staff’s assessment and is given the opportunity to direct either that
treatment be continued as previously ordered or that it be suspended or modified.
“Immediate” means exactly what the word says. A facility’s staff do not satisfy their
obligations by delaying consultations for hours after they alter a resident’s treatment
regime or discontinue treatment.

The premise of the regulation is that a physician has ultimate charge of a resident’s care
and that his or her decision-making authority is paramount. The regulation accounts for
the differences in the levels of training and professional skills of physicians and nursing
staffs. The regulation presumes that the staff lacks the training and judgment to overrule
a physician’s judgment. Thus, the staff may not countermand a physician’s orders nor
may they vary them significantly without immediate consultation with the physician.
Implicit in the regulation is a finding of potential harm whenever a staff fails to follow a
physician’s order without consulting with the physician.

That is not to suggest that the staff should ignore developments that require physician
involvement. To the contrary, a facility’s professional staff must perform the vital
functions of assessment and execution of a physician’s orders. They also clearly have the
obligation to advise the physician of their judgment as to what care should be provided to
aresident. But, the staff may not contravene or disregard a physician’s order on their
own initiative.
I find the following facts to be undisputed. Resident # 17 is a profoundly impaired
individual who suffers from maladies that include quadriplegia, joint contractures, and
pressure ulcers. CMS Ex. 6 at 7, 11. In August 2010, the resident developed pressure
ulcers on her right heel and left foot. Jd. at 17.

The resident’s treating physician, and Petitioner’s medical director, is Dr. James Beymer.
On August 13, 2010, Dr. Beymer issued the following order respecting the resident’s
right heel:

monitor blister to right heel and leave opened to air, keep heel free from
pressure...

P. Ex. 24 at 1; CMS Ex. 6, at 7. Dr. Beymer issued a new order on August 17. In his
new order, Dr. Beymer ordered that the resident wear foam boots on both of her feet.
CMS Ex. 6 at 5; P. Ex. 25 at 1.

On August 18, 2010, Petitioner’s staff observed the resident’s right foot and concluded
that the foam boot on that foot was exacerbating the resident’s problem rather than
alleviating it. P. Ex. 66 at 3; see P Opp. and Cross-Motion at 12. Petitioner’s staff
lecided, on their own volition, to remove the boot from that foot. P. Ex. 66 at 3; CMS
Ex. 6 at 8, 17. The staff did not consult immediately with either Dr. Beymer or with the
physician’s assistant who worked for him. CMS Ex. 8 at 23,51. The physician’s
assistant first was made aware of the staff’s action when she saw Resident # 17 later
uring the day on August 18, 2010, several hours after the staff had removed the boot.
Id. at 23, 52. A new order was issued on August 19, again directing that the resident
wear foam boots, although the method of attaching the boots was modified to further
relieve pressure. CMS Ex. 6, at 6, 10; P. Ex. 27, at 1.

These undisputed facts unequivocally establish that Petitioner contravened the
regulation’s requirement that a resident’s physician be consulted immediately about the
need to alter significantly, or to discontinue, the treatment that had been ordered for a
resident. Dr. Beymer had ordered that Resident # 17 wear foam boots as a treatment for
the resident’s pressure ulcers. The staff decided on their own volition that the treatment
that Dr. Beymer ordered was doing more harm than good, so they discontinued it. They
id so without immediately consulting Dr. Beymer or his assistant.

Petitioner disputes none of the facts that I have discussed. It argues, rather, that
inferences and conclusions may be drawn from these facts that are favorable to it.
Indeed, it argues that the only inferences and conclusions that may be drawn from the
undisputed facts support my issuing summary judgment in its favor.
In deciding a motion for summary judgment, I am required to draw all reasonable
inferences from the facts that are favorable to the party against whom the motion is filed.
I must deny summary judgment if any reasonable inference would support an outcome
favorable to that party. However, I am not required to draw inferences that are
unsupported by, or contrary to, the facts. Nor am I required to credit arguments that are
incorrect as a matter of law even if those arguments are supported by the facts.

Petitioner argues, first, that CMS’s contention is that the staff improperly determined that
Resident # 17’s boot needed to be removed. Petitioner asserts that this asserted argument
is unrealistic in that it fails to take into consideration the resident’s condition on August
18, the staff's assessment of that condition, and their exercise of professional judgment
when they decided that the boot was doing the resident more harm than good.”

The problem with this argument is that it rests on an incorrect premise. CMS is not
arguing that the staff's judgment was faulty when they decided that the boot needed to be
removed. Rather, it is CMS’s position that the staff was required to consult with Dr.
Beymer immediately upon determining that the boot should be removed. In other words,
CMS does not take issue with the staff's judgment that the boot was doing the resident
more harm than good, but its case is predicated on the staff’s failure to communicate that
judgment to Dr. Beymer and to consult with him. CMS’s actual argument — as opposed
to what Petitioner contends CMS is arguing — is completely consistent with the
regulation’s requirements.

Petitioner argues next that, in fact, there was no significant change in Resident # 17’s
condition that triggered the regulation’s requirement for consultation with Dr. Beymer.
However, CMS is not relying on 42 C.F.R. § 483.10(b)(11)(i)(B), which requires
physician consultation in the event of a significant change in a resident’s condition.
Rather, CMS relies on 42 C.F.R. § 483.10(b)(11)(i)(C), which requires consultation in the
event the staff determines a need to alter treatment significantly (including discontinuing
treatment) due to adverse consequences. It is simply not a necessary element of CMS’s
case that there was a significant change in the resident’s condition.*

> As a companion to this argument, Petitioner contends that CMS argues that its staff
erred in not obtaining Dr. Beymer’s consent prior to removing the boot. However, CMS
never made this argument. Rather, CMS argues only that the staff was obligated to
consult with Dr. Beymer immediately upon determining that the boot needed to be
removed.

* However, one could argue that Petitioner’s staff actually concluded that there was a
significant change in Resident # 17’s condition that necessitated a change in treatment.
Petitioner argues additionally that there was no significant change in the treatment that
the staff gave to Resident # 17. Thus, according to Petitioner, the consultation
requirements of the regulation never came into play. As support for this argument,
Petitioner points to Dr. Beymer’s August 13, 2010 order that required the staff to keep
the resident’s right heel free from pressure. P. Ex. 24 at 1. Petitioner contends that
removing the boot was entirely consistent with this order, because the staff simply was
eeping the resident’s heel free from pressure when it did so. Thus, it argues, there was
no change in treatment and no need to consult Dr. Beymer.

The problem with this argument is that it completely ignores Dr. Beymer’s order of
August 17, 2010, in which he directed that the resident wear foam boots. Indeed,
Petitioner’s reliance on the August 13 order without reference to the August 17 order
makes the August 17 order meaningless.

The only reasonable inference I can draw from Dr. Beymer’s August 17 order is that he
meant exactly what he said when he ordered that the resident wear foam boots.
Removing the boot from the resident’s right foot contravened the August 17 order and
changed significantly the treatment that the resident received.

Dr. Beymer — who is Petitioner’s medical director and an interested witness — supplied a
written declaration. P. Ex. 52. There is nothing in either this declaration, or in other
testimony given by Dr. Beymer, that supports a finding that the staffs removal of the
boot was consistent with Dr. Beymer’s August 17 order. See P. Ex. 71.

At no point in his declaration does Dr. Beymer support Petitioner’s contention that
removing the boot constituted no change in the resident’s treatment. See P. Ex. 52. Dr.
Beymer also testified in another proceeding involving Petitioner. P. Ex. 71. And,
although he asserted in that testimony that he considered the staff's removal of Resident #
17’s boot to be appropriate care, his endorsement of the staff’s action was qualified:

Q: You didn’t think there was anything inappropriate about what your
nursing staff did, did you?

A: No, not at all, not once the nurses reported to me that — you know, what
they had found and what they did.

Id. at 45 (emphasis added). In short, Dr. Beymer accepted the staff’s action, but
only after they consulted with him. He did not suggest that removing the boot was
consistent with the orders that he gave to the staff.

Petitioner then argues that, even if removal of the boot contravened Dr. Beymer’s order,
it was not a significant alteration in the treatment being given to Resident # 17. Petitioner
characterizes the removal of the boot as a “temporary intervention” that would protect the
resident until the physician assistant — who saw the resident hours after the boot was
removed — could evaluate the resident and decide whether and how to modify the care
that was being given to her. See P. Ex. 62 at 6.

However, and despite Petitioner’s characterization of its staff’s act, the undisputed facts
are that the staff discontinued the treatment that Dr. Beymer had ordered for Resident #
17. Discontinuing treatment, even temporarily, plainly triggers the consultation
requirement of 42 C.F.R. § 483.10(b)(11)(i)(C). As Ihave stated, the regulation demands
immediate consultation and not consultation some hours after the staff takes action.

Petitioner also contends that the care it gave to Resident # 17 was consistent with
regulatory requirements, because it was delivered in compliance with the requirements of
42 C.F.R. § 483.25(c). Petitioner’s Reply Brief at 7-9. This regulation requires a facility
to ensure that a resident with pressure sores receives the necessary treatment and services
to promote healing, prevent infection, and to prevent new sores from developing.
Petitioner argues that removing the boot from the resident’s foot was consistent with the
requirements of this regulation inasmuch as the staff was concerned that the boot was
exacerbating the resident’s problems rather than ameliorating them.

However, there is no inconsistency between the requirements of 42 C.F.R.

§§ 483.10(b)(11) and 483.25(c). A facility is obligated to comply with the requirements
of both regulations. It need not choose compliance with one over compliance with the
other. In this case, Petitioner could have complied with the requirements of 42 C.F.R.

§ 483.10(b)(11) simply by consulting immediately with Dr. Beymer or his assistant when
the staff determined that the boot was putting unacceptable pressure on the resident’s
foot. The staff would have complied with the requirements of 42 C.F.R. § 483.25(c), if
they followed whatever order he gave during consultation.

Reduced to their essence, Petitioner’s arguments all essentially rest on a single premise,
that being Petitioner’s contention that the care that its staff gave to Resident # 17 was
appropriate and consistent with nursing standards of care. Petitioner asserts that it would
have been a violation of nursing standards not to remove the resident’s boot when the
staff determined that the boot was causing additional pressure and injury to Resident #
17. See P. Ex. 53 at 4. However, the question in this case is not whether removal of the
boot may have been an appropriate act by the staff. The issue is whether the staff could
take such an action — contravening an explicit order by the resident’s physician — without
immediately consulting the physician. And, the answer to that question clearly is “no.”
2. CMS’s remedy determinations are authorized and reasonable.

a. Termination of Petitioner’s participation in Medicare is
authorized by the Act and regulations.

The Secretary of this Department or her delegate, CMS, may terminate the participation
in Medicare of any provider, including a skilled nursing facility, which is not complying
substantially with Medicare participation requirements. Act Section 1866(b)(2); 42
C.F.R. § 488.456(b)(1)(i). The authority to terminate participation does not depend on
the presence of immediate jeopardy level noncompliance. See 42 C.F.R. § 488.301. Nor
does it require noncompliance of a specific duration. The mere presence of substantial
noncompliance, in and of itself, is all that is needed to terminate participation.

Here, CMS determined to terminate Petitioner’s participation, after Petitioner manifested
noncompliance for several months. However, the triggering findings were those that
were made at the August 20 Survey. Petitioner’s noncompliance as of that survey with
the requirements of 42 C.F.R. § 483.10(b)(11) is sufficient basis to authorize imposition
of the remedy.

b. Civil money penalties of $3,000 per day for each day of the
period that began on August 20, 2010, and that continued
through August 24, 2010, are reasonable.

Petitioner has not argued in any of its briefs that the penalty amount of $3,000 per day
would be unreasonable, if Petitioner were found to be noncompliant. I could find that it
had abandoned its right to argue that the penalty amount is unreasonable. However, I
have elected to review the merits of the penalty amount, and I find it to be reasonable.

Daily civil money penalties for noncompliance that is substantial, but which does not put
residents in immediate jeopardy, must fall within a range of between $50 and $3,000 per
day. 42 C.F.R. § 488.438(a)(1)(ii). There are regulatory criteria for deciding where
within this range a penalty amount should fall. These are set forth at 42 C.F.R.

§§ 488.438(f)(1) — (4) and 488.404 (incorporated by reference into 42 C.F.R.

§ 488.438(f)(3)). The criteria include: the seriousness of a facility’s noncompliance; its
compliance history; its culpability for noncompliance; and its financial condition.

As I have discussed, Petitioner did not offer any argument concerning the reasonableness
of the $3,000 daily penalty amount that CMS determined to impose. I must therefore
address the merits of the issue based only on what CMS has offered.

The $3,000 daily penalty amount is a continuation of penalties that CMS previously
determined to impose. In its July 20, 2010 notice to Petitioner, CMS advised it that it
was imposing penalties of $3,000 per day for noncompliance that began on June 27,

10

2010. That determination reflected findings of noncompliance that were made at surveys
that are not being challenged by Petitioner. Consequently, the $3,000 daily penalty
amount that was imposed beginning in June 2010 is administratively final. The question
I must decide is: did Petitioner’s noncompliance as of August 20, 2010, merit continuing
these penalties at the amount of $3,000 per day for four additional days?

I conclude that the amount is reasonable based on the undisputed facts offered by CMS.
Petitioner has a very lengthy history of noncompliance. The unchallenged findings of
noncompliance made by CMS include numerous instances of noncompliance, several of
which were at the immediate jeopardy level. Penalties of $10,000 per day for immediate
jeopardy level noncompliance were insufficient inducement for Petitioner to correct all of
its noncompliance. Consequently, and based in large measure on Petitioner’s poor
compliance history, CMS determined in July 2010 to continue penalties at the $3,000 per
day amount, the maximum penalty amount that could be imposed for non-immediate
jeopardy level deficiencies.

It was not unreasonable for CMS simply to continue the penalties at $3,000 per day from
August 20 through August 24, 2010 given this poor compliance history and given
Petitioner’s evident inability to correct its noncompliance. Petitioner’s compliance
history and its failure to correct thus justify the penalties imposed here.

Moreover, Petitioner’s noncompliance with the requirements of 42 C.F.R.

§ 483.10(b)(11) is, by itself, a serious deficiency. As I have discussed, this regulation
implicitly rests on the fundamental differences in training and skills of a physician as
opposed to nursing staff at a skilled nursing facility. There are obvious dangers when a
nursing staff oversteps its authority, as Petitioner’s staff did here.

c. Denial of payment for new Medicare admissions for each day
of the period that began on August 20, 2010 and that
continued through August 24, 2010 is authorized by law.

CMS is authorized to deny payment for new Medicare admissions as a remedy for any
failure by a skilled nursing facility to comply substantially with one or more Medicare
participation requirements. 42 C.F.R. § 488.417. In this case, imposition of the remedy
for the period beginning on August 20, 2010 and continuing through August 24, 2010 is
authorized by Petitioner’s noncompliance with the requirements of 42 C.F.R.

§ 483.10(b)(11).

/s/
Steven T. Kessel
Administrative Law Judge