Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Mercy Bellbrook, ) Date: July 7, 2008

CCN: 23-5470 )
)
Petitioner, )
)

-V.- ) Docket No. C-07-437

) Decision No. CR1812
Centers for Medicare & Medicaid )
Services. )
)

DECISION

In this appeal, Petitioner Mercy Bellbrook contests a determination by the Centers for
Medicare & Medicaid Services (CMS) that it was not in substantial compliance with a
requirement for participation in the Medicare and Medicaid programs between February
20, 2007 and March 14, 2007, and challenges the remedy imposed on it by CMS as a
result. For the reasons set out below, I sustain CMS’s determination and affirm the
remedy.

I. Procedural Background

Petitioner is a long-term care facility located in Rochester Heights, Michigan. It
participates in the Medicare and Medicaid programs. The Michigan Department of
Community Health (MDCH) conducted a complaint investigation survey of Petitioner’s
facility on February 27, 2007. The survey finding was based on an incident at
Petitioner’s facility on February 20, 2007. That survey found Petitioner not to be in
substantial compliance with one of the requirements for participation in those programs,
specifically, the requirement set out at 42 C.F.R. § 483.25(h)(2) that obliges such
facilities to ensure that each facility resident receives adequate supervision and assistance
devices to prevent accidents.
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On March 14, 2007, CMS notified Petitioner that it would impose a Civil Monetary
Penalty (CMP) of $4500 per day beginning February 20, 2007 and continuing through
February 25, 2007 based on a period of substantial noncompliance creating a condition of
immediate jeopardy at a scope and severity level of “J” and a CMP of $150 per-day
beginning on February 26, 2007 at a scope and severity level of “G” until the facility had
substantially corrected the deficiency. CMS proposed additional sanctions, but they did
not take effect and are thus not before me.

MDCH conducted a revisit survey on March 30, 2007 and found that Petitioner had
returned to substantial compliance with the requirement effective March 15, 2007. On
April 3, 2007, CMS notified Petitioner that it would impose the $150 per-day CMP for
the 17 days from February 26, 2007 through March 14, 2007, for a total CMP of $29,550.

Petitioner perfected its appeal of CMS’s action in its May 11, 2007 Request for Hearing.
By Order of September 7, 2007, I permitted the parties to submit this case for decision on
a written record consisting of exhibits and briefs. The briefing cycle has closed. CMS
had proffered CMS Exhibits 1-52 (CMS Exs. 1-52); all are admitted in the absence of
objection. Petitioner has proffered Petitioner’s Exhibits 1-40 (P. Ex. 1-40); in the absence
of objection, all are admitted.

II. Issues

The issues before me in this appeal are:
1. Whether Petitioner was in substantial compliance with requirements for
participation in the Medicare and Medicaid programs, in this case, the

specific requirements set out at 42 C.F.R. § 483.25(h)(2); and, if so,

2. Whether the CMP imposed on Petitioner by CMS as a result of its
alleged substantial noncompliance is reasonable.

Ii. Controlling Statutes and Regulations

Petitioner is a long-term care facility. Its participation in Medicare and Medicaid is
governed by sections 1819 and 1919 of the Social Security Act (Act), 42 U.S.C. § 301 et
seq., and the regulations at 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act invest
the Secretary with authority to impose remedies, including 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
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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 facilities
participating in Medicare and Medicaid may be surveyed on behalf of CMS by state
survey agencies in order to ascertain whether the facilities are complying with
participation requirements. 42 C.F.R. §§ 488.10-488.28. The regulations contain special
survey conditions for long-term care facilities. 42 C.F.R. §§ 488.300-488.335. 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 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 $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 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.

The requirement of participation directly at issue in this litigation is set out at 42 C.F.R.
§ 483.25(h)(2), and is part of a broad regulatory scheme intended to assure that facilities
provide, and that their residents receive, the care and services necessary to attain and
maintain each resident’s highest practical level of physical, mental, and psychological
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well-being. The terms of that regulation require that the facility must ensure that:

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

42 C.F.R. § 483.25(h)(2).

A facility may challenge the scope and severity of noncompliance cited by CMS only ifa
successful challenge would affect the range of CMP amounts imposed by CMS or would
affect 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 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 Services, 363 F.3d 583 (6th
Cir. 2003). Since the scope and severity of Petitioner’s alleged noncompliance between
February 20, 2007 and February 25, 2007 is cited and sanctioned at a level of immediate
jeopardy, the scope and severity of that alleged noncompliance is properly before me.

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). Thus, the scope and severity of Petitioner’s
noncompliance between February 26, 2007 and March 14, 2007, cited at a level below
that of immediate jeopardy, is not properly before me in this appeal.

IV. Findings and Conclusions

I find and conclude as follows:

1. Because it failed to ensure that R-500 received adequate supervision and assistance
devices to prevent accidents, Petitioner was not in substantial compliance with 42 C.F.R.

§ 482.25(h)(2) on February 20, 2007.

2. Petitioner remained substantially non-compliant with 42 C.F.R. § 482.25(h)(2) until
March 14, 2007.

3. CMS’s assessment of the scope and severity of Petitioner’s substantial noncompliance
between February 20, 2007 and February 25, 2007 at an immediate jeopardy ”J” level is
not clearly erroneous.
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4. CMS’s assessment of the scope and severity of Petitioner’s substantial noncompliance
between February 26, 2007 and March 14, 2007 at “G” level is not properly before me in
this appeal.

5. The CMP assessed by CMS for the period of Petitioner’s substantial noncompliance
between February 20, 2007 and February 25, 2007 at $4500 per day is not unreasonable.

6. The CMP assessed by CMS for the period of Petitioner’s substantial noncompliance
between February 26, 2007 and March 14, 2007 at $150 per day is not unreasonable.

7. The total CMP assessed by CMS against Petitioner in this case, $29,550, is not
unreasonable.

V. Discussion

A. The facility did not provide an adequate level of supervision or
assistance devices to prevent accidents as required by 42 C.F.R.
§ 483.25(h)(2).

The material contours of this litigation are neither obscure nor complex. In February,
2007, an 86-year-old woman who will be called R-500 in this discussion was a resident in
Petitioner’s facility. She had been a resident there for almost five years and was well-
nown to the staff.

By early 2007, R-500’s facility records reflected diagnoses of arthritis, spinal stenosis,
severe kyphosis, osteoporosis, chronic obstructive pulmonary disease, degenerative joint
disease, depression, and dementia. Facility staff had noted tremor in R-500’s arms and
decreased control over the position of her head, as well as muscular wasting and atrophy.
Within the month immediately prior to the incident from which this litigation arises,
R-500 had been observed by facility staff to require assistance with eating as the result of
er poor sitting posture, her poor head and trunk control, her physical inability to push her
wheelchair and reach for food items on tables before her, her moderately-impaired
cognitive and memory functions, and her poor decision-making skills. CMS Ex. 13, at 3;
CMS Ex. 14, at 1, 3, 10; CMS Ex. 20, at 5-6; CMS Ex. 40, at 4; P. Ex. 7, at 3, 11, 13;

P. Ex. 9, at 3, 6.

Not more than five weeks before the incident at issue, R-500 had been reassigned from
the facility’s general dining room to a special location, the Robin’s Nest, intended for
residents who required substantial help and supervision with their meals. CMS Ex. 28, at
; CMS Ex. 40, at 2, 3; P. Ex. 16, at 2. Less than four weeks before the incident, the
facility recorded its observation that R-500 tended to spill her food as she reached from
the table to her mouth, the result of decreased strength and range of motion in her right
arm. CMS Ex. 20, at 8; P. Ex. 9, at 8. Her doctor had ordered “shallow bowls for soup”

6

because of R-500’s limitations. CMS Ex. 19, at 1-2. One of the facility’s staff recalled
that R-500 always asked for an extra “cloth protector” to be placed in her lap at meals,
because she didn’t like her clothes soiled with spilled food. The facility knew of R-500’s
desire to be independent and “eat by herself,” and it knew that she believed herself
capable of doing so.

In preparation for the noon meal on Tuesday, February 20, 2007, R-500 was moved in her
wheelchair to the Robin’s Nest and seated at a table by herself. Nothing was on the table
except a glass of ice-water. Hot soup in covered individual bowls was brought to a
counter just inside the Robin’s Nest by tray from the main dining room. R-500 and the
two other residents dining in the Robin’s Nest were then left alone for not more than 10
minutes.

There were six Certified Nurse Assistants (CNAs) on duty in the facility at the time, and
at least two Food Service Aides (FSAs), five Registered Nurses (RNs), one Speech
Language Pathologist (SLP), one Registered Dietician (RD), the Assistant Food Service
Director (AFSD), and the Directors of Food Services (FSD) and of Nurses (DON).
Nevertheless, the three residents in the Robin’s Nest were left unattended, unobserved,
and unsupervised while they waited to be served their hot soup.

t is not clear how, or from where or from whom, or in what sort of vessel R-500 got the
ot soup with which she burned herself: R-500 was unobserved, unsupervised, and
unattended when the incident occurred. But get the soup she certainly did. And burn
erself with it by spilling it into her lap she most certainly did: R-500 suffered a second-
degree burn on her left thigh six to eight inches long, and varying from two inches wide at
its narrowest to approximately twice that width at its broadest point which was still
visible five week later. CMS Ex. 11, at 4; CMS Ex. 16, at 1; CMS Ex. 20, at 15; CMS
Ex. 21, at 1; CMS Ex. 40, at 3; P. Ex. 11, at 1. When a staff-member returned to the
Robin’s Nest, R-500 was found to be visibly distressed, her fingers in the ice-water still
on the table before her, her lap, wheelchair and the floor around her wet with spilled hot
soup. R-500 said nothing at the time about how the spill occurred, but three days later
R-500 stated that she believed that the “tea was on the stove, she took it off stove, didn’t
now it was so hot. She spilled some and burned her leg... .” CMS Ex. 28, at 1; CMS
Ex. 40, at 3. R-500 also insisted again that she remained capable of eating independently,
and needed no help in doing so.

CMS argues that these facts demonstrate that Petitioner’s facility then and there failed to
comply with 42 C.F.R. § 483.25(h)(2), by failing to ensure that R-500 received adequate
supervision and assistance devices to prevent accidents.' CMS determined that the

' This alleged deficiency was cited as F-324. In August, 2007, the requirements
established by 42 C.F.R. §§ 483.25(h)(1) and 483.25(h)(2) were combined into a single F-
Tag, F-323. This Decision will cite F-324, the F-Tag employed at the time of the
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immediate jeopardy was abated on February 27, 2007, during the survey. The facility
was found to be back in substantial compliance, effective March 15, 2007, based on a
revisit survey that was conducted on March 30, 2007.

Petitioner generally admits the facts but rejects the conclusion: it reminds CMS and me
that 42 C.F.R. § 483.25(h)(2) does not impose on skilled nursing facilities a standard of
strict liability for accidents, and asserts that “[i]n this case the Facility did everything in
its power to assess R-500 and anticipate any possible injuries that could occur as a result
of her mental and physical capacity.” P. Br. at 16. This argument seems to suggest that
because nobody knows how, where, from whom, or in what vessel R-500 got her hot
soup, Petitioner cannot now be expected to have anticipated the precise manner in which
the accident ultimately occurred and to have mitigated the risk. While a facility’s duty of
care owed to its residents is not one of strict liability, the facility must provide adequate
supervision and assistance devices to prevent accidents. Crestview Manor, DAB CR1350
(2005); Windsor Health Care Center, DAB No. 1902, at 5 (2003). It is evident here that
the facility failed to provide adequate supervision, in fact it provided no supervision

at all. For this reason, I find that the facility did not provide an adequate level of
supervision to prevent accidents, as required by 42 C.F.R. § 483.25(h)(2) (Tag F-324).

The well-understood law of this forum declares that a facility may not dismiss an accident
as beyond its obligation to guard against simply because that accident has not occurred
before to the same resident in precisely the same manner, or because its potential has not
become obvious by having already happened. Josephine Nursing Home, DAB No. 1908
(2004). Put another way, while the facility might not have been expected to foresee all of
the details of the hot-soup incident, it could reasonably be expected to foresee that R-500
was at risk of burns from hot soup or any other hot liquid if not adequately supervised
when hot soup or any hot liquid was present. Batavia Nursing and Convalescent Center,
DAB No. 1905, at 45 (2004).

In Briarwood Nursing Center, DAB No. 2115 (2007) and Century Care of Crystal Coast,
DAB No. 2076 (2007), the Board recently distilled the requirements of 42 C.F.R.
§ 483.25(h)(2) into this cogent language, explaining that the regulatory requirement —

obligates the facility to provide supervision and assistance devices designed
to meet the resident’s assessed needs and to mitigate foreseeable risks of
harm from accidents. In addition, the Board has indicated that a facility
must provide supervision and assistance devices that reduce known or
foreseeable accident risks to the highest practicable degree, consistent with
accepted standards of nursing practice.

See also Golden Age Skilled Nursing & Rehabilitation Center, DAB No. 2026 (2006).

incident.
8

Illuminating as that language is, it leaves one important question unresolved: how to
determine when an “accident risk” was — or became — “foreseeable?” The quantum of
care demanded of a facility in terms of supervision and assistance devices is “the highest
practical degree” consistent with accepted nursing standards when “foreseeable accident
risks” or “foreseeable risks of harm” are present. Marshaling a facility’s resources to
provide the highest practical degree of supervision and assistance may in many situations
be the easier part of the job: the harder part may be knowing when to do so.

Now, there may be no more-debated concept in this country’s jurisprudence than the
concept of foreseeability. Ambiguous, attenuated webs of causation and intervening
events have defied any simple definition of the concept since well before Mrs. Palsgraf
bought her ticket to Rockaway Beach. But when the Board decided Briarwood, it was
not addressing an ambiguous web of attenuated facts. It was examining a facility’s
specific response to its resident’s known vulnerabilities and proclivities in a concrete
context of event-potential and risk of harm. Its definition of “foreseeable” is realistic and
practical, and it is the definition I shall apply in assessing the facts before me:

The Board has held that assessing foreseeability, simply requires looking at
the “circumstances that were apparent or should have been apparent to the
facility and then evaluat[ing] whether those circumstances — which can
often be unique — were such that the facility could reasonably have
anticipated the possibility of harm to the resident.” Lutheran Home at
Trinity Oaks, DAB No. 2111, at 17 (2007).

Briarwood, DAB No. 2115, at 13, n.9.

Applying that definition, I have no difficulty in finding that R-500’s accident was
foreseeable. Her physical impairments made her inordinately susceptible to spilling hot
soup on herself if she attempted to feed herself without help, and the facility knew it.
The facility knew that she might attempt such an undertaking. Her cognitive
impairments made it quite unlikely that she would perceive the whole range of dangers
inherent in attempting to feed herself hot soup without help, and the facility knew that,
too. The facility knew that hot soup could be spilled and if spilled could do harm, as is
shown by the fact that the bowls of hot soup were covered when they were left
unwatched in the Robin’s Nest. There was, in short, nothing unforeseeable about the
accident.

Nor have | any difficulty in concluding that the facility fell short in its duty to provide
the highest practicable degree of supervision and assistance devices, consistent wit!
accepted standards of nursing practice, in the face of that foreseeable accident. The
facility was not in substantial compliance with 42 C.F.R. § 483.25(h)(2) on February
20, 2007 because it left R-500 unsupervised, unobserved, and unattended in the Robin’s
Nest after the hot soup had been delivered and left there unwatched.

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CMS was not clearly erroneous in its assessment of the scope, severity, and duration of
the facility’s noncompliance. The injury R-500 sustained was serious, and could have
been far more serious still; in any case, the criteria for a determination of immediate
jeopardy set out in 42 C.F.R. § 488.301 are more than satisfied by a second-degree burn
covering approximately 20 square inches of an 86-year-old woman’s leg. CMS was not
unreasonable in its assessment of the total amount of the CMP, nor was it unreasonable
in assessing any of the component elements of that total, that is, the period of
Petitioner’s noncompliance, and the assignment of daily CMP amounts during the
period.

The foregoing discussion sets out the broad character of my view of the evidence in this
record, and the principles I have applied to that evidence in reaching my findings and
conclusions. What follows below will supply the details and explain the connections
among that evidence, those principles, and my ultimate decision in this case.

R-500 was originally admitted to the facility on May 2, 2002, and readmitted on March
30, 2005 after a hospitalization. CMS Ex. 12. Five years after her initial admission, on
February 20, 2007, R-500 received a second degree burn when she spilled soup on
herself. It is evident that she had been in the facility long enough to be well known to
the staff.

Her diagnoses are undisputed and are supported by the evidence. R-500 had arthritis,
spinal stenosis, severe kyphosis, osteoporosis, chronic obstructive pulmonary disease,
degenerative joint disease, depression, and dementia. Jd.; CMS Ex. 11, at 3; CMS Ex.
20, at 5; CMS Ex. 40, at 4; P. Ex. 9, at 3. R-50 also had upper extremity tremors. CMS
Ex. 11, at 4; CMS Ex. 20, at 11-12; CMS Ex. 28, at 10; P. Ex. 9, at 11-12.

In January, 2007, staff noted that R-500 required assistance with eating (CMS Ex. 15, at
1-2; P. Ex. 8, at 6-7); required staff to set up meal trays (CMS Ex. 15, at 4; P. Ex. 8, at
3); was receiving occupational therapy for poor sitting posture and decreased head
control; was in a deconditioned state and displayed severe kyphotic posture (CMS Ex.
20, at 3; CMS Ex. 40, at 4; P. Ex. 9, at 4); was dependent upon staff for a// activities of
daily living, including eating; had poor sitting balance and severely impaired limb
movements (CMS Ex. 14, at 1, 3; P. Ex. 7, at 11); had moderate cognitive impairment
and memory loss, made poor decisions, and required cues and supervision (CMS Ex.
13, at 3; CMS Ex. 14, at 10; CMS Ex. 23, at 1; CMS Ex. 40, at 4; P. Ex. 7, at 3, 13); had
a tendency to spill food reaching from table to mouth (/d.). Shallow soup bowls were
recommended for R-500’s use (CMS Ex. 20, at 10; P. Ex. 9, at 10). Her head was noted
to be in her lap as a result of her poor posture (CMS Ex. 20, at 8; P. Ex. 9, at 8); anda
physician’s order dated January 26, 2007, ordered the use of shallow bowls for soup.
CMS Ex. 19, at 1-2.
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R-500’s plan of care dated January 13, 2007, recorded that R-500 required “assistance
with eating as needed.” CMS Ex. 15, at 1; P. Ex. 8, at 6. In fact, Petitioner admits that
R-500 required “assistance with eating due to her mental and physical limitations (P. Br.
at 6) and that her care plan “specifically states that the resident is to receive supervision
with hot liquids.” P. Br. at 5-6.

In February, 2007, prior to the burn incident, it was noted that R-500 required maximum
assistance with eating because she was spilling foods (CMS Ex. 19, at 1-2; CMS Ex. 20,
at 12; P. Ex. 9, at 12; P. Ex. 10); that there was a marked increase in her right upper
extremity tremors and that she was spilling food (/d.); that her hand tremor was
markedly increased (CMS Ex. 28, at 10-11; CMS Ex. 1, at 2; CMS Ex. 40, at 3); and
that she was in a deconditioned state (CMS Ex. 20, at 14; P. Ex. 9, at 14).

All of these observations, diagnoses, and cautionary notations were of record at the
facility prior to the incident on February 20, 2007, when, at 11:50 a.m., R-500 spilled
hot soup on her left thigh while she was in the Robin’s Nest dining room. This event
resulted in a complaint survey of the facility on February 27, 2007.

The Robin’s Nest dining room is one of three dining rooms at the facility. Residents
who eat in the Robin’s Nest dining room are those who need assistance and supervision
with meals. CMS Ex. 28, at 1; CMS Ex. 40, at 2; P. Ex. 16, at 2. Petitioner admits that
the Robin’s Nest dining room was designed for those residents that required assistance
and supervision with meals. P. Br. at4. Mr. Dan Novak, the Food Service Director and
Ms. Susan Spurrier, the Director of Nurses, stated that R-500 was moved from another
dining room to the Robin’s Nest dining room because she was having difficulty with her
posture and getting food to her mouth. CMS Ex. 28, at 3-5. Mr. Novak and Ms.
Spurrier informed the surveyor that even though all soup was supposed to be served to
residents in “narrow necked bowls,” they did not know how it happened that R-500’s
soup was served in a mug on the day of the incident. CMS Ex. 28, at 3; CMS Ex. 40, at
4. They also stated that there was “[n]o staff in the room when [the] soup spilled,” and
that they “don’t know who gave the soup to [R-500].”. CMS Ex. 28, at 4; CMS Ex. 1,
at 4.

Speech therapist Kris Umphrey wheeled R-500 into the Robin’s Nest dining room for
the noon meal on February 20, 2007, and sat her at a table with only ice water on the
table. Then Ms. Umphrey left to get other residents into the dining room. After Ms.
Umphrey returned to the dining room, about 5-10 minutes later, R-500 called out to
Ms. Umphrey saying that she needed assistance because she had spilled her soup.

Ms. Umphrey observed that R-500 had already spilled her soup at that time. CMS Ex.
28, at 12, 18; CMS Ex. 1, at 3; CMS Ex. 40, at 3; P. Ex. 34.

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Although the staff concluded that R-500 would have been unable to get the soup on her
own, no one at the facility knew then or knows now how R-500 got her soup on
February 20, 2007. CMS Ex. 1, at 4-5; P. Ex. 13, at 3.

Petitioner’s normal procedure was that the dietary staff was to transport the soup to the
Robin’s nest dining room and nursing staff was to serve the soup. P. Br. at 10-11. The
normal procedure was that soup was first served to residents in another dining room.
Staff members would fill soup bowls from a steam table in the other dining room and a
food service aide would transport the soup on a tray to the Robin’s Nest dining room
and place the tray of food on a cabinet just inside the door of the Robin’s Nest. CMS
Ex. 1, at 3. Thereafter, CNAs would serve the soup to the residents in the Robin’s Nest
dining room. CMS Ex. 28, at 4, 18; CMS Ex. 1, at 2-3; CMS Ex. 26, at 6-11. Carrie
Sutton, the food service aide who delivered the soup on February 20, 2007, asserts that
she placed the servings of soup on the cabinet inside the doorway of the Robin’s Nest
dining room and confirmed that the soup was served in narrow neck bowls with lids that
were to be served by the nursing staff. CMS Ex. 28, at 6, 18; CMS Ex. 29, at 6, 18; P.
Br. at 7. It is possible that Ms. Sutton’s statement was self-serving. At any rate, the
facility claims and the Facility Incident Report (P. Ex. 1) states that R-500 spilled a
mug, not a bowl, of hot soup on February 20, 2007, which resulted in a burn of her
thigh.

All six CNAs on staff during the noon meal when the hot soup incident occurred denied
giving R-500 her soup, denied knowing how R-500 got her soup, and denied being
present in the Robin’s Nest dining room when the incident occurred. CMS Ex. 1, at 4-
5; CMS Ex. 28, at 8-9; CMS Ex. 11, at 4; P. Ex. 17; P. Ex. 23, P. Ex. 24. The exact
same denials were expressed by all five of the registered nurses on duty on February 20,
2007. P. Exs. 18-22. DON Spurrier also expressed the same denials. P. Ex. 17, at 1.
The dietary staff and the other facility staff expressed the same denials, as well. P. Exs.
25-40. Even the Administrator of the facility, Administrator Wideman, who was not
working on February 20, 2007, stated that she did not know how R-500 obtained the
soup. P. Ex. 16, at 1.

R-500, when interviewed by the surveyor, stated that she spilled the “tea” on her leg
after she “took it off the stove.” CMS Ex. 40, at 3. Surveyor Kaelin concluded that R-
500 could not remember the details of the spilled soup incident given R-500’s
incoherent response. Jd. Surveyor Kaelin examined the wound and saw a second
degree burn on R-500’s left thigh which measured six by eight inches long, three to four
inches wide in two areas, and two inches wide in the remaining area. Jd. Surveyor
Kaelin also observed R-500 spill a lot of food on her lap while eating, which at the time
of the survey was protected by a cloth protector.
12

Petitioner protests that it does not know how R-500 obtained the soup and asserts that
the soup was in a mug when R-500 was left at her table for up to 10 minutes with only a
glass of water in front of her. Petitioner completely denies the possibility that one of its
own staff served R-500 the soup, and it opines that possibly a visitor, volunteer, student,
or family member may have served R-500 the soup. P. Br. at 12. Such a suggestion
might benefit from even a scrap of evidence that a visitor, volunteer, student, or family
member had been observed in or near the Robin’s Nest; in the absence of any such
evidence, the suggestion seems embarrassingly unlikely. The much more likely
possibility is that one of the 15 or more hands-on care-givers in the immediate area at
the time did so. Even though all of the staff denied serving soup to R-500, it is obvious
that such denials are at least in part subject to examination through the prism of the
staff’s own self interest. Ms. Sutton, the food service aide, claimed that the soup was in
narrow-necked bowls but the evidence established that R-500 spilled a mug of soup.
Therefore, to accept Petitioner’s speculative theory that a visitor, volunteer, student, or
family member served R-500 the soup would require me to imagine that such an
unknown and unobserved visitor, volunteer, student, or family member happened along
in those few minutes that R-500 was unattended and happened to have a mug available,
took off the lid from the narrow necked bow] containing the soup, transferred the soup
from the narrow necked bow! into a mug, and served R-500 the soup. My imagination
cannot stretch so far.

The very fact that no one knows how R-500 obtained the soup and no one admits to
being there to supervise or assist her when hot soup was present in the dining room
clearly demonstrates a failure of supervision and a failure of the facility and its staff to
provide R-500 with the necessary assistance to eat hot soup safely. Petitioner’s
argument that this incident was not foreseeable because no resident should have been
able to obtain hot liquids without nursing staff present and that the nursing staff should
have been free to continue to transport residents to the Robin’s Nest dining room
without concern fails. Under these circumstances, as soon as any resident was brought
to the Robin’s Nest dining room, at least one staff member should have remained to
supervise the resident or hot liquids should not have been brought into the dining room
until supervision could be provided. The possibility of a burning accident is entirely
foreseeable when R-500, a resident with significant physical limitations and dementia,
was left unsupervised, unattended, and unobserved in the presence of hot soup.

B. CMS’s determination that the deficiency cited against Petitioner was at an
immediate jeopardy level is clearly not erroneous.

I next consider whether CMS’s immediate jeopardy finding was “clearly erroneous.”
CMS’s determination as to the level of a facility’s noncompliance, including a finding
of immediate jeopardy, must be upheld unless it is “clearly erroneous.” 42 C.F.R.

§ 498.60(c). The Board has observed that the “clearly erroneous” standard imposes a
“heavy burden” on facilities to show that no immediate jeopardy exists, and has
13

sustained determinations of immediate jeopardy where CMS presented evidence “from
which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.” Barbourville
Nursing Home, DAB No. 1962, at 11 (2005) (citing Florence Park Care Center, DAB
No. 1931, at 27-28 (2004) (citing Koester Pavilion, DAB No. 1750 (2000)); see also 42
C.F.R. § 498.3(d)(10).

CMS argues that R-500 may have been burned because she was given hot soup to eat
without assistance and spilled it or she could have been burned because she sat with
spilled soup on her leg for as much as 10 minutes, when Ms. Umphrey noticed the
spilled soup after an absence from the Robin’s Nest dining room. Either hypothetical
case clearly shows inadequate supervision by the facility, and neither hypothetical case
affords Petitioner a defense. R-500’s burn was classified as a second degree burn that
covered a large surface area on her thigh that was still evident one month after her
injury, definitely a serious injury. CMS Ex. 21, at 1; CMS Ex. 36, at 1, 2,3; CMS Ex.
50, at 1, 5; P. Ex. 11, at 1, 3-5. The lack of supervision that resulted in the burn that R-
500 received amounts to an immediate jeopardy situation. R-500 was one of three
residents present in the Robin’s Nest dining room at the time of the incident. Since not
even one — | emphasize, not even a single — staff member acknowledges having been
present in the Robin’s Nest dining room at the time of the spilled soup incident, that
absence of staff left R-500 and any other resident present in the dining room without
any supervision whatsoever. That was, then, by the evidence of the facility’s own staff,
a manifestly perilous situation in the only dining room that served all the residents in the
facility who require assistance and supervision with eating. CMS’s determination is
certainly not clearly erroneous.

I reject Petitioner’s argument that R-500’s burn did not amount to an immediate
jeopardy situation because R-500’s burn was a minor burn on her thigh and the burn
did not cover 15% or more of R-500’s body surface area. Petitioner misunderstands the
definition of immediate jeopardy.

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 (emphasis
added). Leaving an elderly demented resident, with significant physical limitations and
who has been assessed as requiring supervision with eating, completely alone and
unsupervised in the presence of hot liquids is likely to cause serious injury. In addition,
any similarly-situated resident was also in immediate jeopardy.
14

C. A $4500 per-day CMP, effective from February 20, 2007 through February
25, 2007, and a $150 per-day CMP, effective from February 26, 2007 through
March 14, 2007 is reasonable.

CMS determined to impose a $4500 per-day CMP for six days of immediate jeopardy,
effective from February 20, 2007 through February 25, 2007, and a $150 per-day CMP
for 17 days, effective from February 26, 2007 through March 14, 2007, until the facility
came back into substantial compliance. The total amount of the CMP imposed against
Petitioner amounts to $29,550. The regulations authorize the imposition of a CMP, of
from $3050 per day to $10,000 per day, for deficiencies that constitute immediate
jeopardy to a facility’s residents. 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 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). I must assess de novo the reasonableness of the CMP proposed by
CMS based on the factors set forth at 42 C.F.R. § 488.438(f). In determining the
amount of the CMP, the following factors specified at 42 C.F.R. § 488.438(f) must be
considered: (1) the facility’s history of non-compliance, including repeated
deficiencies; (2) the facility’s financial condition; (3) the seriousness of the deficiencies
as set forth at 42 C.F.R. § 488.404; and (4) the facility’s degree of culpability.

CMS provided evidence concerning Petitioner’s history of noncompliance. Petitioner
was out of compliance with three deficiencies during a survey that was conducted in
May 2004, with two deficiencies during a survey that was conducted in April 2005,
with one deficiency during a survey that was conducted in May 2006, and with four
deficiencies during a survey that was conducted in April 2007. CMS Ex. 52, at 1.
Petitioner’s financial assets establish that Petitioner has the assets to pay the CMP.
CMS Ex. 51, at 1,5. The seriousness of R-500’s injury, as I have already discussed,
was substantial. Finally, Petitioner’s culpability was also substantial in that it
completely failed to provide any supervision whatsoever for R-500 during her meal on
February 20, 2007. This shows a disregard for R-500 and for other residents who may

ave been present in the Robin’s Nest dining room. In light of the relevant factors, a
$4500 per-day CMP is not only reasonable in the case before me but it is also on the
ower end of the range of possible immediate jeopardy CMPs.

Petitioner argues that the period of immediate jeopardy did not last six days. Instead, it
argues that it implemented an action plan which was shared with the surveyor on
February 23, 2007. P. Reply Br. at 12; P. Ex. 4. Petitioner continued to send additional
information to MDCH and emailed the plan of correction on February 25, 2007.

P. Reply Br. at 12. Also statistical data on the number of residents assessed and the
number of staff “in-serviced” (ad-hoc training conducted by the facility itself) was
faxed on February 26, 2007. Petitioner argues that no substantive changes to the plan
were made since it was presented to the surveyor on February 23, 2007.

15

Immediate jeopardy was determined by CMS to last through February 25, 2007. The
accepted case law is that it is Petitioner’s burden to show an earlier abatement date for
immediate jeopardy and that CMS’s determination of the duration of immediate
jeopardy must be clearly erroneous. Barn Hill Care Center, DAB No. 1848 (2004),
Spring Meadows Health Care Center, DAB No. 1966 (2005); Parkway Manor Health
Center, DAB CR1146 (2004). CMS is not clearly erroneous in determining that the
immediate jeopardy lasted for two additional days past February 23, 2007. The plan of
correction established that a number of Petitioner’s staff had not yet been “in-serviced”
prior to February 23, 2007. Several staff members, approximately 16, were “in-
serviced” on February 24, 2007 and several more, approximately 12, were “in-serviced”
on February 25, 2007. CMS Ex. 31, at 2, 13-15. CMS determined that a substantial
number of Petitioner’s staff were “in-serviced” on the responsibilities of monitoring the
dining process and elder safety with hot liquids by February 25, 2007 and that the
immediate jeopardy period terminated on that date. CMS’s determination was not
clearly erroneous.

Even after Petitioner had abated the immediate jeopardy, Petitioner continued to be out
of substantial compliance for 17 additional days because the entire staff had not been
oriented to the new policies and procedures and compliance with the new policies and
procedures had not yet been verified by the state agency. CMS Ex. 1, at 7. A $150 per-
day CMP is almost the minimum CMP available for non-immediate jeopardy
deficiencies and is also reasonable.

VI. CONCLUSION

For the foregoing reasons, I conclude that Petitioner failed to comply substantially with
federal participation requirements and that the CMPs imposed against it are reasonable.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Benny Nathaniel Howard, III, ) Date: July 15, 2008

)
Petitioner, )
)

-Vv.- ) Docket No. C-08-149

) Decision No. CR1811
The Inspector General. )
)

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Benny Nathaniel
Howard III (Petitioner) from participating in Medicare, Medicaid, and all federal health
care programs for a period of five years. I find that the I.G. is authorized to exclude
Petitioner pursuant to section 1128(a)(1) of the Social Security Act (Act), and the five-
year exclusion imposed by the LG. is the minimum mandatory period of exclusion under
the Act. Act, section 1128(a)(1).

I. BACKGROUND

Petitioner works as a behavioral analyst for Behavior Services of Tennessee (BSTN).
.G. Brief (Br.) at 3. Petitioner was paid by BSTN with TennCare funds received by the
Tennessee Department of Mental Retardation Services. TennCare is the state Medicaid
program in Tennessee. /d. Petitioner was charged with billing BSTN for services that
were not provided to a TennCare beneficiary and with forging the name of the
eneficiary’s mother on the patient notes for those services. Jd. On March 19, 2007,
Petitioner pled guilty to both charges. I.G. Exhibit (Ex.) 2.

The L.G. notified Petitioner by letter dated September 28, 2007 of his exclusion from
participation in Medicare, Medicaid, and all other federal health care programs for a
mandatory five-year period pursuant to section 1128(a)(1) of the Act. LG. Ex. 1.

By letter dated November 26, 2007, Petitioner timely appealed the I.G.’s decision. In his
request for hearing, Petitioner claimed that he was not convicted of any criminal offense

2

and therefore could not be excluded. The case was assigned to me for hearing and
decision. On February 28, 2008, I convened a prehearing telephone conference with
counsel for Petitioner, Charles S. Mitchell, Esq., and counsel for the I.G., Michael Henry,
Esq. and Christina McGarvey, Esq.

During the call, I informed the parties that my jurisdiction was limited in this case to a
determination as to whether the I.G. had the legal authority to exclude Petitioner and
whether the exclusion period was reasonable. I also informed the parties that they had the
option of waiving the right to an oral hearing and proceeding to a decision based on the
briefs and documentary evidence. The parties agreed to waive the right to an oral hearing
and I established a briefing schedule. See order dated March 4, 2008.

On March 27, 2008, the I.G. submitted its initial brief along with four proposed exhibits
(1.G. Exs. 1-4). In my March 4th briefing Order, Petitioner was given until April 30,
2008 to file a response and proposed exhibits. Petitioner did not file a brief in response or
submit proposed exhibits. On May 15, 2008, I issued Petitioner an Order to show cause
why the case should not be dismissed for abandonment pursuant to 42 C.F.R.

§ 1005.2(e)(3). To date, Petitioner has responded to neither the March 4th briefing Order
nor the May 15th Order to show cause.

Pursuant to 42 C.F.R. § 1005.14, an Administrative Law Judge (ALJ) has the authority to
sanction any person, including any party or attorney, who fails to comply with an order or
procedure. Those sanctions can include a dismissal of the action or decision by default
against the party who fails to comply. 42 C.F.R. §§ 1005.14 (a)(5) and (6). Given
Petitioner’s failure to respond to any of my directives, I have only the brief submitted by
the I.G. on which to decide the case and thus enter a default decision against Petitioner. I
admit I.G. Exs. 1-4 into evidence.

Il. CONTROLLING STATUTES AND REGULATIONS

Section 1128(a)(1) of the Act requires the Secretary of Health and Human Services
(Secretary) to exclude from participation in Medicare, Medicaid, and all other federal
health care programs, any individual or entity that has been convicted of a criminal
offense related to the delivery of an item or service under the Medicare or Medicaid
programs. 42 U.S.C. § 1320a-7(a)(1).

An exclusion imposed under section 1128(a)(1) must be for a period of at least five years.
Act, section 1128(c)(3)(B); 42 U.S.C. § 1320a-7(c)(3)(B). Pursuant to 42 C.F.R.

§ 1001.102(b), no exclusion pursuant to section 1128(a)(1) may be for less than five
years.
3

An individual is “convicted” of a criminal offense within the meaning of section 1128(i)
of the Act —

(1) when a judgment of conviction has been entered against the individual or
entity by a Federal, State, or local court... .

(2) when there has been a finding of guilt against the individual or entity by a
Federal, State, or local court; [or]

(3) when a plea of guilty or nolo contendere by the individual or entity has been
accepted by a Federal, State, or local court ....

Act, section 1128(i); 42 U.S.C. § 1320a-7(i).

42 C.F.R. § 1001.2007(a)(1)(i) grants an ALJ the authority to address whether a legal
basis for the imposition of an I.G. sanction exists.

Il. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Issues

Whether the I.G. is authorized to exclude Petitioner pursuant to section
1128(a)(1) of the Act; and,

Whether the five-year period of exclusion is reasonable.
B. Findings and Discussion

1. Petitioner was convicted within the meaning of section 1128(i) of the
Act.

An exclusion under section 1128(a)(1) of the Act requires a showing of two elements: (1)
that the individual or entity has been convicted of a criminal offense as defined in section
1128(i) of the Act; and (2) that the criminal offense be related to the delivery of an item
or service under title XVIII or under any state health care program. The I.G. bears the
burden of persuasion to prove, by a preponderance of the evidence, that both elements
have been met. 42 C.F.R. §§ 1005.15(b) and (d).

It is undisputed that, on March 19, 2007, Petitioner pled guilty to TennCare fraud and
forgery in the Criminal Court of Shelby County, Tennessee. I.G. Ex. 2, at 3. The Court
accepted Petitioner’s plea and sentenced him to three years probation for TennCare fraud
4

and one year probation for forgery, to be served concurrently. /d. at 2. Petitioner was
granted judicial diversion for the three years of probation and ordered to perform 200
hours of community service. Jd. Additionally, Petitioner was ordered to pay a $500 court
fine and $13,023 in restitution to TennCare. I.G. Ex. 2, at 1.

Under section 1128(i) of the Act, an individual is “convicted” when a guilty plea is
accepted by a Federal, State, or local court. Petitioner’s guilty plea was accepted by the
Criminal Court of Shelby County. I.G. Ex. 2. Further, Petitioner’s deferred adjudication
falls within the definition of “conviction” under section 1128(i)(4) of the Act. Therefore,
I find that Petitioner was convicted within the meaning of section 1128(i) of the Act.

2. Petitioner’s conviction was related to the delivery of an item or service
under a Medicare or State health care program.

The I.G. asserts, and I concur, that Petitioner’s conviction was related to the delivery of
service under a State health care program. TennCare is the state Medicaid program in
Tennessee. I.G. Br. at 2. Petitioner pled guilty to, and was convicted of, “unlawfully and
knowingly” obtaining medical assistance benefits to which he was not entitled, and
“unlawfully and knowingly” making a writing “with the intent to defraud the State of
Tennessee’s Division of Mental Retardation Services” and/or BSTN. IG. Ex. 4, at 4, 7.
Because Petitioner pled guilty to both TennCare fraud and forgery of TennCare
beneficiary records, his conviction clearly meets this second requirement.

3. Petitioner’s exclusion for a mandatory minimum period of five years is
reasonable as a matter of law.

An exclusion under section 1128(a)(1) of the Act must be for a minimum mandatory
period of five years, as set forth in section 1128(c)(3)(B) of the Act:

Subject to subparagraph (G), in the case of an exclusion under subsection
(a), the minimum period of exclusion shall be not less than five years... .

When the I.G. imposes an exclusion for the mandatory five-year period, the
reasonableness of the length of the exclusion is not an issue and therefore reasonable as a
matter of law. 42 C.F.R. § 1001.2007(a)(2). The I.G., the Secretary and I have no
authority to reduce the five-year minimum exclusion dictated by the Act.
IV. CONCLUSION

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded
from Medicare, Medicaid, and all federal health care programs, for a minimum mandatory
period of five years because of his conviction of a criminal offense related to the delivery
of an item or service under a State health program. | therefore sustain the I.G.’s exclusion
of Petitioner from program participation for the mandatory period of five years.

/s/
Alfonso J. Montano
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Decision No. CR1810
Centers for Medicare & Medicaid
Services.

In the Case of: )
)

Golden Living Center - North Little ) Date: June 26, 2008
Rock (CCN: 05-5337), )
)
Petitioner, )
)

-Vv.- ) Docket No. C-07-676

)
)
)
)

DECISION GRANTING MOTION
FOR SUMMARY JUDGMENT

grant the motion by the Centers for Medicare & Medicaid Services (CMS) to enter
summary judgment against Petitioner, Golden Living Center - North Little Rock a/k/a
Beverly Healthcare North Little Rock. I sustain remedies against Petitioner consisting of
civil money penalties of: $3,050 per day for each day of a period beginning on June 7,
2007 and ending June 8, 2007; and $300 per day for each day of a period beginning on
June 9, 2007 and ending July 3, 2007. The total amount of the civil money penalties that
sustain is $13,600.

I. Background

Petitioner is a skilled nursing center located near Little Rock, Arkansas. It participates in
the Medicare program. Its participation in Medicare is governed by sections 1819 and
866 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.

2

Petitioner was surveyed for compliance with Medicare participation requirements in a
survey that was completed on June 8, 2007 (June 8 survey) and was found not to be
complying in several respects. These included findings of noncompliance so egregious as
to pose immediate jeopardy for Petitioner’s residents. “Immediate jeopardy” is defined to
mean noncompliance that has caused or is likely to cause serious injury, harm,
impairment, or death to a resident. 42 C.F.R. § 488.301.

Petitioner filed a hearing request to challenge CMS’s determination to impose the
remedies that I describe in the opening paragraph of this decision. The case was assigned
to me for a hearing and a decision and I scheduled an in-person hearing. Prior to the
hearing CMS moved for summary judgment and Petitioner opposed the motion.

CMS filed a pre-hearing exchange which included 23 proposed exhibits. These are
designated as CMS Exhibit (Ex.) 1 - CMS Ex. 23. Petitioner filed 89 proposed exhibits
which are designated as Petitioner (P.) Ex. 1 - P. Ex. 89. I receive all of the proposed
exhibits into the record of this case and I cite to some of them from time to time in this
decision as may be appropriate. However, none of the material facts that I rely on in
deciding this case are disputed.

II. Issues, findings of fact and conclusions of law
A. Issues

The issues in this case are whether the undisputed material facts establish that:
1. Petitioner failed to comply substantially with a Medicare participation
requirement during the period beginning on June 7, 2007 and ending on
July 3, 2007;
2. CMS’s determination that Petitioner’s noncompliance during the part of
this period that included June 7 and 8, 2007 comprised immediate jeopardy

for Petitioner’s residents was clearly erroneous; and

3. CMS’s determination to impose civil money penalties against Petitioner
is reasonable.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this
case. I set forth each Finding below as a separate heading.
3

1. The undisputed material facts establish that Petitioner failed to comply
substantially with the requirements of 42 C.F.R. § 483.25(h)(2) between
June 7, 2007 and July 3, 2007.

The regulation that is at issue here mandates that a skilled nursing facility provide each of
its residents with adequate supervision and assistance devices to prevent accidents. 42
C.F.R. § 483.25(h)(2). A facility’s duty to its residents requires it to take all reasonable
measures to protect each of them.

The following facts are undisputed:

. Petitioner established a policy governing the use of mechanical lifts (lift
policy) for the physical transfer of residents who needed such devices for
assistance. CMS Ex. 16. The overall objective of this policy is to provide
appropriate, high-quality care for each of Petitioner’s residents and to
maintain a safe and enjoyable work environment for Petitioner’s employees.
CMS Ex. 16, at 4; P. Ex. 69, at 4.

. The lift policy provides explicitly that residents of Petitioner’s facility who
are identified as totally dependent on the staff for care or requiring
extensive assistance for care will be transferred by means of lift equipment
and/or other resident assistance devices instead of by manual lift. CMS Ex.
16, at 4; P. Ex. 69, at 4.

. The lift policy provides additionally that a resident’s transfers, mobility
assistance and other resident handling and movement tasks are to be carried
out in accord with that resident’s minimum data set (MDS) and care plan.
CMS Ex. 16, at 4; P. Ex. 69, at 5. Staff are enjoined not to deviate from the
resident’s MDS and care plan without contacting supervisory personnel.
CMS Ex. 16, at 4; P. Ex. 69, at 5. The lift policy reinforces this
requirement by instructing individual employees that:

Once the staff has been inserviced, the use of the lifts
on assessed residents becomes mandatory. The staff
should assist you in reporting changes of conditions,
which may necessitate a reevaluation of the resident
and the lift. However, the staff should clearly
understand that prior to changing a transfer
procedure on a resident, the supervisor must be
consulted.
4

CMS Ex. 16, at 4; P. Ex. 69, at 11 (emphasis added).

The lift policy also requires that supervisors will be responsible for ensuring
that resident handling tasks are assessed and completed safely, using
mechanical lifting devices and other appropriate resident handling aids and
appropriate techniques. CMS Ex. 16, at 4; P. Ex. 69, at 6.

Resident #6

A resident of Petitioner’s facility who is identified as Resident # 6 was, as
of June 2007, an 85-year old individual suffering from debilitating physical
and cognitive problems, including bilateral foot drop. CMS Ex. 10, at 1, 9,
28, 40. I take notice that a “foot drop” is an inability of an individual, for
neurological reasons, to control the position of his or her foot. The bilateral
foot drop affected both of the resident’s feet.

Petitioner’s staff assessed Resident # 6 as requiring extensive assistance and
as requiring a mechanical transfer with a device called a Marisa Lift when
Petitioner’s staff transferred her from her bed to a wheelchair. /d. at 10, 13,
23. “Safety” was given as the reason for this assessment. /d. at 10. The
resident’s care plans dated January and March 2007 also provided that the
resident be mechanically transferred. Jd. at 28, 30, 34.

The care plan noted that the resident was afraid of the mechanical lift
device, preferring that the staff transfer her manually, and the planned
intervention was for staff to encourage the resident to use the mechanical
lift. Id. at 34.

On May 18, 2007, Petitioner’s staff attempted to transfer Resident # 6 from
her bed to a wheelchair manually, without the assistance of a lift. Jd. at 54,
63-68; P. Ex. 57. Petitioner’s staff did not first consult with a supervisor

prior to attempting the manual transfer.

The resident sustained a broken right leg; Petitioner determined that during
the transfer the resident’s foot struck a bed rail. CMS Ex. 10, at 63.

5

Resident #7

. As of June 2007, a resident who is identified as Resident # 7 was an 87
year-old female who suffered from right side hemiplegia (paralysis on the
right side of her body) as the consequence of a stroke and blindness. CMS
Ex. 11, atl.

. The resident’s May 14, 2007 care plan required that the resident be
mechanically transferred from her bed with the assistance of two staff
members. /d. at 1, 4.

. However, and as is corroborated by admissions by members of Petitioner’s
staff and the observations of a State agency surveyor, Petitioner’s staff
usually transferred Resident # 7 with a mechanical device but with the
assistance of only one member of Petitioner’s staff. CMS Ex. 6, at 63.

The regulations governing hearings in cases involving CMS at 42 C.F.R. Part 498 do not
provide explicitly for the imposition of summary judgment. Administrative law judges
have applied the principles of Rule 56 of the Federal Rules of Civil Procedure to enter
summary judgment in those cases where there are no disputed issues of material fact and
where the only disputes between the parties are about legal issues.

The Departmental Appeals Board (Board) has found summary judgment to be appropriate
in cases involving a facility’s compliance with the requirements of 42 C.F.R.

§ 483.25(h)(2). Such cases include those where undisputed facts establish that the facility
has identified and planned for a risk, but not followed its own plan in attempting to
prevent accidents. Windsor Health Care Center, DAB No. 1902 (2003), aff'd, Windsor
Health Center v. Leavitt, 127 Fed. Appx. 843, 2005 WL 858069 (6th Cir. Apr. 13, 2005);
St. Catherine’s Care Center at Findlay, DAB No. 1964, at 13 (2005).

The undisputed facts of this case place it on all fours with those in which the Board and
federal appeals courts have found summary judgment to be appropriate. They establish
that Petitioner was not providing its residents with adequate supervision and assistance
devices to prevent accidents because its staff contravened facility policy and requirements
established for individual residents which directed the staff to use mechanical lifts in
order to protect the residents. Petitioner’s staff assessed both Residents #s 6 and 7 as
requiring transfers with the use of a mechanical lift. The residents’ debilitated states
required that they be transferred mechanically for their own protection and safety. Care
plans were developed for each resident that incorporated these conclusions. In the case of
Resident # 6, Petitioner’s staff failed to use the mechanical lift that it had been directed to
use. The failure of Petitioner’s staff to provide care to Resident # 6 consistent with the
6

resident’s assessment and care plan and Petitioner’s lift policy is in and of itself sufficient
to justify my conclusion that Petitioner failed to comply with the requirements of 42
C.F.R. § 483.25(h)(2).

In the case of Resident #7, Petitioner’s staff failed to transfer the resident in compliance
with a determination that the resident needed a two-person assist when transferred.
Petitioner’s staff violated Petitioner’s protocol in providing care to Resident # 6 and to
Resident # 7 by failing to consult with supervisors before contravening the residents’ care
plans and Petitioner’s lift policy.

Petitioner offers a series of arguments to counter CMS’s motion. I do not find them to be
persuasive. Petitioner contends that it would be unfair to issue summary judgment
against it premised on its noncompliance with a single Medicare participation requirement
when CMS alleged originally that there were four additional instances in which Petitioner
failed to comply with participation requirements. Petitioner’s response to CMS’s motion
for summary judgment (Petitioner’s response) at 2. But, there is nothing in either the Act
or implementing regulations that requires CMS to sustain each of its allegations of
noncompliance as a condition for it to impose a remedy against a participating facility.
CMS is authorized to impose a remedy against a facility so long as there are sufficient

findings of noncompliance to justify imposition of that remedy. As

Finding 3, the findings of noncompliance that I sustain in this decisi

support the civil money penalties that CMS determined to impose.

Next, Petitioner contends that the material facts of this case definite

Petitioner’s response at 5-18. But, in fact, Petitioner has not dispute
recite above and which I find to be material to this decision. It has r:

I discuss below, at
on are sufficient to

y are disputed.
d the facts that I
‘aised other fact

allegations which it contends are material and which it asserts create fact disputes. For

purpose of this decision, I accept each of Petitioner’s fact allegation:

does not change the outcome inasmuch as none of them are material.

sas true. But, that

Petitioner argues that CMS omits to state in its motion that its lift policy has a dual
purpose: (1) to protect residents; and (2) to protect members of Petitioner’s staff from

injuring themselves when they transfer residents. Petitioner’s respo

nse at 7-8. That may

be so. But, as Petitioner concedes, protection of residents is certain!
of the lift policy.

y a principal purpose

Moreover, Petitioner does not deny that protection of these residents from harm was a

reason for ordering that they be transferred mechanically or with a t
And, Petitioner has offered nothing to show that protection of Resi
not a major consideration in the staff's determination to require that

'wo-person assist.
ents #s 6 and 7 was
these residents be

transferred with mechanical lifts (and, in the case of Resident # 7, with a two-person
7

assist). Thus, even if protection of staff from injuries was a reason for the staff’s decision
to require that Residents #s 6 and 7 be transferred with mechanical lifts, Petitioner has
identified absolutely nothing to support a conclusion that protection of these residents was
not a major consideration as well.

According to Petitioner, its witnesses describe in their written direct testimony:

various circumstances where it may be clinically appropriate — or even
preferred — and perfectly safe, to transfer a particular resident from one
surface to another via a “physical assist” .. . even where an assessment or
care plan generally provides for use of a mechanical lift.

Petitioner’s response at 9. For purposes of this decision, I accept that this contention is
true. But, it is irrelevant here because, in the cases of Residents #s 6 and 7, Petitioner’s
staff specifically ordered that the residents be transferred mechanically (or, mechanically
with a two-person assist). Petitioner has not identified anything which would show that
Petitioner’s staff made a reasoned judgment prior to the June 8 survey to modify those
orders.

Petitioner argues that CMS’s allegations must be evaluated against the context that it is
impossible to eliminate entirely the risk of accident and injury inherent with a resident’s
transfer. Petitioner’s response at 10-11. I disagree. I accept as a premise that it may be
impossible for a nursing facility to eliminate every risk to a resident. But, that is not the
compliance standard that 42 C.F.R. § 483.25(h)(2) mandates, nor is elimination of every
risk the criterion I use to decide that Petitioner was noncompliant. The regulation
requires a facility to take all reasonable measures to address known or knowable risks that
a resident encounters. Here, the undisputed facts establish that Petitioner identified risks
to its residents related to the way in which they were transferred and it established
policies and care plans to address those risks. Petitioner is deficient not because it failed
to address risks that were impossible to eliminate but because it failed to carry out its own
plans to address risks which it knew it could minimize.

Petitioner also asserts that CMS has confused Petitioner’s annual “Lift/Mobility
Assessment” of each resident with sections of the comprehensive assessment and MDS
which Petitioner prepares for each resident. Petitioner’s response at 13. I see no such
confusion in CMS’s case against Petitioner. CMS is not relying on anything other than
the assessments that Petitioner’s staff made of each of the two residents whose care is at
issue. What is evident from the undisputed facts of this case is that Petitioner’s staff
concluded that these two residents needed mechanical transfers (and a two person assist
in the case of Resident # 7) for their own safety. Nothing that Petitioner asserts
contradicts those facts.
As an additional contention, Petitioner asserts that its staff members are trained to provide
safe transfers of residents, including what to do in the event that a resident slips, loses his
or her balance, becomes ill or agitated, or simply will not or cannot complete a transfer
safely. Petitioner’s response at 14. For purposes of this decision I assume this assertion
to be true. But, it begs the question of whether Petitioner’s staff followed prescribed
procedures and care plans in providing care to Residents #s 6 and 7.

In addressing the care given to Resident # 7, Petitioner seems to be arguing that,
notwithstanding the requirements in the resident’s plan of care, it was perfectly safe for
Petitioner’s staff to transfer the resident with the assistance of only one person.
Petitioner’s response at 16. However, the facts on which Petitioner relies all post-date the
point during the June 8 survey at which noncompliance was identified. See P. Ex. 64; P.
Ex. 68; P. Ex. 86. For example, Petitioner amended the resident’s care plan to provide for
one-person assistance during transfers only after the surveyors discovered that the staff
was violating the resident’s care plan requiring two-person transfers.

Prior to the survey, Petitioner’s staff were operating under the assumption that two-person
transfers of this resident were necessary to protect her. Failure by the staff to comply
with the directives in the resident’s care plan and with Petitioner’s policies is unrebutted
evidence that the staff was not carrying out facility directives designed to protect
residents. So, even if it may be determined from the vantage point of hindsight that this
resident could have been transferred safely with the assistance of only one staff member,
that conclusion says nothing about the Petitioner’s staff's disregard of instructions that
were designed to protect all of Petitioner’s residents. For that reason Petitioner’s
argument that the resident could have been transferred safely with the assistance of only
one staff member does not address the issue of its compliance.

Petitioner also alleges that Resident # 7’s care plan prior to the survey — which mandated
two-person assisted transfers — was unclear. Petitioner’s response at 16. I see no lack of
clarity in the care plan and no fact dispute as to what the care plan said. The precise
language of the plan read:

Use: two staff to assist getting OOB [out of bed].

CMS Ex. 11, at 1. That language is unequivocal and Petitioner has pointed to nothing
which suggests it to be unclear or subject to interpretation.

Petitioner suggests that there is a fact dispute as to whether Resident # 6 actually broke
her leg while being transferred. Petitioner’s response at 17. I am not persuaded that there
are facts which credibly support any explanation for the injury sustained by the resident
other than the facility’s conclusion that she struck her foot against her bed rail during the

9

transfer. But, for purposes of this decision I will assume that there is a genuine dispute as
to how the resident was injured. I find that it is unnecessary that I decide the cause of the
resident’s injury.

Certainly, concluding that an improper transfer of Resident # 6 caused her to sustain a
roken leg would be relevant to a finding that Petitioner was noncompliant. But, that
conclusion is not necessary to finding lack of compliance. Noncompliance is based on
Petitioner’s failure to carry out instructions in the resident’s care plan and to comply with
its own policy in a way that put the resident at risk for harm. The risk to the resident is
evident from Petitioner’s own assessment that the use of a mechanical lift was necessary
to protect her.

Petitioner asserts that Resident # 6’s care plan did not require the use of a mechanical lift
for transfer but merely recommended the use of that device. Petitioner’s response at 18.
But, Petitioner’s assertion notwithstanding, Petitioner’s staff had concluded about
Resident # 6 that:

She has bilateral foot drop and needs to be transferred to her w/c [wheel
chair] via mechanical lift.

CMS Ex. 10, at 21. There is nothing equivocal about that assessment. The statement
“needs to be transferred” is not a suggestion nor is it a recommendation. It is an
unadorned finding that transfer via a mechanical lift was necessary to protect the resident.
Petitioner’s lift policy mandates that a mechanical lift be used to transfer every resident
who is assessed as needing mechanical transfer. CMS Ex. 16, at 4; P. Ex. 69, at 4. So,
even if there were ambiguity in the resident’s care plan (and I do not find it to be
ambiguous) the staff's assessment of the resident coupled with the facility’s lift policy
would have mandated mechanical transfers.

Petitioner also argues that establishing noncompliance requires CMS to prove, prima
facie, that Petitioner not only failed to comply with facility policy and its residents’ care
plans but that the alternative means used by the staff to transfer Residents #s 6 and 7
(manual transfer in the case of Resident # 6, mechanical transfer but aided by only one
staff person in the case of Resident # 7) were, in and of themselves, dangerous to the
residents. But, that argument is answered by Petitioner’s own assessments of these
residents’ needs. Petitioner’s staff concluded that mechanical transfer (assisted by two
staff persons in the case of Resident # 7) was necessary to protect these residents. CMS
is not obligated to prove anything more than that.

10

CMS concluded that Petitioner’s noncompliance persisted through July 3, 2007.
Petitioner offered no facts or arguments in opposing CMS’s motion to establish that it
corrected its noncompliance prior to that date. Where noncompliance is established — as
is established here by undisputed material facts — it is presumed to continue until CMS
either determines that it has been abated or until the facility proves that it corrected the
noncompliance. Consequently, I sustain CMS’s determination as to duration.

2. CMS’s determination that Petitioner’s noncompliance on June 7 and
8, 2007 was at the immediate jeopardy level is sustained by the undisputed
material facts and is not clearly erroneous.

The undisputed material facts strongly support CMS’s determination of immediate
jeopardy level noncompliance on June 7 and 8, 2007. Petitioner’s staff determined that
mechanical transfer of Resident # 6 was necessary in order to protect her. The staff
concluded, in effect, that transferring the resident by another means would create
unacceptable risks of injury or harm to the resident. The staff’s failure to implement this
assessment, therefore, put the resident at an unacceptable risk of harm based on the staff’s
own judgment of the resident’s needs.

I do not premise my conclusion that Resident # 6 was placed in jeopardy by the staff’s
failure to transfer her mechanically on the injury she sustained when the staff transferred
her manually on May 18, 2007. The likelihood of harm resulting to the resident from a
manual transfer is established, in this case, by Petitioner’s staffs assessment that
mechanical transfer was necessary in order to protect her. Petitioner has offered no facts
to challenge this assessment. I am not concluding that finding that the staff injured the
resident by transferring her improperly is irrelevant. Rather, I conclude that it is
unnecessary for me to make such a finding in order to sustain CMS’s determination of an
immediate jeopardy level deficiency.

The staff's failure to comply with the care plan that it established for Resident # 7
provides added support for my conclusion that immediate jeopardy is established by the
undisputed material facts. For purposes of my decision | accept as true Petitioner’s
contention that the resident was, in fact, capable of being transferred with the assistance
of only one person. But, prior to June 8, 2007 the staff didn’t know that to be correct.
The staff planned its care of the resident based on an assessment that two-person transfers
were mandatory. The failure of the staff to implement that assessment, coupled with the
failure to carry out instructions to transfer Resident # 6 mechanically, shows that the staff
was indifferent to the assessments and plans that were developed to protect Petitioner’s
residents. That is certainly a contributing factor to the immediate jeopardy level
noncompliance that I find was present at Petitioner’s facility.
11

3. The undisputed material facts sustain CMS’s determination to impose
civil money penalties against Petitioner of $3,050 and $300 per day.

This case involves two civil money penalty determinations by CMS. The first, to impose
civil money penalties of $3,050 per day for the period of June 7 and 8, 2007, is intended
to remedy Petitioner’s immediate jeopardy level noncompliance. The second, to impose
civil money penalties of $300 per day for each day of a period that ran from June 9
through July 3, 2007, is intended to remedy Petitioner’s noncompliance during this period
at a level of scope and severity that is less than immediate jeopardy. I sustain both
determinations.

a. Penalties of $3,050 per day for June 7 and 8, 2007 are
reasonable as a matter of law.

Regulations governing civil money penalty amounts provide for two ranges of penalties.
Penalties for deficiencies that are at the immediate jeopardy level fall within a range of
between $3,050 and $10,000 per day. 42 C.F.R. § 488.438(a)(1)(i). The minimum daily
immediate jeopardy level penalty amount is $3,050 and that is what CMS imposed
against Petitioner for its two days of immediate jeopardy level noncompliance.
Consequently, that penalty amount is reasonable as a matter of law.

b. The undisputed material facts establish that penalties of $300
per day for each day of the period beginning on June 9, 2007 and
running through July 3, 2007 are reasonable.

The range of permissible civil money penalties for non-immediate jeopardy level
deficiencies is from $50 to $3,000 per day. 42 C.F.R. § 488.438(a)(1)(ii). There are
regulatory criteria for deciding what is reasonable within this range. The criteria include:
the seriousness of a facility’s noncompliance; its compliance history; its culpability; and
its financial condition. 42 C.F.R. §§ 488.438(f)(1)-(4); 488.404 (incorporated by
reference into 42 C.F.R. § 488.438(f)(3)).

Neither CMS nor Petitioner provided me with meaningful arguments as to whether a $300
daily civil money penalty is reasonable. CMS asserts merely that it considered the
regulatory criteria governing penalty amount in determining to impose penalties of $300
per day. But, my authority is not limited to an appellate review of CMS’s penalty
determinations. I am charged with deciding de novo whether a civil money penalty
amount is reasonable. Petitioner failed to address the issue of reasonableness in its
response to CMS’s motion.
12

However, the undisputed material facts of this case provide ample support for a penalty
amount of $300 per day. I find that the seriousness of Petitioner’s noncompliance is, in
and of itself, sufficient to justify the penalty amount. In fact, the penalty amount of $300
per day that CMS determined to impose is quite modest, comprising only ten percent of
the maximum allowable non-immediate jeopardy daily penalty amount.

Even after Petitioner abated immediate jeopardy on June 8, 2007 there still remained a
significant possibility that residents of Petitioner’s facility might experience harm as a
consequence of the staff’s evident inability to implement Petitioner’s lift policy and
findings in assessments and resident care plans. What is apparent from the way in which
the staff dealt with both Residents #s 6 and 7 is that the staff simply failed to comprehend
the importance of following established policies and care plans. Thus, the potential for
significant harm continued to exist at Petitioner’s facility until the staff became fully
proficient in carrying out facility policies and in implementing care plans.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In re CMS LCD Complaint: Date: June 25, 2008
Trailblazer Health Enterprise, LLC
Electrodiagnostic Studies (NCS/EMG). Docket No. C-08-143

Decision No. CR1809

DECISION DISMISSING REQUEST
FOR HEARING

I dismiss the hearing request filed by the aggrieved party. I do so because the Local
Coverage Determination (LCD) that he challenged has now been revised to cover the
claim for Medicare reimbursement that was the basis for his hearing request. I am
required to dismiss a hearing request challenging an LCD where a revision provides
coverage for a procedure that was previously not covered and where the aggrieved party’s
claim is now covered under the revised LCD. 42 C.F.R. § 426.420(e)(1).

The aggrieved party filed a hearing request pursuant to 42 C.F.R. Part 426 to challenge an
LCD made by Trailblazer Health Enterprises (Trailblazer). The procedure at issue
consists of the performance of a nerve conduction study (NCS) with an NC-stat system in
order to confirm the treating physician’s diagnosis of diabetic neuropathy. It is asserted
that coverage would be denied for the NCS using a device with fixed anatomic templates
when performed without a concomitant needle electromyography (EMG or needle-EMG).
See aggrieved party’s Complaint at 3. The aggrieved party’s treating physician states
that, based on the LCD in issue, other physicians in his region have been denied payment
for claims relating to NCS studies performed with the NC-stat system, and not the needle
electromyography. A. Ex. 2. The NC-stat system is comprised of the NC-stat monitor, a
stationary docking station used to download test data, disposable biosensors, and the
onCall information system which receives the test data and generates a hard copy report
deliverable by email or telefax. See aggrieved party’s Complaint at 5-6. The aggrieved
party concludes that the LCD is unreasonable in that it denies coverage for a medically
necessary service. Jd. at 1.
2

The aggrieved party’s case was assigned to me for a hearing and a decision. By
submission filed May 13, 2008, I received correspondence from Dr. Charles Haley, the
Medicare Medical Director, advising me that the LCD had been revised. The LCD was
revised to: 1) remove information related to non-coverage of tests performed with fixed
anatomic templates and computer generated reports; 2) remove references to limitations
in use of NCS without an accompanying EMG; and 3) remove the sentence referencing
Medicare review of the medical record in instances where more than 25% of NCS are
performed in the absence of concurrent electromyography. The Medicare Medical
Director further states that Medicare interprets the LCD provision regarding the “25%”
provision to mean:

... that the provider who determines that an EMG is not medically
necessary may proceed with the nerve conduction test without subjecting
the patient to a needle-EMG. Since the policy was issued, TrailBlazer has
routinely allowed nerve conduction testing when performed without
concomitant use of EMG.

Contractor’s Rebuttal (Rebuttal), dated May 9, 2008, at 1.

This case is governed by regulations that are at 42 C.F.R. Part 426. 42 C.F.R.

§§ 426.420(d) and (e) provide that, where a challenged LCD provision has been revised
by the contractor, a copy of the revised LCD must be forwarded to the ALJ by the
contractor, and the ALJ, if notice of the revision is received prior to the issuance of a
decision, “must dismiss the complaint and inform the aggrieved party(ies) who sought the
review that he or she or they receive individual claim review without the
retired/withdrawn provision(s).” Further, 42 C.F.R. § 426.460(b)(1)(iii), which is
incorporated by reference at 42 C.F.R. § 426.420(b), provides that “[i]f the aggrieved
party who sought the review has not yet submitted a claim, the contractor adjudicates the
claim without using the provision(s) of the LCD ....” Dr. Haley indicated that the
aggrieved party’s provider incorrectly interpreted the LCD provision at issue and did not
file a claim on behalf of the aggrieved party because the provider believed the claim
would be denied. Rebuttal at 1. Dr. Haley noted that, in fact, payments have been made
previously for NCS without use of a needle-EMG. Jd. However, Dr. Haley
acknowledged that the language of the provision could reasonably cause confusion, which
resulted in the determination to revise the LCD and related Article. Jd.
3

Based upon the revision of the LCD at issue in this case, the aggrieved party no longer
has a basis for review of the LCD. Therefore, pursuant to the regulations, I must dismiss
the complaint.

/s/
Alfonso J. Montano
Administrative Law Judge