Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Covington Manor Nursing Home
(CCN: 11-5588),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-13-933
Decision No. CR4706
Date: September 16, 2016
DECISION

Following a survey that ended April 5, 2013, the Georgia Department of Community
Health (survey agency) determined that Covington Manor Nursing Home (Covington or
Petitioner) was not in substantial compliance with the Medicare program participation
requirement that a skilled nursing facility (SNF) ensure an environment for residents that
is as free of accident hazards as is possible and ensure adequate supervision of residents.
42 C.F.R. § 483.25(h). Specifically, the survey agency determined that Covington’s
noncompliance began on September 20, 2012, and that from September 20, 2012,
through April 4, 2013, a total of 197 days, Covington’s noncompliance posed immediate
jeopardy to the health and safety of its residents because Petitioner did not provide its
residents with a safe smoking environment. The survey agency also found that
Covington’s noncompliance continued from April 5, 2013, but this noncompliance did
not pose immediate jeopardy. Based on a subsequent survey, the survey agency
determined that Petitioner returned to substantial compliance on April 26, 2013. The
Centers for Medicare & Medicaid Services (CMS) accepted the survey agency’s findings,
and imposed a $3,550 per-day civil money penalty (CMP) against Petitioner for the
period of immediate jeopardy level noncompliance, and a $100 per-day CMP for the
remaining period of noncompliance, for a total CMP of $701,450. Petitioner requested a
hearing before an administrative law judge (ALJ) challenging the immediate jeopardy

level noncompliance finding and the enforcement remedy based on that finding, but did
not challenge the CMP imposed from April 5, 2013, through April 26, 2013.

Based on the record, I conclude that Petitioner was not in substantial compliance with
Medicare participation requirements for the period the survey agency cited based on its
failures to properly assess the smoking ability of a resident and supervise that resident,
who accidently lit her clothes on fire while trying to light a cigarette, and to have a fire
extinguisher located within 75 feet of the facility’s designated smoking area. I also
conclude that Petitioner’s noncompliance posed immediate jeopardy to resident health
and safety on September 20, 2012, the date that the resident lit her clothes on fire,
through October 10, 2012, the date by which Covington implemented substantia!
improvements to its resident smoking procedures and Covington’s Quality Assurance
Committee assessed the effectiveness of those procedures. I further conclude that the
$3,550 per-day CMP that CMS imposed is reasonable for September 20, 2012, through
October 10, 2012. Finally, I conclude that Petitioner has come forward with evidence to
establish that CMS’s determination that Petitioner’s noncompliance posed immediate
jeopardy to resident health and safety from October 11, 2012, through April 4, 2013, was
clearly erroneous, and I reduce the CMP against Petitioner to $100 per day from October
11, 2012, through April 4, 2013. Therefore, including the $100 per-day CMP from April
5, 2013, through April 26, 2013, Petitioner is liable for a total CMP of $94,350.

I. Background

The Social Security Act (Act) sets forth requirements for a SNF’s participation in the
Medicare program and authorizes the Secretary of Health and Human Services (the
Secretary) to promulgate regulations implementing those statutory provisions. 42 U.S.C.
§ 1395i-3. The Secretary’s regulations are found at 42 C.F.R. Parts 483 and 488. To
participate in the Medicare program, an SNF must maintain substantial compliance with
program participation requirements. To be in substantial compliance, an SNF’s
deficiencies may “pose no greater risk to resident health or safety than the potential for
causing minimal harm.” 42 C.F.R. § 488.301. “Noncompliance” means “any deficiency
that causes a facility to not be in substantial compliance.” Jd.

The Secretary contracts with state agencies to conduct periodic surveys to determine
whether SNFs are in substantial compliance. 42 U.S.C. § 1395aa(a); 42 C.F.R. § 488.10.
The Act also authorizes the Secretary to impose enforcement remedies against SNFs that
are not in substantial compliance with the program participation requirements. 42 U.S.C.
§ 1395i-3(h)(2). The regulations specify the enforcement remedies that CMS may
impose. 42 C.F.R. § 488.406. Among other enforcement remedies, CMS may impose a
per-day CMP for the number of days an SNF is not in substantial compliance or a per-
instance CMP for each instance of the SNF’s noncompliance. 42 C.F.R. § 488.430(a).

A per-day CMP may range from either $50 to $3,000 per day for less serious
noncompliance, or $3,050 to $10,000 per day for more serious noncompliance that poses
immediate jeopardy to the health and safety of residents. 42 C.F.R. § 488.438(a). If
CMS imposes a CMP based on a noncompliance determination, then the facility may
request a hearing before an ALJ to challenge the noncompliance finding and enforcement
remedy. 42 U.S.C. §§ 1320a-7a(c)(2), 1395i(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g),
488.434(a)(2)(viii), 498.3(b)(13).

Immediate jeopardy exists when a facility’s noncompliance “has caused, or is likely to
cause, serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301.
An ALJ must affirm an “immediate jeopardy” determination unless Petitioner shows that
it is clearly erroneous. 42 C.F.R. § 498.60(c)(2). The “clearly erroneous” standard
imposes a heavy burden on SNFs and CMS may prevail where CMS presented evidence
“from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.” See
Barbourville Nursing Home, DAB No. 1962, at 11 (2005) (citing Florence Park Care
Ctr., DAB No. 1931, at 27-28 (2004). The regulation does not require that a resident
actually be harmed. See Lakeport Skilled Nursing Ctr., DAB No. 2435, at 8 (2012).

Covington is an SNF located in Covington, Georgia, that participates in the Medicare
program. Between April 1 and April 5, 2013, the state agency conducted a standard
survey of Petitioner’s facility. Petitioner Exhibit (P. Ex.) 5 at 4. While that survey was
ongoing, on April 3, 2013, surveyors notified Petitioner that it was not in substantial
compliance with federal regulations for long-term care facilities beginning September 20,
2012, and that the noncompliance posed ongoing immediate jeopardy to resident health
and safety since that time. The surveyor’s determination of immediate jeopardy focused
on a September 20, 2012 incident where a resident ignited her blouse while she tried to
light a cigarette, as well as certain resident smoking practices that had been ongoing since
September 20, 2012. See P. Ex. 5 at 15-22. Specifically, surveyors noted “the use of
unsafe ashtrays; lack of a fire extinguisher in close proximity of the smoke area; and
unsecured storage of smoking materials.” P. Ex. 5 at 15. These factors, according to
surveyors, “resulted in the likelihood of an immediate and serious threat to resident health
and safety for those six (6) residents” at the facility who smoked. P. Ex. 5 at 15.

From these findings, surveyors documented a violation of 42 C.F.R. § 483.25(h), which
requires that a facility ensure the resident environment remain as free from accident
hazards as possible and that each resident receives adequate supervision and assistive
devices to prevent accidents. The surveyors also determined that Covington abated
immediate jeopardy on April 5, 2013, by providing an acceptable corrective plan to
remove immediate jeopardy, although Covington continued to be noncompliant at a
lower level of noncompliance when surveyors ended the survey on April 5, 2013,
because “the effectiveness of these corrective plans could not be fully assessed to ensure
ongoing application and completion ....” P. Ex. 5 at 4. The surveyors also found that
Covington was not in compliance with seven other health and safety regulations (i.e., 42
CFR. §§ 483.13(a), 483.15(a), 483.15(h)(2), 483.20(k)(3)(i), 483.25(k), 483.35(i),
483.65), all of which were below the immediate jeopardy level. P. Ex. 5 at 5-15, 22-34.

In an April 23, 2013 initial determination, CMS stated that it was imposing enforcement
remedies on Covington based on the findings from the survey completed on April 5,
2013. CMS imposed a $3,550 per-day CMP from September 20, 2012, through April 4,
2013, and a $100 per-day CMP effective April 5, 2013, until Covington achieved
substantial compliance. P. Ex. 6.

The survey agency conducted a revisit of Covington’s facility and, CMS determined that
Covington achieved substantial compliance with Medicare program requirements as of
April 26, 2013. P. Ex. 8; CMS Ex. 24. Ina July 24, 2013 letter, CMS informed
Covington that the total CMP owed was $701,450, which was based on 197 days of
immediate jeopardy and 21 days of noncompliance at a level below immediate jeopardy.
P. Ex. 9.

Petitioner timely requested a hearing to dispute CMS’s finding that it was not in
substantial compliance with 42 C.F.R. § 483.25(h) and that its lack of compliance
resulted in immediate jeopardy. Petitioner did not appeal the other seven deficiencies
below the immediate jeopardy level. Following receipt of Petitioner’s hearing request, I
issued an Acknowledgment and Initial Prehearing Order. In that order, I directed the
parties to file briefs, proposed exhibits, and written direct testimony for all witnesses they
wanted to present in this case.

In compliance with my prehearing order, CMS filed a prehearing brief (CMS Br.) and 30
proposed exhibits (CMS Exs. 1-30). Petitioner then filed its prehearing brief (P. Br.)
along with 55 proposed exhibits (P. Exs. 1-55). Subsequently, Petitioner filed the written
direct testimony for a substitute witness, which I marked as P. Ex. 56. Hearing
Transcript (Tr.) at 7

CMS and Petitioner both requested to cross-examine witnesses. I held a video-hearing at
which Petitioner’s counsel cross-examined two of CMS’s witnesses (Cynthia Lane and
Anne Thomas) and CMS’s counsel cross-examined three of Petitioner’s witnesses (John
Kampmeyer, Thomas Peters, and Trisha Arroyo). See Tr. at 3. At the hearing, I admitted
CMS Exs. 1-27, 29-30 and P. Exs. 1-30, 37, 39, 40-53, 55-56. Tr. at 21-22, 25.
However, because one of Petitioner’s witnesses, Chris Wells, was not present to be cross-
examined, I later excluded P. Ex. 48, which was his written direct testimony. Tr. 14-15,
21, 25.

After the hearing CMS and Petitioner filed post hearing briefs (CMS Post Hearing Br.
and P. Post Hearing Br.), reply briefs (CMS Reply and P. Reply) and Sur-reply briefs
(CMS Sur-reply and P. Sur-reply).
II. Issues

The issues presented are:

1. Whether Petitioner was in substantial compliance with Medicare participation
requirements at 42 C.F.R. § 483.25(h) from September 20, 2012, through April
4, 2013;

2. If Petitioner was not in substantial compliance with Medicare program
requirements, whether CMS’s determination that immediate jeopardy existed
at the facility from September 20, 2012 through April 4, 2013, is clearly
erroneous; and

3. If Petitioner was not in substantial compliance with Medicare participation
requirements, is the CMP amount imposed on Petitioner reasonable.

Ill. Jurisdiction

I have jurisdiction to hear and decide this case. 42 U.S.C. §§ 1320a-7a(c)(2),
1395i(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

IV. Findings of Fact

1.

Prior to September 20, 2012, Covington had smoking policies and procedures that
called for assessing each resident who smoked to determine whether the resident
could “keep smoking supplies on their person” and smoke “‘out of doors”;
however, for “[r]esidents deemed incapable of smoking safely,” Covington
indicated it might counsel the residents, remove the residents’ smoking supplies to
be kept in the nursing medication room, supervise the residents while smoking,
and require the residents to use a smokers’ apron. P. Ex. 10 at 2; CMS Ex. 12 at 2.

Resident B, also referred to as Resident 41, is a female born on May 16, 1957,
who had previously had brain surgery and was diagnosed with Alzheimer’s
disease. CMS Ex. 14 at 1; CMS Ex. 18 at 4, 5.

. On July 18, 2012, a social worker at Covington assessed Resident B for smoking,

noting that Resident B had a Brief Interview for Mental Status (BIMS) score of 9,
but otherwise appeared able to independently smoke cigarettes. P. Ex. 17 at 10;
P. Ex. 45 at 2; CMS Ex. 18 at 4.

Although Resident B had previously quit smoking, on August 8, 2012, she started
to smoke again and, by August 15, 2012, was found to comply with the
requirement that she smoke on the front porch of the facility. CMS Ex. 18 at 5.
. On September 20, 2012, Resident B went to the facility’s front porch and, while
attempting to light a cigarette, put the lighter too close to her body, resulting in her
blouse catching fire. P. Ex. 17 at 9; P. Ex. 55 at 2; CMS Ex. 18 at 1, 6, 7.

. Resident B unsuccessfully attempted to extinguish the fire out by “slapping at it,”
and ultimately had to remove the blouse. CMS Ex. 18 at 6.

. Although other residents were present when Resident B lit her blouse on fire, no
Covington staff members were present. Tr. 130; CMS Ex. 18 at 6.

. Resident B stated that “I set myself on fire” and described her injures as being
burned from her “waist all the way up,” with burn scars resulting on “her left
chin/neck and left breast.”” CMS Ex. 18 at 1, 6; CMS Ex. 26 at 1; see also P. Ex.
55 at 2, 3.

. Resident B was sent to a hospital and then a burn center. P. Ex. 55 at 2-4; CMS.
Ex. 18 at 6.

10. Resident B received second degree burns. P. Ex. 17 at 9.

11. Following the incident with Resident B, on September 20-21, 2016, Covington

instituted several changes regarding smoking safety (Tr. at 44; P. Ex. 41 at 3).
Covington:

a. Issued a new smoking policy with the following provision (P. Ex. 10 at 1;
CMS Ex. 12 at 1; see also P. Ex. 41 at 4; P. Ex. 42 at 3-5; P. Ex. 43 at 2;
P. Ex. 45 at 3; P. Ex. 46 at 2-3; P. Ex. 49 at 2; see also Tr. at 51):
i. Residents may only smoke at seven set times during the day;
ii. A facility staff member will be present to monitor and assist
residents;

iii. Residents may only smoke on the facility’s front porch;

iv. Residents’ smoking materials are kept at the nurse station; and

v. Residents must wear a smoking apron when smoking;

b. Reassessed each of the residents who were smokers at the facility (Tr. at
50-51; P. Ex. 14; P. Ex. 45 at 4; P. Ex. 46 at 2); and

c. Posted signs informing guests that they could not give residents smoking
materials (Tr. 65; P. Ex. 43 at 4; P. Ex. 45 at 3; P. Ex. 46 at 3; P. Ex. 49 at
2).
12.On September 21, 2012, Covington initiated in-service training for staff on the
new smoking policy, and completed the training of all personnel on September 24,
2012. P. Ex. 20 at 1-3; P. Ex. 43 at 3; P. Ex. 45 at 2.

13. Resident B returned to Covington on September 25, 2016, but ceased smoking.
P. Ex. 55 at 4; see also P. Ex. 17 at 9.

14. On September 25, 2012, Covington conducted a new assessment for Resident B
and determined that she was not a safe smoker and that “[i]f she smokes she will
be observed by staff, cigarettes will be lit by staff and a smoking apron will be
provided.” P. Ex. 17 at 9.

15.On October 10, 2012, Covington’s Quality Assurance Committee considered all of
the steps Covington had taken with regard to smoking safety following Resident
B’s incident on September 20, 2012, and determined that it was in agreement with
the new policy and that it did not have any additional recommendations to make.
P. Ex. 23 at 1; P. Ex. 41 at 5; P. Ex. 45 at 5; P. Ex. 46 at 5-6; P. Ex. 50 at 2; see
also P. Ex. 49 at 3.

16. During the survey in April 2013, the front porch designated as Covington’s
smoking area had sprinklers (P. Ex. 43 at 3; P. Ex. 44 at 2; P. Ex. 46 at 2, 6; P. Ex.
47 at 5).

17. During the survey conducted in April 2013, the front porch was more than 75 feet
away from a fire extinguisher in the facility. Tr. 164-65, 232; P. Ex. 43 at 4; CMS
Ex. 29 at 3; CMS Ex. 30 at 3.

18. During the survey conducted in April 2013, Covington’s smoking area had a large
metal ash receptacle with a plastic liner. See Tr. 72-74.

19. The plastic liner used in the ash receptacle melted rather than ignited when in
contact with flames. Tr. 76-77, 186-87; P. Ex. 1; P. Ex. 40 at 4; P. Ex. 41 at 6;
P. Ex. 43 at 3; P. Ex. 45 at 6.

20. During the survey conducted in April 2013, Covington personnel would
extinguish cigarettes by placing the cigarettes into a cup of water. Tr. 66; P. Ex.
42 at 8; CMS Ex. 26 at 1.

21. During the survey conducted in April 2013, the residents’ smoking materials were
stored in an unlocked tackle box at the nurse’s station. Tr. 58-59, 158; P. Ex. 45 at
6; CMS Ex. 26 at 4; CMS Ex. 27 at 1.
22. Covington has not had any other incidents where residents have been burned while
smoking. P. Ex. 41 at 5; see also Tr. 128.

V. Conclusions of Law and Analysis
My conclusions of law are in italics and bold.

An SNF “must ensure that . . . the resident environment remains as free of accident
hazards as is possible” and “[e]ach resident receives adequate supervision .. . .”

42 C.F.R. § 483.25(h). In order for an SNF to be in substantial compliance with this
requirement, the SNF’s deficiencies may “pose no greater risk to resident health or safety
than the potential for causing minimal harm.” 42 C.F.R. § 488.301.

I. Covington was not in substantial compliance with 42 C.F.R. § 483.25(h) at
the immediate jeopardy level because Covington failed to provide an
environment as free as possible from accident hazards, and failed to provide
an adequate smoking assessment and supervision to Resident B while she
was lighting a cigarette, resulting in accidental burns.

The immediate jeopardy determination related to 42 C.F.R. § 483.25(h) rests initially
with the September 20, 2012 incident where Resident B lit her blouse on fire causing
injuries to her body. P. Ex. 5 at 16-17. As CMS made clear in its prehearing brief:

In this case, immediate jeopardy was determined to exist from
September 20, 2013 through April 4, 2013. On September
20, 2012, Resident B caught either a lit cigarette or a lighter
too close to her blouse, catching it afire. She required
hospitalization and has burn scars on the left side of her chin
and neck and on her left breast. There were several other
residents present, and they could have been injured.
Moreover, had the fire spread, residents who did not even
smoke (and staff and visitors) could have been injured. It is
unclear how the fire was contained, but when staff arrived,
the fire was no longer burning. That situation, along with
deviations from the [National Fire Protection Association’s]
requirements, constituted immediate jeopardy. . . . Even if
residents are assessed as safe smokers and they have
moderate or higher cognitive functioning, they still may not
be able to think or move fast enough to extinguish a fire
before they or others are severely injured. Indeed, Resident B
may have initially fanned the flames higher unintentionally
before she removed her burning blouse.

CMS Br. at 6-7 (citations omitted).

Section 483.25(h) does not provide instructions on how an SNF may ensure an
environment free from accident hazards, except to include a requirement that SNF’s
provide adequate supervision of residents. However, CMS issued an interpretive
guideline for section 483.25(h) in the State Operations Manual on the subject of smoking.
SNFs may permit residents to smoke, however; a facility’s assessment of a “resident’s
capabilities and deficits determines whether or not supervision is required.” State
Operations Manual, Appendix PP; CMS Ex. 6 at 7. Further, “[t]he facility must ensure
precautions are taken for resident’s individual safety . . . such precautions may include

. .. Supervising residents whose assessment and plans of care indicate a need for
supervised smoking .. . .” State Operations Manual, Appendix PP; CMS Ex. 6 at 8.

Covington assessed Resident B in July 2012 as a safe smoker who could smoke
independently. However, even though the social worker making the assessment noted
that Resident B had an Alzheimer’s disease diagnosis and a BIMS score of 9, she did not
believe this impeded her ability to smoke independently. P. Ex. 45 at 2; CMS Ex. 18 at
4. It is significant that the BIMS score relates to an “‘individual’s attention, orientation
and ability to register and recall information” and that a score of 9 means that Resident B
was at the low end of being “moderately impaired” (i.e., a score of 7 is “severe
impairment”). CMS Ex. 22 at 2,5. As indicated above, Resident B lit her blouse on fire,
injuring herself, while attempting to light a cigarette without supervision from staff.

Most of Covington’s witnesses registered disbelief that Resident B accidently lit her
blouse on fire while trying to light a cigarette since Covington had assessed her as a safe
smoker. P. Ex. 41 at 2 (“Still, somehow, her blouse ignited and she suffered a burn
requiring treatment.”); P. Ex. 42 at 2; P. Ex. 43 at 2 (“The fact she suffered this incident
was unfortunate.”); P. Ex. 45 at 2 (“The incident that occurred on September 20, 2012
was very unfortunate and truly an aberration.”); P. Ex. 46 at 2; P. Ex. 49 at 1 (“In my
opinion, she was a safe smoker that had [an] unfortunate accident.”). However, when
Resident B returned to Covington after being away for five days at a burn center,
Covington immediately assessed her as follows: “She is unsafe [at] smoking and will not
be allowed to keep lighter, matches, or cigarettes in room or on self.” P. Ex. 17 at 9. Had
Covington truly believed that it had correctly assessed Resident B initially as a smoker
who could independently smoke and that the September 20, 2012 incident was purely an
accident, Covington would not have radically reassessed Resident B’s smoking abilities.

10

In fact, Resident B was not the only one who Covington reassessed as no longer being
able to smoke independently. Resident 7 had been assessed as a safe smoker who could
independently smoke for years, including as late as September 6, 2012; however, on
September 20, 2012, he was reassessed and determined not to be an independent smoker.
P. Ex. 14 at 14-19; P. Ex. 17 at 7-8. Further, Resident B.T. was assessed as a safe smoker
on June 6, 2012, but determined not to be one on September 20, 2012. P. Ex. 17 at 2-3.
These new assessments call into question the efficacy of Covington’s previous
assessments.

On November 10, 2011, CMS issued an alert to state survey agencies concerning
smoking safety. In that document, CMS stated that it had learned of a resident of a long
term care facility who had been assessed to smoke unsupervised, but who accidently
ignited her clothes and died of those injuries. CMS Ex. 5 at 1. When discussing
assessments for smoking ability, CMS counseled that “[fJacilities should err on the side
of caution and provide staff, family or volunteer supervision when unsure of whether or
not the resident is safe to smoke unsupervised.” CMS Ex. 5 at 2.

In the present case, Covington failed to properly assess Resident B and, consequently,
failed to supervise her while smoking. This lead to an environment that was far from free
of accident hazards. In fact, Resident B was injured. Therefore, based on the September
20, 2012 incident involving Resident B, I conclude that Covington was not in substantial
compliance with section 483.25(h) as of September 20, 2012. Further, I conclude that
CMS’s determination that Covington’s noncompliance was at the immediate jeopardy
level is not clearly erroneous. See 42 C.F.R. § 498.60(c)(2).

2. Covington was not in substantial compliance with 42 C.F.R. § 483.25(h)
because it failed to have a fire extinguisher located no more than 75 feet
from Covington’s designated smoking area; however, it was clearly
erroneous for CMS to conclude that this deficiency was at the immediate
Jeopardy level.

The deficiency related to section 483.25(h) rests in part on the survey agency’s findings
related to fire extinguishers. During the survey, a surveyor, questioning a certified
nursing assistant who was supervising residents who were smoking, was unable to locate
a fire extinguisher near the designated smoking area. P. Ex. 5 at 18. Later in the survey,
a surveyor and a Covington employee measured the distances from the designated
smoking area to the fire extinguishers at the facility and determined that they were all
more than 75 feet away. P. Ex. 5 at 19.

Petitioner asserts in response that CMS’s determination is in error because: the certified
nursing assistant told the surveyor that if a resident were on fire, she would smother the
fire and would not use a fire extinguisher; fire extinguishers are not supposed to be used
on people; and Covington’s designated smoking area is free of flammable or hazardous
11

materials. P. Post Hearing Brief at 1-4. From this, Petitioner concludes that the distance
between the designated smoking area and the closest fire extinguished is irrelevant.
P. Post Hearing Br. at 4-6.

CMS contests that Petitioner’s designated smoking area does not have flammable
materials present, and asserts in particular that Petitioner’s designated smoking area does
not have a concrete floor. CMS Sur-reply at 5-6. CMS avers that one of Petitioner’s
employees was unable to locate a fire extinguisher when asked by a surveyor and that
Petitioner did not identify what staff would use to smother a fire. Finally, CMS argues
that “most importantly, it remains undisputed that Petitioner did not meet an explicit
requirement to have fire extinguishers within 75 feet of the smoking area.” CMS Sur-
reply at 6.

Section 5.1.4 of the National Fire Protection Association’s (NFPA) Life Safety Code
requires the maximum travel distance to a fire extinguisher be 75 feet. CMS Ex. 7 at 4.
SNFs must comply with NFPA’s Life Safety Code. 42 C.F.R. § 483.70(a). Further,
meeting the NFPA’s fire extinguisher requirement is part of ensuring that a smoking area
is safe. See CMS Ex. 5 at 2.

There is no dispute in this case that during the survey conducted in April 2013, the front
porch (i.e., the designated smoking area) was more than 75 feet away from a fire
extinguisher in the facility. Tr. 164-65, 232; P. Ex. 43 at 4; CMS Ex. 29 at 3; CMS Ex.
30 at 3. As discussed below, while a fire extinguisher is not preferred as a method of
extinguishing a person who is on fire, it nevertheless is extremely important to stop the
spread of fire on other combustible materials. As Petitioner’s fire safety expert testified:

Q_ -- please just bear with me there. Okay. So
then, if -- so would you say, then, what is the
purpose of the NFPA regulation requiring fire
extinguishers to be every 75 feet? Is it -- what
would you say that? Let me leave it open-ended like
that.

A_ Typically, it’s there so that someone seeing a
fire in material laying on a floor, in a can,
whatever, can run to get that fire extinguisher and
train it on the fire, within a reasonable length of
time before it would become deep seated.

Tr. 184. As can be seen by the incident involving Resident B, smoking or attempting to
smoke can result in fire. Resident B’s blouse went on fire and Resident B, unable to
extinguish it with her hands, removed the blouse still aflame. Assuming that the front
patio of Petitioner’s facility has concrete flooring (a matter CMS disputes because
Petitioner’s pictures of the front porch appear to show wood planks and not concrete), the
pictures of the smoking area show other combustibles, such as wooden rocking chairs and
12

abench. P. Ex. 25 at 7; see also Tr. 122. Therefore, I conclude that Petitioner’s failure
to comply with the NFPA’s standard for fire extinguishers, especially in connection with
an area designated for lighting and smoking cigarettes, could result in more than minimal
harm to residents and thus placed Petitioner out of substantial compliance with 42 C.F.R.
§ 483.25(h).

Although I conclude that Petitioner failed to have a fire extinguisher within 75 feet of the
designated smoking area, I also conclude that CMS’s determination that this deficiency
resulted in immediate jeopardy is clearly erroneous. “Immediate jeopardy” exists when
“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. In the present case, Petitioner’s conduct is not likely to cause
serious injury, harm, impairment, or death.

As Petitioner’s fire safety expert witnesses make clear, a fire extinguisher is not used on
people if they are on fire because it may injure them. Tr. 180, 209-210. Individuals on
fire should stop, drop, and roll, if able, or if another individual is assisting, that individual
could smother the fire with a lab coat, smoker’s apron, or jacket. Tr. 181-83, 211; P. Ex.
40 at 5. Therefore, Petitioner’s failure to have a fire extinguisher within 75 feet of the
designated smoking area would not have affected the possible harm or death that could
result if a resident were on fire, as Resident B had been on fire. To the extent that
Petitioner’s deficient conduct resulted in reduced firefighting capability concerning fires
of combustible objects, the record shows that the designated smoking area had a sprinkler
system that could suppress fire. (P. Ex. 43 at 3; P. Ex. 44 at 4; P. Ex. 46 at 2, 6; P. Ex. 47
at 5). This sprinkler does not absolve Petitioner from meeting NFPA standards for fire
extinguishers, but it does significantly reduce the potential for harm regarding
combustible objects in the designated smoking area.

Therefore, I conclude that Petitioner was out of substantial compliance with 42 C.F.R.

§ 483.25(h) based on its failure to properly locate a fire extinguisher within 75 feet of the
designated smoking area, but that it is clearly erroneous to determine that this deficiency
placed residents in immediate jeopardy.

3. Covington’s ashtrays do not support a determination that Covington was not
in substantial compliance with 42 C.F.R. § 483.25(h).

CMS contends that Covington had an unsafe resident environment because it
extinguished cigarettes in cups of water and placed a plastic liner in its ash trays located
in the designated smoking area. Section 19.7.4 of NFPA’s Life Safety Code requires that
ashtrays be made of noncombustible materials. CMS Ex. 7 at 3; see also CMS Ex. 5 at 2.

As a preliminary matter, although the Statement of Deficiencies prepared by the survey
team may have indicated that Petitioner was unsafe for extinguishing cigarettes in cups of
13

water, the survey team members did not indicate so during testimony. Tr. 71, 157.
Following the September 20, 2012 incident with Resident B, Covington heavily regulated
resident smoking, which included staff supervision of all smoking by residents. The use
of a cup of water to extinguish cigarettes was supervised by staff and meant to ensure
safety. See P. Ex. 42 at 8; P. Ex. 45 at 6. I conclude that such a practice does not
constitute a failure to be in substantial compliance with 42 C.F.R. § 483.25(h).

Further, the survey team thought that Petitioner’s ash trays were safe, except for the fact
that Petitioner added plastic liners to the ash receptacle. Tr. 74. However, the survey
team appears to have assumed that the liners in the ash receptacles were flammable,
rather than determining the liners were flammable. Tr. 72 (“I don’t know that [the plastic
liners] were flammable.”); Tr. 158-160. In fact, the survey team did not know what type
of plastic liner was being used in the ash receptacles during the survey. Tr. 77, 113-114.

I conclude that Petitioner has presented sufficient evidence that the liners in the ash
receptacle would not burn, but rather would melt. Petitioner submitted a video
demonstration of a liner melting on contact with a flame. P. Ex. 1; see also Tr. 76
(surveyor acknowledging that the video showed a liner that “did not appear to be
flammable.”). Although this video and associated documentation (P. Ex. 2) about the
type of liner Petitioner used appeared to lack authentication during the hearing, based on
my review of the testimony in this case, there is sufficient reason to conclude that the
video and associated documentation is reliable evidence.

One of Petitioner’s witnesses expressly identified Covington’s now former operator,
Ronny Crump, and its now former Administrator, C.L. Johnson, as the individuals who
made the video. P. Ex. 43 at 3. Mr. Crump testified that Petitioner had “video evidence
that the ashtrays are not a fire hazard. The video evidence demonstrates that the ashtrays
do not support combustion at all.” P. Ex. 41 at 6. Further, he testified that “the video
demonstrates that, contrary to the surveyor’s conclusion, the plastic liner they cite as a
basis for immediate jeopardy is not combustible. It cannot support a flame, let along
cause a fire.” P. Ex. 41 at 8. CMS had the opportunity to cross-examine Mr. Crump
regarding the video or the type of plastic liner used by Covington, but decided not to do
so. Tr. 251. While Petitioner ought to have submitted testimony that clearly
authenticated the video and other evidence regarding the plastic liners used by
Covington, I have no reason to conclude that Petitioner’s video is not what Petitioner
purports it to be.

Based on the information provided from Petitioner, Petitioner’s fire safety expert, John
Kampmeyer, testified that the plastic liners, being made of high density polyethylene,
represented only a slight or minimal risk of being a fire hazard. P. Ex. 40 at 4. Mr.
Kampmeyer concluded that “[t]he portion of the plastic liner tha[t] extended several
inches from the bottom of the top metal portion of the ashtray did not represent a risk of a
hazard and was not likely to cause or contribute to a fire.” P. Ex. 40 at 4. I give weight
14

to the opinion of Mr. Kampmeyer because he has had 52 years of experience in the field
of fire protection and mechanical engineering, has been affiliated with/served on NFPA
committees for 38 years, and testified without evasion. Tr. 195; P. Ex. 40 at 1, 8-11.

One of the surveyors also took the position that even if the liner was not combustible, the
melting plastic liner could still burn a resident. Tr. 155. However, Mr. Kampmeyer gave
testimony refuting this potential:

Q_ -- Okay. And do you know how that would affect the
surrounding areas of that bag? Specifically, okay,

the flame, touched to that particular area of the bag,
the bag would be hot to the touch, wouldn't it?

A Yes, but it was very -- in other words, what will
happen with high-density polyethylene is it will begin
to contract as you do -- it melts at a temperature of
something in the order of 450 degrees. It in and of
itself has no ignition temperature, according to the
MSDS sheet. So therefore, it will simply melt when
you heat -- put a flame to it, as was done in the video.
So the video is very typical of the way high-density
polyethylene reacts.

Q_ -- Okay. And would the area -- the metal area around
that bag, while it's melting, would that get any hotter?
A There would be a rise in temperature, but nothing
significant, mainly because there's no -- very little
mass to that polyethylene. You know, I mean, any time
you have some -- a source of heat near it, probably
there would be more heat transmitted from the torch
that the gentleman was using than there would be from
the burning plastic, simply because it was essentially
no mass to the plastic.

Tr. 186-187.

I accept Mr. Kampmeyer’s expert opinion that there was minimal risk using the plastic
liners and that there would be no significant rise in temperature of the metal touching a
melting plastic liner. Therefore, I conclude that Covington’s ash receptacle liners do not
serve to support that it was not in substantial compliance with 42 C.F.R. § 483.25(h).

4. Covington’s placement of smoking materials in an unlocked box at the
nurse’s station does not support a determination that Covington was not in
substantial compliance with 42 C.F.R. § 483.25(h).
15

The surveyors observed that Covington collected all of the smoking materials from the
residents and kept them in a container at the nurse’s station. P. Ex. 5 at 17. During their
time at the Covington, surveyors noted that the unlocked container holding the smoking
materials was often on the floor just inside the nurse’s station and that the nurse’s station
did not have any secured entrances to it. P. Ex. 5 at 19, 20; CMS Ex. 26 at 4-5. One of
the members of the survey team thought that Covington’s previous policy of locking
residents’ smoking materials in the facility’s medication room was “stronger” than the
new policy of keeping the smoking materials at the nurse’s station. Tr. at 48; see also Tr.
49 (“Other than where the smoking materials were stored, I didn’t have any other
concerns.”’)

Covington collected the smoking materials of all of the residents and placed them in a
tackle box, and placed the tackle box at the nurses’ station. P. Ex. 41 at 4; P. Ex. 42 at 5;
P. Ex. 43 at 2. The survey team did not observe any residents try to take smoking
materials from the box at the nurse’s station, and did not ask Covington staff if that had
happened in the past. Tr. 100. The survey team indicated that no rule required that the
box be locked, but that it must be inaccessible. Tr. at 108. Indeed, CMS indicates that a
precaution that a facility may take regarding smoking is “limiting accessibility of matches
and lighters by residents who need supervision when smoking.” State Operations
Manual, Appendix PP; CMS Ex. 6 at 8.

As Petitioner pointed out during cross-examination, and the state surveyor agreed, after
September 20, 2012, Covington took smoking materials away from all residents, even
assessed safe smokers, and that this exceeded the standard of care. Tr. at 108-09.
Petitioner’s witnesses all testified that the box with the smoking materials was safe.

Mr. Crump testified to the following:

The surveyors stated a resident could sneak behind the
nurses’ station and retrieve these materials. I disagree. All
residents voluntarily complied with new restrictions. In 30
years, I have never seen or heard of [a] time when a resident
sneaked behind the nurses’ station at Covington Manor.
Based on those 30 years of experience at Covington Manor,
my personal knowledge of the residents and _ their
demonstrated compliance with the stringent safe smoking
guidelines, it was not likely any resident would sneak behind
the nurses’ station to get cigarettes. The latched box kept
behind the nurse’s station that contained the smoking
materials was “secure.”

P. Ex. 41 at 4. Mr. Johnson testified:
16

We required the tackle box with a latch to be kept behind the
nurses’ station. We had no reason to believe that was not a
safe area or that any of the residents who were smokers would
attempt to go to the tackle box. I am personally aware of the
residents who were assessed as safe smokers. I knew them all
very well. And, I also know that they were compliant and
obeyed our enhanced smoking policies and requirements.

P. Ex. 42 at 5. Linda Portfield, Covington’s former Director of Nursing, testified: “I have
never in the 18 years I worked at Covington Manor seen a resident go behind the nurses’
station, unless brought there by a nurse. Based on almost two decades of experience at
Covington Manor, I disagree with the surveyor’s statement that the smoking materials
were not secure.” P. Ex. 43 at 2; see also P. Ex. 44 at 5; P. Ex. 45 at 6.

A surveyor agreed during cross-examination that she had no reason to disbelieve
Covington personnel who said that none of the residents had tried to remove the box with
smoking materials from the nurse’s station. Tr. 147-148. Mr. Kampmeyer, one of
Petitioner’s fire safety experts, opined that Petitioner’s method of storing the smoking
supplies was secure, and pointed to the fact that Covington did not experience any
attempts by residents to improperly take smoking supplies from the tackle box. P. Ex. 40
at 6-7.

I conclude, based on the record, that Petitioner’s placement of smoking supplies in a
tackle box and storing that box at the nurse’s station was sufficient to render the smoking
materials inaccessible to residents, and, therefore, not a basis to conclude that Petitioner
was not in substantial compliance with 42 C.F.R. § 483.25(h).

5. Covington was not in substantial compliance with Medicare program
requirements from September 20, 2012, through April 26, 2013; however,
Covington’s noncompliance was at the immediate jeopardy level only from
September 20, 2012, through October 10, 2012, the date on which Covington
had implemented all of its changes to its smoking safety policy and
Covington’s Quality Assessment Committee had time to assess their
effectiveness.

The survey agency and CMS determined that Petitioner’s deficient conduct commenced
on September 20, 2012, due to the accident in which Resident B lit her clothes on fire
while trying to light a cigarette and continued until April 2013, when Petitioner corrected
three practices that were determined to be unsafe: lack of a fire extinguisher in close
proximity to the smoking area; unsafe ashtrays; and the unsecured storage of smoking
materials. P. Ex. 5 at 15-22; P. Ex. 8. Based on the record in this case, I concluded that
Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h) because it failed
to provide an adequate smoking assessment and supervision to Resident B to ensure that
17

she did not accidently injure herself while lighting a cigarette and failed to meet
maximum safe distance requirement to obtain a fire extinguisher in the Life Safety Code
of the National Fire Protection Association (NFPA). Further, Petitioner did not appeal
various other deficiencies for which CMS determined Petitioner returned to compliance
on April 26, 2013.

As indicated above, CMS’s determination that Petitioner’s actions related to Resident B
caused immediate jeopardy, starting on September 20, 2012, was not clearly erroneous.
However, I concluded that CMS’s determination that Petitioner placed residents in
immediate jeopardy until April 4, 2013, was clearly erroneous. Therefore, I modify
CMS’s determination and conclude that Petitioner placed residents in immediate jeopardy
from September 20, 2012, until October 10, 2012, the date by which Petitioner had
implemented all of its changes to its smoking procedures and Petitioner’s Quality
Assurance Committee reviewed and approved the effectiveness of those changes.
However, because I concluded that Petitioner was not in substantial compliance
concerning the position of its fire extinguishers, and that that deficiency was not
remedied until April 4, 2013, I conclude that Petitioner was not in substantial compliance
with Medicare program requirements below the immediate jeopardy level from October
10, 2012, through April 4, 2013.

My choice of October 10, 2012, as the final day of immediate jeopardy is based on the
significant actions Petitioner took in response to Resident B’s incident (see Findings of
Fact 11 through 15 above). Further, Mr. Kampmeyer, the fire safety expert, assessed the
changes Petitioner made after September 20, 2012, and he called them “significant steps
. .. to tighten up procedures to prevent further accidents.” He also concluded:

Because of the appropriate measures instituted by the facility
as of September 20, 2012, I do not believe that there was a
risk of any resident suffering serious harm in the very near
future as a result of the smoking environment. To the
contrary, it is my expert opinion that when considering all of
the measures and interventions undertaken by the staff, it was
unlikely any resident would be harmed... .

P. Ex. 40 at 7. Petitioner’s other fire safety expert also stated that the changes Petitioner
instituted would make another incident like the one Resident B suffered very unlikely.
Tr. 224-25.

Therefore, Petitioner is subject to civil money penalties for 21 days of immediate
jeopardy and 188 days of substantial noncompliance below the immediate jeopardy level.
18

6. CMS’s determination of the amount of CMP per day is reasonable.

In determining whether the per day CMP amounts imposed against Petitioner are
reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f). 42 C.F.R.

§ 488.438(e)(3). These factors include: (1) the facility’s history of compliance; (2) the
facility’s financial condition; (3) the factors specified at 42 C.F.R. § 488.404; and (4) the
facility’s degree of culpability, which includes neglect, indifference, or disregard for
resident care, comfort, or safety. The absence of culpability is not a mitigating factor.
The factors at 42 C.F.R. § 488.404 include: (1) the scope and severity of the deficiency;
(2) the relationship of the deficiency to other deficiencies resulting in noncompliance;
and (3) the facility’s prior history of noncompliance in general and specifically with
reference to the cited deficiencies. Unless a facility contends that a particular regulatory
factor does not support the CMP amount, the ALJ must sustain it. Coquina Ctr., DAB
No. 1860, at 32 (2002).

In the present case, CMS imposed a CMP of $3,550 per day for Petitioner’s
noncompliance at the immediate jeopardy level and $100 per day for its noncompliance
at below the immediate jeopardy level. P. Ex. 6. The total CMP imposed was $701,450.

CMS urges me to accept the per day amount imposed for the immediate jeopardy level
deficiencies because that amount is only $500 more than minimum required under
regulations. CMS Br. at 8; CMS Post Hearing Br. at 12; CMS Reply 9-10. CMS also
points out that the $100 per-day CMP for the deficiencies below the immediate jeopardy
level is only $50 above the minimum permissible amount, although CMS indicates that it
might want to have the opportunity to raise this amount should I not conclude that
immediate jeopardy existed from September 20, 2012, through April 4, 2013. CMS Br.
at 8 n.6; CMS Reply Br. at 10 n.7. Petitioner only urges me not to impose any CMP, but
otherwise did not set forth any argument as to what amount I should set if I upheld any of
the deficiencies. P. Post Hearing Br. at 19; P. Reply Br. at 16-17; P. Sur-reply at 11.

To the extent that CMS seeks remand of this case to reevaluate the CMP amount in this
case, I deny that request. Remand is not necessary because I have authority to review the
penalty amount as long as I apply criteria from the regulations, do not review CMS’s
discretionary decision to impose a CMP, and do not reduce the penalty to zero. 42 C.F.R.
§ 488.438 (e).

After considering the factors in the regulations, I conclude that the per day CMP amounts
imposed by CMS are reasonable.

Petitioner has a history of noncompliance related to smoking and fire safety issues;
however, they comprise only four ““D” level deficiencies (i.e., the lowest level of
noncompliance) from 2009. CMS Ex. 23 at 1-2.
19

In regard to consideration of Petitioner’s financial condition, I cannot conclude that this is
a reason to reduce the penalty amount in this case because the record does not contain
any information showing Petitioner’s financial condition.

I consider Petitioner to be culpable regarding the incident of Resident B. As indicated
above, Petitioner permitted a resident with Alzheimer’s disease and a BIMS score
showing a moderate degree of impairment to independently smoke, resulting in physical
arm to the resident.

In regard to the scope and severity of the deficiency, as indicated above, I agree that CMS
properly determined that Petitioner’s deficiency was at the immediate jeopardy level;
owever, I determined that not all of the deficiencies cited concerning the immediate
jeopardy existed or were at the immediate jeopardy level. As a result, I concluded that
Petitioner was able to abate the immediate jeopardy earlier than CMS determined.
However, I upheld the total amount of time Petitioner was noncompliant with Medicare
program requirements, just at a level below the immediate jeopardy level.

Based on the factors above, I conclude that a $3,550 per-day CMP during the immediate
jeopardy period is reasonable and a $100 per-day CMP is reasonable for the period below
the immediate jeopardy level. The $3,550 amount is in the lower range for immediate
jeopardy matters (i.e., per-day CMPs for immediate jeopardy can be from $3,050 to
$10,000). 42 C.F.R. § 488.438(a)(1)(i). The $100 per-day amount is only $50 more than
minimum amount that the regulation requires to be imposed. 42 C.F.R.

§ 488.438(a)(1)(ii).

VI. Conclusion

I conclude that Petitioner was not in substantial compliance with Medicare program
requirements from September 20, 2012, through April 26, 2013, and that Petitioner’s
noncompliance was at the immediate jeopardy level from September 20, 2012, through
October 10, 2012, and owes a CMP of $3,550 per day for each day of noncompliance at
the immediate jeopardy level and a CMP of $100 per day for each day of noncompliance
at a level below the immediate jeopardy level. Therefore, Petitioner is liable for a total
CMP of $94,350.

/s/
Scott Anderson
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Heartland Health Care Center — Kendall,
(CCN: 10-5641),

Petitioner
v.
Centers for Medicare & Medicaid Services.
Docket No. C-16-62
Decision No. CR4704

Date: September 15, 2016

DECISION

Petitioner, Heartland Healthcare Center — Kendall (Petitioner or “the facility”), is a
skilled nursing facility that participates in the Medicare program. Based on a complaint
investigation survey that was completed on July 22, 2015, the Centers for Medicare &
Medicaid Services (CMS) determined that Petitioner was not in substantial compliance
with Medicare participation requirements. CMS imposed against Petitioner a civil money
penalty (CMP) of $250 per day, effective June 17, 2015, through August 21, 2015, fora
total CMP of $16,500.

Petitioner contests two deficiencies cited at the scope and severity level “G,” which
indicates an isolated instance of noncompliance that involves actual harm that does not
amount to immediate jeopardy to resident health or safety.

For the reasons set forth below, I sustain CMS’s citation of two deficiencies relating to
the care of Resident # 3 that involved the facility’s failure to revise her care plan in a
timely manner with appropriate interventions and the facility’s failure to provide the
necessary care and services to maintain her physical well-being following her two falls in
the facility in June 2015. However, with respect to a cited deficiency involving Resident
#2, who was struck by a vehicle on a facility roadway while being pushed in a
wheelchair by a family member, I conclude that Petitioner did not fail to take reasonable
measures as cited in the deficiency because the resident’s accident was not foreseeable.

I find the penalty imposed, a $16,500 CMP, is reasonable.
I. Background

The Social Security Act (Act) sets requirements for skilled nursing facility (SNF)
participation in the Medicare program. The Act authorizes the Secretary of the United
States Department of Health & Human Services (Secretary) to promulgate regulations
implementing those statutory provisions. Act § 1819 (42 U.S.C. § 1395i-3). The
Secretary’s regulations are found at 42 C.F.R. part 483.

A facility must maintain substantial compliance with program requirements in order to
participate in the program. To be in substantial compliance, a facility’s deficiencies may
pose no greater risk to resident health and safety than “the potential for causing minimal
harm.” 42 C.F.R. § 488.301. When a deficiency is found, CMS has the burden of
coming forward with evidence and making a prima facie showing of a basis for
imposition of an enforcement remedy. The facility bears the burden of persuasion to
show by a preponderance of the evidence that it was in substantial compliance with
participation requirements or any affirmative defense. Batavia Nursing & Convalescent
Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904
(2004), aff'd, Batavia Nursing & Convalescent Ctr. v. Thompson,129 F. App’x 181 (6th
Cir. 2005); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB
No. 1665 (1998).

The Secretary contracts with state agencies to conduct periodic surveys to determine
whether SNFs are in substantial compliance with the participation requirements. Act

§ 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20. The Act and its
implementing regulations require that facilities be surveyed on average every twelve
months, and more often if necessary, to ensure that identified deficiencies are corrected.
Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308. A
survey agency is required to review all complaint allegations and conduct a standard or
abbreviated standard survey to investigate complaints of violations of requirements if the
stage agency concludes that a deficiency in one or more requirements may have occurred
or only a survey can determine whether a deficiency or deficiencies exist. 42 C.F.R.

§ 488.308(e).

Ifa facility is not in substantial compliance with program requirements, CMS has the
authority to impose one or more of the enforcement remedies listed in 42 C.F.R.
§ 488.406, including a CMP. As relevant here, CMS may impose a per-day remedy for
the number of days that a facility is not in substantial compliance with one or more
program requirements. 42 C.F.R. § 488.430(a).

Petitioner is an SNF that operates in Kendall, Florida. A surveyor from the Agency for
Health Care Administration for the State of Florida (state agency), K. Valdes, R.N.,
completed a complaint survey of Petitioner on July 22, 2015. CMS Exhibit (CMS Ex.) 1.
In an August 26, 2015 letter, CMS notified Petitioner of three deficiencies at the “G”
scope and severity level and imposed a per-day CMP. CMS Ex. 3. In a subsequent letter
in October 2015, CMS notified Petitioner that based on its review after receiving the state
agency’s informal dispute resolution decision, it had upheld two of the three deficiencies
and reduced the remedy imposed to a $250 per-day CMP. CMS Ex. 4. Specifically,
CMS determined that the facility was not in substantial compliance with the participation
requirements relating to revision of care plans (Tag F280, 42 C.F.R.

§§ 483.10(d)(3), 483.20(k)(2)) and maintaining a facility free of accident hazards (Tag
F323, 42 C.F.R. § 483.25(h)).' CMS determined that the noncompliance for both
deficiencies constituted a potential for more than minimal harm with actual harm to
resident health and safety from June 17 through August 21, 2015. CMS imposed a CMP
in the amount of $250 per day effective June 17 through August 21, 2015. CMS Exs.
4,5.

On October 26, 2015, Petitioner requested a hearing. On November 6, 2015,
Administrative Law Judge (ALJ) Joseph Grow issued an acknowledgment and pre-
hearing order (Order) establishing a briefing schedule. In accordance with the schedule,
CMS and Petitioner filed pre-hearing exchanges, including pre-hearing briefs (CMS Br.
and P. Br., respectively), exhibit and witness lists, proposed exhibits, and written direct

testimony.

CMS submitted CMS Exs. | to 36, and Petitioner submitted Petitioner Exhibits (P. Exs.)
1 to 34. CMS submitted written objections to 13 of Petitioner’s proposed exhibits, and
Petitioner submitted arguments in response. In opposition, Petitioner states, in pertinent
part, that CMS “is raising technical, even frivolous, objections to unremarkable
evidence.”

' The revised statement of deficiencies, Form CMS-2567, erroneously lists the applicable
regulations for Tag F280 as 42 C.F.R. § 483.20(d)(3) and 42 C.F.R. § 483.10(k)(2).

CMS Ex. 2 at 6. The applicable regulations are 42 C.F.R. § 483.10(d)(3) and 42 C.F.R.

§ 483.20(k)(2). CMS Ex. 2 at 6 (revised). Petitioner has not argued that it is prejudiced
by this error.

> The case was reassigned to me on April 1, 2016.
Judge Grow instructed in his Order that “Petitioner is directed NOT to file as proposed
exhibits any documents that CMS has already filed among its proposed exhibits.” He
likely did so with the intent of reducing the administrative burden associated with
reviewing duplicate exhibits. A number of CMS’s objections are imprecise, and at times
incorrect, and the effect of these objections has undoubtedly yielded a result contrary to
the intent of Judge Grow’s Order that presumably sought administrative efficiency.

CMS contends that P. Exs. 17 and 28 (at pages 2-6) are duplicative of CMS Exs. 21 and
19 (at pages 20, 24-26, and 29), respectively. I agree that these documents are, on their
face, duplicative, and I will not admit P. Exs. 17 and 28 (at pages 2-6). Furthermore,
CMS contends that P. Ex. 2 should not be admitted into evidence because it is not
reliable. It is unnecessary to address the reliability of this evidence. Rather, I observe
that Petitioner did not cite to P. Ex. 2 in its brief, and therefore, I will not admit P. Ex. 2
because it has not been submitted as evidence or authority in support of Petitioner’s
arguments, and the document will not be needed for the purpose of cross-examination of
any witness.

I overrule the remainder of CMS’s objections. CMS mistakenly argues that P. Ex. 4 is
duplicative of CMS Ex. 20; much of the content of P. Ex. 4 is documentation related to
“Creating and Maintaining Care Plans,” whereas CMS Ex. 20 consists of the facility’s
Falls Practice Guide. | therefore admit P. Ex. 4. While CMS argues that P. Exs. 5 and 6
are duplicative of CMS Exs. 24 and 25, respectively, I observe that the documents
submitted by Petitioner are more recent versions of CMS’s submissions, reference more
numerous sources, and contain substantive differences in content. Specifically, the article
submitted by CMS as CMS Ex. 24 was last updated on December 8, 2010, and contains
16 references, whereas the version submitted by Petitioner was updated on September 20,
2013, and contains 19 references. Likewise, the document CMS submitted as CMS Ex.
25 contains 18 references and was last updated on January 19, 2009, while Petitioner’s
version of the same article is dated February 29, 2012, and contains 27 references.
Petitioner’s submission of updated articles is not duplicative of CMS’s submissions, and I
will therefore admit P. Exs. 5 and 6.

CMS Ex. 18 is a 124-page document that contains Resident # 3’s treatment records.
CMS objects to Petitioner’s submission of six exhibits, totaling approximately 39 pages,
that it claims are duplicative of documents included in CMS Ex. 18. CMS alleges that
page | of P. Ex. 19 is a duplicate of page 1 of CMS Ex. 18. While I agree that the
content is largely duplicative, the record in question is simply an admission report and the
documents bear different printing dates. CMS argues that P. Ex. 21, pages 10-11, isa
duplicate of CMS Ex. 18, pages 35-36. However, I observe that the signature, while
appearing to be that of the same individual, is clearly unique on both documents, and in
light of the other objections raised by CMS, I find it unnecessary to undertake a line-by-
line comparative analysis of the two documents in order to ascertain whether the
difference in the two documents is limited to only the apparent difference in the
signatures. CMS vaguely objects to P. Exs. 22 and 23, contending that these submissions
are duplicative of pages 37-41 of CMS Ex. 18. I point out that P. Ex. 22 is three pages
long, and P. Ex. 23 is 18 pages long; CMS fails to point out the specific and
corresponding pages in Petitioner’s exhibits that it alleges are duplicative of pages 37-41
of CMS Ex. 18. CMS further asserts that P. Ex. 24 is duplicative of CMS Ex. 18, pages
5-18, yet I readily determined that one page of P. Ex. 24 (page 9) is not included in pages
5-18 of CMS Ex. 18 and the documents contained in each exhibit are not exact
duplicates. And finally, while CMS states that P. Ex. 25 is duplicative of CMS Ex. 18 at
page 4, I observe that P. Ex. 25 is six pages in length; CMS failed to explain which
specific page it finds is duplicative of page 4 of CMS Ex. 18. CMS’s objections to the
preceding exhibits are therefore overruled.

Based on the discussion above, I admit CMS Exs. 1-36 and P. Exs. 1, 3-16, 18-27, 28
(page 1), and 29-34 into the record.

Judge Grow’s Order explained that a hearing to cross-examine witnesses would be
necessary “only if a party files admissible, written direct testimony, and the opposing
party asks to cross-examine.” Order § 10 (emphasis omitted). Neither party has
requested the opportunity to cross-examine any witnesses at a live hearing. This matter is
therefore ready for a decision on the merits. Order § 13.

IL. Issues

The following issues will be addressed in this decision:

1) Whether Petitioner was in substantial compliance with 42 C.F.R.
§§ 483.20(k)(2) and 483.25(h).°

2) Whether CMS’s imposition of a CMP is reasonable from June 17 through
August 21, 2015.

III. Findings of Fact and Conclusions of Law*
A. Factual Background

Resident # 2

> T need not address whether Petitioner was in substantial compliance with 42 C.F.R.
§ 483.10(d)(3) in assessing whether the deficiency cited as Tag F280 should be sustained.

+ My findings of fact and conclusions of law are in italics and bold font.
Resident # 2 was admitted to the facility on July 13, 2015. P. Ex. 14. On July 17, 2015,
Resident # 2’s son, T.R., visited her at the facility at approximately 6:30 pm and told a
nurse that he planned to take Resident # 2 downstairs for “fresh air.” P. Ex. 16 at 6. A
certified nursing assistant and T.R. transferred Resident # 2 to a wheelchair, and Resident
# 2 “was happy and agreed to go downstairs.” P. Ex. 16 at 6. T.R. proceeded to push his
mother in a wheelchair outside of the facility, and he stated that he had taken his mother
around the building five times. P. Ex. 16 at 6; see P. Ex. 16 at 14 (stating that T.R.
“advised he had gotten around the building about 5 times and never expected [the
accident] to happen.”). At 8:31 pm, a kitchen employee, A.M., “clocked out” and
departed the facility by his vehicle. P. Ex. 16 at 6. At approximately 8:35 pm, Resident
# 2 “was traveling on a wheel chair [eastbound] on a private roadway (9400 SW 137
AVE)” when A.M., while driving his vehicle, struck Resident # 2. CMS Ex. 21 at 3, 5.
A State of Florida Traffic Crash Long Form report (police report) documents that A.M.
operated a motor vehicle in a careless or negligent manner, but the available evidence
does not show that a citation was issued to any person involved in the accident. CMS Ex.
21 at 3. The police report documents that Resident # 2 had been “Walking/Cycling
Along Roadway Against Traffic (in or adjacent to travel lane)” at the time of the
accident. CMS Ex. 21 at 4. The police report indicates that at the time of the accident,
the light condition was “[dJark [l]ighted.” CMS Ex. 21 at 1. A.M. reported, through an
interpreter, that he was traveling at 5 miles per hour at the time of the accident. P. Ex. 16
at 9. A.M. further stated that T.R. and Resident # 2 “were dressed in black,” each had a
dark complexion, and that he “didn’t see anyone.” P. Ex. 16 at 9. The police report
documents that the vehicle had an estimated $1,000 of “[m]inor damage,” * and the
estimated speed at the time of the collision was 15 miles per hour with a posted speed of
10 miles per hour.° CMS Ex. 21 at 2.

Emergency Medical Services personnel responded to the accident and transported
Resident # 2 to a hospital. CMS Ex. 21 at 5. The following day, on July 18, 2015, T.R.
reported to the facility’s Administrator that Resident # 2 was “doing very well,” but that
she had back pain and a bump on her head. P. Ex. 16 at 14. On July 19, 2015, T.R.
reported to the Administrator that he expected that she would return to the facility in
another day or two, but that she was awaiting a repeat CT scan. P. Ex. 16 at 14.

CMS submitted color “street view” photographs of various locations on the grounds of
the facility. CMS Ex. 23. Handwritten and typed notations on the photographs indicate
that, at one particular location, a 5 miles per hour speed limit sign is visible from one

> A.M. alleged that T.R. deliberately broke a window on his vehicle following the
accident. P. Ex. 16 at 9. It is unclear if the damage estimate in the police report
encompasses the damage that is allegedly unrelated to the collision with Resident # 2.

° The posted speed limit documented in the police report is inconsistent with the
photograph of the speed limit signage submitted by CMS. See CMS Ex. 23 at 16.
direction. CMS Ex. 23 at 15, 16. Several images show a patio in the front of the building
(CMS Ex. 23 at 27, 28, 30), and numerous photographs show there are sidewalks on the
grounds. CMS Ex. 23 at 2, 5, 24-39. Photographs (which contain annotations) show that
a roadway without a sidewalk is adjacent to a number of parking spaces in the
approximate area of the accident. CMS Ex. 23 at 7-21.

Resident # 3

Resident # 3, an 85-year-old woman, was admitted to the facility on June 3, 2015. CMS
Ex. 18 at 1, 15. Progress notes document that her admitting diagnoses included head
injury, dementia, hypertension, and a “history of falls,” and state that she “is mobility
impaired, cognitively impaired, and bowel/bladder incontinent.” CMS Ex. 18 at 15.
Immediately prior to Resident # 3’s transfer and admission to the facility, she had
received inpatient treatment at Kendall Regional Medical Center, with an admission date
of May 31, 2015. P. Ex. 20 at 1. At the time of her admission to Kendall Regional
Medical Center, she “was found wandering in the streets in her neighborhood by police”
and “[s]he apparently had a mechanical fall with some facial injury at some point, but
loes not remember the event at all.” P. Ex. 20 at 1. A CT scan of the resident’s brain
was abnormal with possible intracerebral hemorrhage. P. Ex. 20 at 2.

Two days following her admission, on June 5, 2015, Resident # 3 sustained a fall on her
right hip. CMS Ex. 18 at 2. An incident report documents that Resident # 3’s care plan
was “initiated/revised” and that a “wedge cushion [was] provided.” CMS Ex. 18 at 43.
The incident report documents that Resident # 3 had difficulty maintaining a standing
position, impaired balance during transitions, and a gait problem. CMS Ex. 18 at 42; P.
Ex. 25 at 2. The narrative portion of the investigation report documented that Resident

# 3 “is a disoriented patient who was on her [wheelchair] quiet and comfortable and stand
up all of the sudden and fel[l] to floor.” CMS Ex. 18 at 4; P. Ex. 25 at 1. The report
further stated that “‘[s]he was unable to be reach[ed] by personnel around her” and that
“no injury result[ed] from [the] incident.” CMS Ex. 18 at 4; P. Ex. 25 at 1. The incident
report does not document the reason why Resident # 3 stood up from her wheelchair prior
to her fall. CMS Ex. 18 at 4; P. Ex. 25 at 1. Resident # 3’s care plan that was
implemented on June 4, 2015, reported that she was “[a]t risk for further falls due to
unsteady gait, history of falls, possible side effects of medication,” and interventions
included a low bed and “provide assist to transfer and ambulate as needed.” CMS Ex. 18
at 37. Following Resident # 3’s fall on June 5, 2015, an intervention was added for a
“wedge cushion,” although the care plan does not indicate how the wedge cushion should
be used.’ CMS Ex. 18 at 37.

7 While the investigation report documents that a wedge cushion should be used to
prevent further falls from the wheelchair (CMS Ex. 18 at 4; P. Ex. 25 at 1), such detail
regarding the wedge cushion is not included in the care plan.
Following Resident # 3’s fall on June 5, 2015, which was the second fall in the period of
one week (with the first fall resulting in the aforementioned admission to Kendall
Regional Medical Center with a diagnosed head injury), facility staff clinically evaluated
Resident # 3 for purposes of the Minimum Data Set (MDS) on June 10, 2015. CMS Ex.
18 at 46-90. The assessment determined that Resident # 3 required “extensive
assistance” with such activities as bed mobility, transfers, walking and locomotion,
eating, toilet use, and personal hygiene, and that a one-person physical assist would be
necessary for those tasks. CMS Ex. 18 at 60. Regarding balance during transitions and
walking, Resident # 3 was assessed as being “[n]ot steady, only able to stabilize with
staff assistance” when moving from a seated to a standing position and walking, and that
she normally used a walker and a wheelchair. CMS Ex. 18 at 61 (emphasis in original).
Resident # 3 reported that she is not capable of increased independence in at least some
ADLs, and direct care staff agreed with the resident’s self-assessment. CMS Ex. 18 at
61. The active diagnoses listed on the June 10, 2015 MDS include: hypertension;
aphasia; Non-Alzheimer’s dementia; head injury, not otherwise specified; dysphagia, oral
phase; difficulty in walking; muscle weakness; and history of fall. CMS Ex. 18 at 63-64.
Registered nurse J. Maud, who is identified as an “RN assessment coordinator,” verified
completion of the MDS on June 16, 2015. CMS Ex. 18 at 87.

Progress notes from June 17, 2015, document that Resident # 3 was “in activities” at 7:45
pm when she was observed to be standing with an unsteady gait and “los[t] balance and
fell to floor on right side of body.” CMS Ex. 18 at 11. An incident report indicated that
“[patient] [was] observed standing, los[t] balance and fell to right side of body” in the
dining room. CMS Ex. 18 at 3. An Adverse Incident Report submitted to the state
agency states that “[p]atient got up quickly from her wheelchair and started to walk.
Nurse advised patient not to get up but before nurse could get to patient, the patient fell to
the floor on her right side.” P. Ex. 27 at 2. Treatment records and the investigation
report do not indicate the reason why Resident # 3 stood up from her wheelchair or
continued to stand up before the nurse could assist her. CMS Ex. 18 at 3, 11. The
facility’s investigative report sent to the state agency documented that the “[p]atient had
been given dinner, toileted and then placed comfortably in her wheelchair with wedge
cushion intervention in place. Every attempt was put in place to minimize the risk of fall
for patient. Care plan updated with psychiatric evaluation to improve anxious
behaviors.” P. Ex. 27 at 2. A CT scan of Resident # 3’s abdomen and pelvis obtained on
June 17, 2015, indicated that she sustained a “[h]ighly comminuted fracture involving the
proximal left femur including the femoral neck.” P. Ex. 28 at 3. X-ray imaging of the

ip revealed an “oblique intertrochanteric fracture of the proximal right femur with
distraction of the lesser trochanter fragment.” P. Ex. 28 at 6. Progress notes document
that Resident # 3 returned to the facility on June 20, 2015, following surgery to repair her
ip fracture. CMS Ex. 18 at 11. Upon Resident # 3’s return to the facility on June 20,
2015, the only intervention added to Resident # 3’s care plan with respect to prevention
of falls was a “[p]sychiatric evaluation.” P. Ex. 30 at 19; see P. Ex. 27 at 2 (“care plan
updated with psychiatric evaluation to improve anxious behaviors”); CMS Ex. 18 at 33-

34 (June 23, 2015 psychiatric evaluation reporting, in relevant part, that Resident # 3 will
continue taking Seroquel as prescribed). No other interventions with respect to fall
prevention were added prior to August 2015. P. Ex. 30 at 18-19.

B. Petitioner was not in substantial compliance with 42 C.F.R.
§§ 483.20(k)(2) and 483.25(h) when it failed to add any
meaningful interventions to Resident # 3’s care plan to minimize
the risk for further falls after she experienced her third fall in the
span of less than three weeks.

The Medicare participation requirement set forth at 42 C.F.R. § 483.20(k)(1) provides:

Comprehensive care plans. (1) The facility must develop a comprehensive care
plan for each resident that includes measurable objectives and timetables to meet a
resident’s medical, nursing, and mental and psychosocial needs that are identified
in the comprehensive assessment. The care plan must describe the following---

(i) The services that are to be furnished to attain or maintain the resident’s
ighest practicable physical, mental, and psychosocial well-being as
required under § 483.25.

Additionally, a care plan must be:

(i) Developed within 7 days after completion of the comprehensive
assessment;
(ii) Prepared by an interdisciplinary team, that includes the attending physician,
a registered nurse with responsibility for the resident, and other appropriate
staff in disciplines as determined by the resident’s needs, and, to the extent
practicable, the participation of the resident, the resident’s family or the
resident’s legal representative; and
(iii) Periodically reviewed and revised by a team of qualified persons after each
assessment.

42 C.F.R. § 483.20(k)(2). While the regulation requires that a care plan be implemented
within 7 days of completion of the comprehensive assessment, the facility stated that it
implements an interim care plan upon admission, and it explained that such a plan “is
edited and amended on an ongoing basis as the physician gives additional orders and we
learn more about the resident and her condition, needs, and preferences.” P. Ex. 33 at 2.

The facility’s guidance to employees regarding fall prevention is set forth in its Falls
Practice Guide. CMS Ex. 20. In its brief, Petitioner acknowledges that when its
interdisciplinary care planning team reviews a care plan and considers interventions, it
uses the Falls Practice Guide. P. Br. at 15-16. With respect to the initial plan of care,
10

the Falls Practice Guide suggests a number of strategies, which include the following
strategies that were not listed on Resident # 3’s care plan in furtherance of the goal of
minimizing the risk for injury from falls (these were not listed at any time from her
admission through her return to the facility following hip repair surgery): use of
appropriate footwear; use of hip protector products, as clinically indicated; review of
ordered medications for potential fall risk side effects; provision of assistive devices, as
clinically indicated (may include a walker); and referral to physical and occupational
therapy. CMS Ex. 20 at 6. In addressing comprehensive care plans, the Falls Practice
Guide suggests potential ongoing interventions that may include:

exercise and activity programs

patient education regarding safe transfers, ambulation and assistive device
use

structured programs for those patients who wander
restraint reduction, if applicable

rehabilitation programs

toileting programs

environmental modification

medication regimen review

vision interventions/treatment

orthostatic hypotension evaluation and management
restorative nursing programs

CMS Ex. 20 at 8. Pertaining to ongoing management strategies, the Falls Practice Guide

instructs:

The center may designate members from the interdisciplinary
team to participate in post-fall patient evaluation activities.
The interdisciplinary team members may include a physical
therapist, occupational therapist, licensed nurse, nurse
practitioner or nursing assistant. It is recommended that a
member of the interdisciplinary team conduct a bedside
evaluation after a fall occurs or per a center identified
schedule with findings documented in the clinical record.
The bedside evaluation may include, but is not limited to the
following:

review of the circumstances surrounding a patient’s fall

evaluation of the patient’s room and other areas to identify environmental
risk factors

interview of the patient or others witnessing the fall, if possible
11

e identification of any changes in patient’s risk factors, condition, and
functional status

e review of the patient’s current plan of care

e revision of the care plan to address the patient’s current risk factors and
needs

CMS Ex. 20 at 9. The Falls Practice Guide further directs that the “care plan is revised
as clinically indicated to meet the patient’s current needs” following a fall. CMS Ex. 20
at 12 (emphasis added).

Resident # 3 had three falls in the span of less than three weeks, with two of those falls
resulting in significant injury, specifically, a head injury with possible intracerebral
emorrhage immediately prior to her admission to the facility and a highly comminuted
fractured hip resulting from her second fall at the facility. Petitioner identified Resident
# 3 as being at risk of fall upon her admission to the facility on June 3, 2015. P. Ex. 32

at 4 (Director of Nursing, A. Cadenhead, R.N., testified that initial assessments noted that
Resident # 3 was “confused, demented, had suffered a head injury, and was at risk for
falls due to muscle weakness, unsteady gait, a history of falls, incontinence, use of
psychoactive medications, and other underlying conditions.”).

The facility’s Falls Practice Guide clearly addresses the role of the interdisciplinary care
team in care planning: An interdisciplinary team “designs the patient’s care plan to focus
on all of the patient’s issues including those associated with fall prevention and fall risk
management.” CMS Ex. 20 at 8. Furthermore, as stated by the facility’s Falls Practice
Guide: “Regardless of the interventions that are put in place, a key factor to success is
the timely review of the interventions as the patient’s condition and needs change.” CMS
Ex. 20 at 8. And importantly, the Falls Practice Guide directs that following a fall, “[t]he
interdisciplinary care plan team reviews the patient’s most current Falls CAA [Care Area
Assessment] or fall evaluation . . . to determine if the patient’s present condition or status
has changed and therefore requires the completion of a new fall evaluation.” CMS Ex.
20 at 12; see, e.g., 42 C.F.R. § 483.20(k)(2)(iii) (noting periodic review of care plan by
interdisciplinary team).

The Director of Nursing, in her testimony, stated that “I agree that the interdisciplinary
team must reevaluate a resident’s care plan after any fall (and any other significant
event), but it does not necessarily follow that the care planning team must change the
care plan after every fall. P. Ex. 32 at 7 (emphasis in original). However, the Director of
Nursing, in explaining in her testimony that Resident # 3’s falls care plan was timely
reviewed after the June 5 fall and interventions were added, discussed that a /one
individual, Y. Morales, R.N., reviewed the care plan and added the intervention of a
wedge cushion. P. Ex. 32 at 8; see CMS Ex. 18 at 43 (falls report signed by Y. Morales,
R.N., noting care plan initiated/revised with “wedge cushion provided” on June 5, 2015);
CMS Ex. 18 at 37 (addition of care plan intervention of “wedge cushion” by Y. Morales,
12

R.N. on June 5, 2015); CMS Ex. 18 at 4 (investigation report signed by Y. Morales, R.N.,
noting “care plan initiated, patient place on wedge cushion to avoid further falls from
[wheelchair]”).

Similarly, there is no evidence that an interdisciplinary care team reviewed and revised
Resident # 3’s care plan following her fall that resulted in a hip fracture on June 17, 2015.
Following Resident # 3’s second fall at the facility on June 17, 2015, N. Wolfe, R.N.,
added “[p]sychiatric evaluation” to Resident # 3’s care plan (P. Ex. 30 at 19), yet there is
no evidence, such as witness testimony, physician orders, therapist assessments, progress
notes, or documentation, of any meetings with Resident # 3 and/or her family members,
of any action by an interdisciplinary team, or that the order for a psychiatric evaluation
was the product of an interdisciplinary review following Resident # 3’s significant injury.
Even though this resident experienced her third fall in less than three weeks and sustained
a very significant injury, no additional interventions were added to prevent the risk of
injury from falls other than a psychiatric consultation, which determined that “[p]atient
will continue taking the Seroquel as prescribed, to the patient for symptoms of akathisia
and dystonia.”* CMS Ex. 18 at 33-36. Furthermore, there is simply no contemporaneous
evidence that Resident # 3’s repeated falls were due to a psychiatric impairment or
medications prescribed therefor.” See CMS Ex. 18 at 34 (June 23, 2015 psychiatric

® With respect to this psychiatric evaluation, the Director of Nursing testified that “[the
psychiatrist] was continuing to evaluate [Resident # 3’s] use of psychoactive medications
. .. to determine whether they could be contributing to possible agitation and balance
issues.” P. Ex. 32 at 9. The Director of Nursing further testified that the psychiatrist did
order some adjustments to Resident # 3’s meds, including a trial course of Xanax. P. Ex.
32 at 9. However, the reports of both psychiatric evaluations in June 2015 do not
reference any prescriptions for Xanax. CMS Ex. 18 at 33-36.

° Although the June 6, 2015 psychiatric evaluation report states Resident # 3 was
reported to have agitation, and the June 17, 2015 fall report references “agitation” and
“anxiety disorder” as relevant “[d]isease and [c]onditions,” there is no indication in
progress notes or investigative reports that “agitation” or other mental symptomatology
was the cause of her falls. CMS Ex. 18 at 35, 44. In fact, the June 17, 2015 fall report
documents a number of other relevant physical performance limitations, diseases and
conditions, and laboratory tests, including difficulty maintaining standing position,
impaired balance during transition, gait problems, medication usage, incontinence,
Alzheimer’s disease, and dehydration. CMS Ex. 18 at 44-45. Further, I note that it
appears that, prior to Resident # 3’s admission to the facility in June 2015, she was living
at home. It is simply quite possible that Resident # 3 was not accustomed to being seated
in a wheelchair and did not understand that she should seek assistance prior to standing
from her wheelchair and attempting to walk. Additionally, the MDS indicates that she
“normally used” both a wheelchair and a walker, indicating that she may have been
accustomed to standing and ambulating with a walker prior to her admission to the
13

evaluation stating that Resident # 3 will continue taking the lowest dose of psychotropic
medication). In fact, the investigative and incident reports and witness statements simply
report that both falls were the result of Resident # 3 attempting to stand up from her
wheelchair and walk, and they do not provide a reason why Petitioner is believed to have
stood up from her wheelchair. I consider the lack of meaningful interventions, or any
record of interdisciplinary review of Resident # 3’s care plan preceding the addition of
the care plan intervention for a psychiatric evaluation, to be significant in light of the
facility’s policies set forth in its Falls Practice Guide and Medicare requirements. In
fact, the Falls Practice Guide states that risk factor management interventions include the
following: therapies for balance, gait, strength training, pain, cognition, low vision,
chair/bed positioning, spasticity management, incontinence management; exercise and
activity programs; patient education regarding safe transfers, ambulation and assistive
device use; and structured programs for those patients who wander. CMS Ex. 20 at 8-9.
Likewise, other interventions, including additional supervision, could have been
considered by an interdisciplinary care team immediately following either fall at the
facility. While the facility’s Director of Nursing testified that “I believe we did all we
could do to keep this Resident from falling” (P. Ex. 32 at 10), I disagree that the facility
took the requisite measures to update Resident # 3’s care plan to prevent foreseeable risks
of harm from accidents. Although Petitioner’s witness, M. Jean, R.N., who is the MDS
Coordinator, testified that “[e]very day, the clinical team has a meeting . . . to discuss
falls, accidents, and other incidents and clinical issues that may require reassessment of
care plans [and] [the] meeting is attended by the Director of Nursing, Assistant Director
of Nursing, Unit Managers, and most department heads” (P. Ex. 33 at 2-3), there is no
evidence that such a meeting occurred to address Resident # 3’s care plan interventions in
the immediate aftermath of either of her falls. In fact, Resident # 3’s care plan was
revised only minutes following her fall on June 5, 2015. Likewise, there is no indication
that Resident # 3, her family, or her doctors were consulted prior to the addition of either
intervention that was added to her care plan following her falls. While the facility
believes that it did everything possible to prevent Resident # 3’s falls, it did not do so,
and the result was that Resident #3 sustained a significant fracture on June 17, 2015, and
remained at risk for further falls until the facility achieved substantial compliance on
August 21, 2015.

While there is no evidence documenting that an interdisciplinary care team reviewed
Resident #3’s care plan following either of her falls on June 5 or June 17, the evidence

facility. CMS Ex. 18 at 61; see Facility Falls Guide, CMS Ex. 20 at 4 (stating “[t]he risk
for patient falls is potentially greater upon admission and within the first few days post-
admission to a long-term care center compared to other similar environments”). There is
no evidence that she was provided with a walker to use if she stood up from her
wheelchair, even though the MDS reported that she normally used a walker. CMS Ex. 18
at 61; see 42 C.F.R. § 483.25(h)(2) (facility must ensure that each resident receives
assistive devices to prevent accidents).
14

strongly suggests that such an interdisciplinary review did not occur. For instance, there
are no physician’s orders documenting that the physician was consulted regarding care
plan interventions. Further, even though Resident # 3 fell at approximately 3:35 p.m. on
June 5, her care plan was updated a mere 11 minutes later on that same day with a single
new intervention added, a wedge cushion. CMS Ex. 18 at 42-43 (noting the time of fall
of 3:35 p.m. and the time of the care plan revision as 3:46 p.m.). It appears that Nurse
Wolfe was the sole individual responsible for updating Resident # 3’s care plan following
Resident # 3’s fall on June 17, 2015, and there is no documentation supporting that
anyone else was consulted. While Petitioner’s MDS Coordinator, M. Jean, explained that
the facility holds a daily interdisciplinary meeting called an “Eagle Room” meeting “to
discuss falls, accidents, and other incidents that may require reassessment of care plans,”
the facility has presented no evidence or testimony indicating that such an “Eagle Room”
meeting addressed Resident # 3’s care plan following either of her falls in June 2015.

P. Ex. 33 at 2-3. Thus, the evidence supports that a single individual, a registered nurse,
updated Resident # 3’s care plan on both June 5 and 17, 2015, in contravention of the
facility’s Falls Practice Guide, Medicare regulations, and the facility’s own witnesses’
testimony.

C. Petitioner was in substantial compliance with 42 C.F.R.
§ 483.25(h) at the time Resident # 2 and her son were involved as
pedestrians in a motor vehicle accident in the facility’s roadway.

While I have sustained CMS’s determination that the facility was not in substantial
compliance with 42 C.F.R. §§ 483.20(k) and 483.25(h) with respect to the care of
Resident # 3, I will nonetheless briefly address the parties’ arguments regarding the care
of Resident # 2. Pursuant to 42 C.F.R. § 483.25(h), a resident environment must
“Tremain] as free of accident hazards as is possible” and the facility must ensure “[e]ach
resident receives adequate supervision . . . .” CMS’s discussion of the accident involving
Resident # 2 in the argument portion of its brief is limited, in that it contends:

[Petitioner] knew that residents and visitors regularly walked
around the building using the sides and back of the parking
lot/private road. . . . But [Petitioner] failed to take all
reasonable and adequate steps to limit residents’ access to the
back and side areas of its parking lot/private road or to make
these areas safe for pedestrians. .. . As a result, Resident 2
was struck by a vehicle in the parking lot/private road,
suffered serious injuries,'° and was hospitalized.

'° The only apparent support for CMS’s assertion that Resident # 2 sustained “serious

injuries” is its reference to the survey notes. See CMS Ex. 8 at 4 (reporting a hematoma
to the right side of the head); CMS Ex. 11 at 6 (reporting that Resident # 2 was alert and
oriented following the accident and had a hematoma to the right side of the head, a small
15

CMS Br. at 9. In support of this argument, CMS cites to the statement of deficiencies,
surveyor notes, photos of the grounds, the surveyor’s testimony, and the police report.
However, CMS has not demonstrated noncompliance on the part of the facility. While
CMS has submitted numerous photographs to demonstrate how the facility environment
is purportedly not free of accident hazards on its rear roadway, I point out that many of
the photographs visibly demonstrate that there are sidewalks on the facility grounds, and
other photographs show there is an outdoor patio area in the front of the facility. CMS
Ex. 23 at 2, 5, 24-39. Therefore, it appears that there is an ample amount of outdoor
space that is safely accessible for a family member to take a resident out for “fresh air”
without the need to walk the resident in a roadway. The photographs submitted by CMS
clearly show that the roadway surfaces are just what they are: roadways. No one from
the facility’s staff pushed Resident #2 in her wheelchair in the roadway; rather, the
resident’s own son pushed her wheelchair in the roadway, and admitted that he had
circled the campus on its roadway five times and that other vehicles had passed them
except for the vehicle that struck Resident #2. P. Ex. 16 at 6. The accident report
documents that Resident # 2 was in the roadway in dark but lighted conditions. CMS Ex.
21 at 1. One nurse, M. Peddie, LPN, testified that “I believe I told the surveyor that I did
not recall any similar accident during the twenty five years I have worked at the Center.”
P. Ex. 34 at 4. Although the surveyor testified that there are several benches near the rear
roadway, she acknowledged that the area’s “primarily [sic] use is as a loading dock for
large deliveries of food and supplies, as well as garbage storage and removal.” CMS Ex.
36 at 4. While the surveyor was critical that the sidewalk does not surround the campus
and that a speed limit sign was not visible in both directions, I note that, based on the
photographs, it appears that it would be difficult to drive much faster than 5 miles per
hour due to the curvature and narrow width of the road at that location, along with the
close proximity to the building structure and adjacent parking spaces. See CMS Ex. 23.
Furthermore, I ultimately conclude that a major factor in the accident is that Resident

# 2’s son pushed the resident in her wheelchair on a roadway during dark conditions
while both were wearing dark clothing, rather than utilizing the available sidewalks or
outdoor patio. Based on the instant circumstances underlying this particular and
unfortunate accident, I cannot conclude that the facility failed to take reasonable steps to
mitigate any foreseeable risks of harm from accidents on its roadway. See, e.g., Maine
Veterans' Home - Scarborough, DAB No. 1975 at 10 (2005).

abrasion to the right side of the face, a small skin tear to the right side of the knee with
bleeding, and was observed by a member of the facility’s staff to be wearing a neck brace
while undergoing treatment in the hospital trauma unit). While any injury to a facility
resident in such a manner is concerning and unfortunate, I disagree with CMS’s
characterization of the injuries as “serious,” in the absence of any citation to treatment
records or other medical evidence documenting the severity of the injuries.

16

D. Petitioner does not dispute CMS’s determination as to the
duration of noncompliance, and the duration of the period of
noncompliance is consistent with statutory and regulatory
requirements.

Substantial compliance means not only that the facility corrected the specific cited
instances of substantial noncompliance but also that it implemented a plan of correction
designed to assure that no additional incidents would occur in the future. Once a facility
is found to be out of substantial compliance, it remains so until it affirmatively
demonstrates that it has achieved substantial compliance once again. Premier Living &
Rehab Ctr., DAB No. 2146 at 23 (2008); Lake City Extended Care, DAB No. 1658 at 12-
15 (1998). The burden is on the facility to prove that it is compliant with program
requirements, not on CMS to prove that deficiencies continued to exist after they were
discovered. Asbury Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002). A facility’s
return to substantial compliance usually must be established through a resurvey. 42
C.F.R. § 488.454(a). To be found in substantial compliance earlier than the date of the
resurvey, the facility must supply documentation “acceptable to CMS” showing that it
“was in substantial compliance and was capable of remaining in substantial compliance”
on an earlier date. 42 C.F.R. § 488.454(e) (emphasis added); Hermina Traeye Mem’l
Nursing Home, DAB No. 1810 at 12 (2002) (citing 42 C.F.R. § 488.454(a), (e)); Cross
Creek Care Ctr., DAB No. 1665 (1998).

Here, Petitioner raises no arguments regarding the duration of the period of substantial
noncompliance. Because Petitioner has not established that an effective plan of
correction was implemented any earlier than August 21, 2015, I sustain CMS’s
determination as to the duration of the period of substantial noncompliance. See CMS
Ex. | at 17 (plan of correction indicating date of correction of August 22, 2015).

E. The penalty imposed is reasonable.

I examine whether the amount of a CMP is reasonable by applying the factors listed in 42
C.F.R. § 488.438(f): 1) the facility’s history of noncompliance; 2) the facility’s financial
condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of
culpability, which includes neglect, indifference, or disregard for resident care, comfort,
or safety. The absence of culpability is not a mitigating factor. The factors listed in 42
C.F.R. § 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship
of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s
prior history of noncompliance in general and specifically with reference to the cited
deficiencies.

The regulations specify that a CMP that is imposed against a facility on a per-day basis
will fall into one of two ranges. 42 C.F.R. §§ 488.408, 488.438. The upper range of a
CMP, $3,050 per day to $10,000 per day, is reserved for deficiencies that pose immediate
17

jeopardy to a facility’s residents and, in some circumstances, for repeated deficiencies.
42 CFR. §§ 488.438(a)(1)(i), 488.438(d)(2). The lower range of CMP, $50 to $3,000
per day, is reserved for deficiencies that do not pose immediate jeopardy, but either cause
actual harm to residents, or cause no actual harm but have the potential for causing more
than minimal harm. 42 C.F.R. § 488.438(a)(1)(ii). In assessing the reasonableness of a
CMP amount, an ALJ looks at the per-day amount, rather than the total accrued CMP.
See Kenton Healthcare, LLC, DAB No. 2186 at 28 (2008). The regulations leave the
decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS
and the ALJ, requiring only that the regulatory factors at 42 C.F.R. §§ 488.438(f) and
488.404 be considered when determining the amount of a CMP within a particular range.
42 CFR. §§ 488.408, 488.408(g)(2), 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2)
and (3); Alexandria Place, DAB No. 2245 at 26-27 (2009); Kenton Healthcare, LLC,
DAB No. 2186 at 28-29.

Unless a facility contends that a particular regulatory factor does not support the CMP
amount that CMS imposed, the ALJ must sustain it. Coguina Ctr., DAB No. 1860 at 32
(2002). CMS decided to impose a per-day CMP in this case of $250 from June 17, 2015,
through August 21, 2015, which is at the very low end of the penalty range for
deficiencies that do not pose immediate jeopardy.'' 42 C.F.R. § 488.438(a)(1)(ii).. The
per-day penalty for these violations was very close to the minimum permissible under
CMS’s regulations, and Petitioner in its brief has not pointed to any factors that show the
CMP was unreasonable. The deficiencies I have affirmed justify a penalty of $250 per
day, and the CMP is therefore reasonable. 42 C.F.R. § 488.438(a)(1)(ii).

Petitioner has raised no arguments in its brief regarding the amount of the CMP. CMS
contended in its brief that the facility “has a considerable history of noncompliance.”
CMS Br. at 11, citing CMS Ex. 7 (AEM Nursing Home Enforcement History).
Furthermore, the facility is culpable, as evidenced by the actual harm sustained by
Resident # 3. I reiterate that the per-day CMP is at the very low end of the wide range
allowed by regulation, and the $16,500 CMP is reasonable.

'' CMS exercised discretion in determining that Petitioner’s noncompliance began on
June 17, 2015. The evidence arguably demonstrates that the noncompliance began
earlier, at the time of Resident # 3’s first fall at the facility on June 5, 2015 (and second
fall in the span of a week), at which time the facility implemented a single additional
intervention to Resident # 3’s care plan only minutes after her fall.
18

IV. Conclusion

For the reasons discussed above, I find that the facility was not in substantial compliance
with Medicare requirements and that the $250 per day penalty from June 17 to August
21, 2015, was reasonable.

/s/
Leslie C. Rogall
Administrative Law Judge