Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Avalon Place Kirbyville,
(CCN: 675220),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-12-1235
Decision No. CR2930

Date: September 30, 2013

DECISION

Petitioner, Avalon Place Kirbyville (Petitioner or facility), is a long-term care facility
located in Kirbyville, Texas, that participates in the Medicare program. Following a
complaint survey completed on June 19, 2012, the Centers for Medicare & Medicaid
Services (CMS) determined that Petitioner was not in substantial compliance with
Medicare participation requirements. Based on this determination, CMS imposed against
Petitioner a per-instance civil money penalty (PICMP) of $2,750 for noncompliance with
42 C.F.R. § 483.13(c) and a PICMP of $4,000 for noncompliance with 42 C.F.R.

§ 483.25. Petitioner appealed and CMS moves for summary judgment. After
considering the undisputed material facts, I grant CMS summary judgment and sustain its
determinations.

I. Background
The Social Security Act (Act) sets forth requirements for skilled nursing facility and

nursing facility participation in the Medicare program. The Act authorizes the Secretary
of the U.S. Department of Health and 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. To participate in the
program, a facility must maintain substantial compliance with program requirements. To
be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident
health and safety than “the potential for causing minimal harm.” 42 C.F.R. § 488.301.

The Secretary contracts with state agencies to conduct periodic surveys to determine
whether skilled nursing facilities are in substantial compliance. Act § 1864(a) (42 U.S.C.
§ 1395aa(a)); 42 C.F.R. §§ 488.10; 488.20. The Act and regulations require that facilities
be surveyed on average every 12 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. Here, surveyors from the Texas
Department of Aging and Disability Services (state agency) completed a complaint
survey of Petitioner on June 19, 2012. Based on their findings, CMS determined that the
facility was not in substantial compliance with participation requirements at 42 C.F.R.

§§ 483.13(c) and 483.25 and that the noncompliance constituted immediate jeopardy.

On August 28, 2012, Petitioner timely requested a hearing to review CMS’s
determinations. The case was assigned to me for hearing and decision. On September
13, 2012, I issued an Acknowledgment and Initial Prehearing Order establishing a
briefing schedule (September 13 Order). In accordance with that schedule, CMS filed a
Motion for Summary Judgment and Pre-Hearing Brief (CMS Br.) accompanied by CMS
Exhibits (CMS Exs.) 1 — 11. Petitioner filed its Pre-Hearing Brief (P. Br.), accompanied
by Petitioner’s Exhibits (P. Exs.) 1 — 16 and a response to CMS’s Motion for Summary
Judgment (P. Response). CMS filed a reply to Petitioner’s response to CMS’s Motion for
Summary Judgment (CMS Reply). In the absence of objection, I admit CMS Exs. 1 - 11
and P. Exs. 1 — 16 into the record.

IL. Issues
The issues presented here are whether undisputed material facts establish that:

A. Petitioner was in substantial compliance with the participation requirements at
42 C.F.R. § 483.13(c) and 42 C.F.R. § 483.25 for an incident involving Resident
1; and

B. The PICMPs CMS imposed are reasonable.

At the conclusion of the survey, CMS also cited Petitioner as out of compliance with
other participation requirements for which it did not impose a remedy. On October 23,
2012, CMS filed a motion to dismiss these alleged deficiencies arguing that Petitioner
had no right to contest them because CMS imposed no remedy based upon them.
Petitioner agreed that the case is limited to the two deficiencies for which a remedy was
imposed, stating that the issues in the case are whether it “substantially complied with the
regulations forming the basis of the F224 and F309 citations. ...” P. Br. at 1-2. As
Petitioner did not object to CMS’s motion, and because CMS imposed no remedies based
on those other deficiencies, Petitioner has no right to an administrative law judge (ALJ)
earing with regard to the deficiencies. Therefore, I grant CMS’s motion and dismiss
them from my consideration here. 42 C.F.R. § 498.70(b).

CMS’s October 23, 2012 motion to dismiss also seeks to bar Petitioner from appealing
the scope and severity of the alleged deficiencies because the scope and severity of a
PICMP is not reviewable where a successful challenge to the PICMP does not affect the
range of monetary penalties CMS is able to collect. Petitioner recognizes that the case
involves PICMPs, and that because Petitioner does not operate a nurse aide training
program, Petitioner cannot directly challenge the scope and severity of the deficiencies.
P. Br. at 2. 42 C.F.R. §§ 498.3(b)(14), (d)(10)(i); 498.60(c). I also then grant CMS’s
motion to dismiss on this issue because I agree the scope and severity determinations are
not directly reviewable, although I may consider them as a factor in reviewing the
reasonableness of the penalties.

III. Findings of Fact and Conclusions of Law
A, Summary judgment is appropriate.

CMS alleges in its motion that it is undisputed that Petitioner’s staff did not provide
cardiopulmonary resuscitation (CPR) to Resident | as required by Petitioner’s policy and
Resident 1’s plan of care. As a result, CMS alleges it is simply a matter of law as to
whether Petitioner violated the relevant Medicare requirements. Board members of the
Appellate Division of the Departmental Appeals Board (the Board) stated the standard for
summary judgment as follows:

Summary judgment is appropriate when the record shows that
there is no genuine issue as to any material fact, and the
moving party is entitled to judgment as a matter of law... .
The party moving for summary judgment bears the initial
burden of showing that there are no genuine issues of material
fact for trial and that it is entitled to judgment as a matter of
law. ... To defeat an adequately supported summary
judgment motion, the non-moving party may not rely on the
denials in its pleadings or briefs, but must furnish evidence of
a dispute concerning a material fact -- a fact that, if proven,
would affect the outcome of the case under governing
law. . . . In determining whether there are genuine issues of
material fact for trial, the reviewer must view the evidence in
the light most favorable to the non-moving party, drawing all
reasonable inferences in that party’s favor.

Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010) (citations omitted).
The role of an ALJ in deciding a summary judgment motion differs from the ALJ’s role
in resolving a case after hearing. The ALJ should not assess credibility or evaluate the
weight of conflicting evidence. Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291, at
4-5 (2009). In examining the evidence for purposes of determining the appropriateness
of summary judgment, I must draw all reasonable inferences in the light most favorable
to the non-moving party. Brightview Care Ctr., DAB No. 2132, at 2, 9 (2007);
Livingston Care Ctr., DAB No. 1871 (2003), aff'd, Livingston Care Ctr., 388 F.3d at
169, 172 (6th Cir. 2004); Guardian Health Care Ctr., DAB No. 1943, at 8 (2004); but
see, Cedar Lake Nursing Home, DAB No. 2344, at 7 (2010); Brightview Care Ctr., DAB
No. 2132, at 10 (upholding entry of summary judgment when inferences and views of
non-moving party are not reasonable).

Drawing factual inferences in the light most favorable to the non-moving party does not
require that I accept the non-moving party’s legal conclusions. Cedar Lake Nursing
Home, DAB CR1967, at 4 (2009), aff'd, DAB No. 2288 (2009), aff'd, Cedar Lake
Nursing Home v. DHHS, 619 F.3d 453 (5 Cir. 2010), citing Guardian Health Care Ctr.,
DAB No. 1943, at 11 (2004) (“A dispute over the conclusion to be drawn from applying
relevant legal criteria to undisputed facts does not preclude summary judgment if the
record is sufficiently developed and there is only one reasonable conclusion that can be
drawn from those facts.”).

Rule 56(e) of the Federal Rules of Civil procedure govern summary judgment motions in
these appeals of CMS actions, and Petitioner argues the rule requires a motion for
summary judgment to be supported by affidavits made on personal knowledge. P.
Response at 8. Petitioner argues that CMS’s motion contains unsworn declarations from
two surveyors and other unauthenticated correspondence, notes, and other documents
which do not constitute proper summary judgment evidence. P. Response at 8.
Petitioner’s argument is unavailing.

The declarations of Surveyors Deena Gill, RN (CMS Ex. 9) and Una Darlene Williams,
RN (CMS Ex. 10) are signed by the witnesses, although it is true that they are not signed
“under penalties of perjury.” However, a party moving for summary judgment need not
offer supporting affidavits or exhibits. See September 13 Order; Cedar Lake Nursing
Home, DAB CR1967, at 4 (2009), aff'd DAB No. 2288 (2009), aff'd Cedar Lake Nursing
Home v. DHHS, 619 F.3d 453 (5"" Cir. 2010) (noting that either party may move for
summary judgment under Rule 56(a) and (b) “with or without supporting affidavits.”).
With regard to other exhibits CMS submitted, Petitioner does not identify which of them

Petitioner does not consider “proper summary judgment evidence,” and thus I do not
address its general argument.

B. The undisputed evidence establishes Petitioner was not in substantial
compliance with 42 C.F.R. § 483.13(c) because Petitioner did not implement its
emergency response policies and procedures prohibiting neglect when providing
Resident I with CPR.

A facility participating in Medicare must “develop and implement written policies and
procedures that prohibit mistreatment, neglect, and abuse of residents and
misappropriation of resident property.” 42 C.F.R. § 483.13(c). The regulatory definition
of “neglect” includes failing to provide services necessary to avoid physical harm. See
42 CFR. § 488.301.

The following facts are undisputed unless otherwise noted. Petitioner’s 2007 Abuse
Policy & Procedure provides that Petitioner “will ensure a safe environment for residents
by prohibiting physical and mental abuse including involuntary seclusion, neglect and
misappropriation of resident property.” CMS Ex. 7, at 77. The policy provides that
neglect “includes but i[s] not limited to the failure to provide goods and services
necessary to avoid physical harm, mental anguish, or mental illness.” CMS Ex. 7, at 78.

Petitioner’s undated policy titled “Emergency Response to Respiratory or Cardiac Arrest”
provides that its staff will perform CPR for all “Full code” residents until “appropriate
help arrives.” This policy addresses the prohibition of neglect because it requires staff to
provide services to avoid physical harm, in this case, death. The facility’s procedural
guidelines specifically state:

1. When a resident is having a cardiac arrest or respiratory arrest, early
intervention is essential.

2. It is critically important for the nearest person(s) to

- Recognize the need for immediate action
- Get help
- Perform the steps of CPR effectively until help arrives.

3. When recognizing an emergency situation in a resident’s room,

a. Call for help by pulling the emergency call light in the bathroom, while
verbally calling for help at the same time.

b. Stay with the resident and initiate CPR until staff arrives.

c. The responding person goes immediately to nursing station and makes
an overhead page “Code Gray and room number or location of resident.”
d. When a code is called, nursing staff on nursing unit respond by CNA
retrieving the Emergency Cart, one licensed or registered nurse responding
to the room to assist with CPR, and one nurse calling EMS [Emergency
Medical Services].

e. Follow procedure for Emergency Cart — 111 C-13.

CMS Ex. 8, at 2.

Resident 1 was a 48-year-old quadriplegic man. His diagnoses included hypertension,
seizure disorder, peptic ulcer disease, anxiety, renal and urethral disease, prostatic
disorder, muscle disuse atrophy, head injury, insomnia, hypothyroidism, generalized
pain, shortness of breath, hypocalcemia, and urinary tract infection. P. Exs. 4, 10.
Resident 1 was on a “full code” status, meaning that Resident 1’s care plan required that
Petitioner’s staff initiate CPR in case of cardiac arrest. P. Br. at 2-3; CMS Br. at 3-4;
CMS Ex. 7, at 14, 75; P. Ex. 4, at 1.

Petitioner planned approaches to ensure that its staff initiated CPR for Resident 1 if he
suffered a cardiac arrest. These approaches included: placing a green colored document
in his medical record to reflect his “full code status”; placing this document in the front of
is chart under an “‘adv[ance] dir[ective] tab”; initiating “CPR immediately in the event
of cardiac arrest”; calling “EMS for hospital transfer”; contacting the resident’s physician
and family; and updating his code status quarterly during care plan meetings and as
needed. P. Ex. 4; CMS Ex. 7, at 14.

Nurse notes contained in the record describe events occurring on the evening Resident 1
died. On June 14, 2012, at 5:30 p.m., Licensed Vocational Nurse (LVN) S! documented
Resident 1’s complaint that his right foot was hurting. P. Ex. 1, at 3; CMS Ex. 7, at 58.
LVN S advised a certified nursing assistant (CNA) caring for Resident | to give him pain
medication. P. Ex. 1, at 3; CMS Ex. 7, at 58. Resident 1 declined dinner because of his
foot pain. P. Ex. 1, at 3; CMS Ex. 7, at 58. Resident 1 received fluids. P. Ex. 1, at 3;
CMS Ex. 7, at 58. At 5:45 p.m., the CNA gave Resident 1 Vicodin for pain. P. Ex. 1, at
3; CMS Ex. 7, at 58. At 7:00 p.m., LVN S checked Resident 1. P. Ex. 1, at 3: CMS Ex.
7, at 58. She reported he did not want to eat anything but stated that, while he had no
pain in his right foot, he felt “bad.” P. Ex. 1, at 3; CMS Ex. 7, at 58. LVN S took his
vital signs and determined he was afebrile. P. Ex. 1, at 3; CMS Ex. 7, at 58. At 8:30
p.m., LVN S again entered the room. P. Ex. 1, at 3; CMS Ex. 7, at 58. Resident | stated
he wanted water and LVN S gave him some. P. Ex. 1, at 3; CMS Ex. 7, at 58. At 9:15
p.m., LVN S entered Resident 1’s room, and saw that he “appear[ed] to be unconscious.”

' | identify Petitioner’s employees in this decision by their position titles and the first
initials of their last names.
P. Ex. 1, at 3; CMS Ex. 7, at 58. LVN S initiated CPR, but it was “unsuccessful.” P. Ex.
1, at 3; CMS Ex. 7, at 58. At 9:30 p.m., LVN S called the on-call nurse (RN Z) and the
Director of Nursing (DON R) and other individuals to report Resident 1’s condition. P.
Ex. 1, at 3-4; CMS Ex. 7, at 58, 60. Nurse notes do not reflect that anyone on staff called
EMS.

During Petitioner’s investigation of the incident, LVN S provided two written statements.
On June 16, 2012, LVN S stated:

I, [LVN S] was in another [resident’s] room when I was
approached by CNA [B] that [Resident 1] didn’t appear to
have a pulse. She said “I think [Resident 1] is dead.” I ran to
[Resident 1’s] room, called his name, grabbed his hand to
check for pulse. No pulse found. I put my ear to his mouth to
feel his breath. He had none. CNA was not present. I began
chest compressions. Full cycle completed. Approx. 2 times.
No results. I got down off [the resident] & left the room. I
called the on-call nurse, [RN Z] was informed of [the
resident’s] status. On call nurse informed me that she would
call DON & Adm. I went into [Resident 1’s] room & CNA
was performing post mortem care. Call received from [DON
R] who informed me to call the JP & family. This was my
first code. I was very overwhelmed with the situation.

P. Ex. 12, at 1; CMS Ex. 7, at 90, 101. On June 18, 2002, LVN S also stated:

I, [LVN S], was alerted from another resident[’]s room into
the hallway by CNA [B]. She said “I believe [Resident 1] is
dead.[”] At that moment is when I believe team work went
out the window. No teamwork! Everyone stood back &
watched me. I do believe however that we all were in a state
of shock because this was a sudden death [with] no warning
to what was about to take place. I do know without a shadow
of a doubt that I did the very best that I knew to do.

P. Ex. 12, at 2; CMS Ex. 7, at 97. DON R provided an undated written statement
regarding the incident. She stated:

On 06/14/12 at about 9:50 pm on call nurse [RN Z] called me
to tell me that [Resident 1] had passed. I then hung up the
phone and called the nursing home. [LVN G] the 10/6 LVN
was in the building and answered the phone. Then I spoke
with [LVN S] the LVN on duty for hall two. I ask[ed] [LVN

S] what happened and she told me that [Resident 1] had
passed[.] I said when and she said about 9:15 p.[m.]. I said
he was a full code and she stated I know and [I] ask[ed] her if
she did cpr [or] called 911 and she stated no[.] I ask[ed] her
why not and she told me because he was to[o] far gone. I
ask[ed] her if she had called the Dr. and she said no[.] I then
ask[ed] her if she had called the family and she said yes. I
ask[ed] her what they said he she [sic] said[.] Kathy said she
couldn’t come up here to call the Newton funeral home. I
said to call the coroner to see if he could come to pronounce
him and if he couldn’t to call me back. At 10:00 pm I called
[GD] the administrator and informed him. I called back and
she said that [M] had came and pronounced him. I told [LVN
S] that if she ever had another that if it ever happened again to
do cpr until the ambulance people got here to relieve her and
she said I know. The next morning when I got to work I read
the chart and it said that she had done cpr on [the] resident. I
called her in to talk to her about it and she told me that she
had done cpr but she had gotten no response so she stopped.
She stated she stopped because she freaked out and because
he was dead, to[o] far gone. [O]n 06/16/12 I spoke with
[LVN S] again [and] she stated that the resident was like
coming up of the bed to get her when she was doing cpr on
him and she freaked out and that’s why she stopped the cpr.
On 06/17/12 I called [LVN S] again to get her to come in for
her termination and I ask[ed] her why she didn’t call for help
and she stated they saw I needed help and did nothing to help
me they knew I was in a bind and did nothing to help.

P. Ex. 12, at 3; CMS Ex. 7, at 89. RN Z provided an undated written statement regarding
the call LVN S made to her. RN Z stated:

On June 14, 2012 @ 9:49 p, (looked @ on-call phone to see
the time), received a call from [LVN S]. She stated
“(Resident 1] is Dead.” I immediately called [DON R] &
reported death. [DON R] called [LVN S] to see what
happened. I waited about 15 min[utes] to 20 min[utes] then
called back to [LVN S] to see what happened. I asked if he
was DNR or Full Code. [LVN S] stated “Full Code.” I asked
if she did CPR. [LVN S] stated “But, He was dead & blue.”
That was the end of our conversation.
CMS Ex. 7, at 94. CNA B also made written statements concerning the incident. She
stated in one undated statement that:

On June 14, 2012, I reported to my charge [LVN S] a resident
had passed on our hall. She went down to the room to check
on him, I was not in there at the time she entered the room.
Arrived in the room after speaking to a co-worker [CNA E] in
the hallway who had spoke to me as to what was going on.
Me and [CNA E] entered the room at the same time.

CMS Ex. 7, at 96, 106. On June 18, 2012, CNA B stated:

At 9:00 pm Thursday, June 14, 2012, I started my last round
with [Resident 1]. [Resident 1] assisted me in his
repositioning to left side towards window. Completed all
care on hall 2 around 9:20 pm. Started back down the hall
going out to go smoke and see co-worker CNA E. Passed by
Resident 1’s] room and [his roommate] was up in his
wheelchair]. I stopped and spoke to him asked him was he
ok. He said yes and I noticed [Resident 1’s] color just didn’t
look right. Went over to his bed and his eyes were closed. I
felt for pulse on wrist neck and listened for heartbeat on his
chest. Heard or felt nothing[.] Tried to page [CNA M] co-
worker on Hall and couldn’t get a quick response. So I
immediately left the room to locate the charge nurse [LVN S]
whose cart was on our hall and she was in the room with
another resident] at the front of the Hall 2. [I] asked [LVN
S] to please come out [of another resident’s room] I needed to
talk to her. She said ok, just a minute. I said I need you now
without alerting [the other resident] anything was wrong. She
came to the door, informed her of couldn’t find a pulse or
eartbeat on [Resident 1] and she went to his room. I started
to his room and met co-worker [CNA E] in the hall. I must
ave had a strange look on my face and she stopped me and
said what’s wrong. | told her and she pushed her linen cart
aside and came back down the hall with me to [Resident 1’s]
room after about a time frame of 2 minutes. Went in the
room. The nurse was standing looking at [Resident 1]. I did
not see CPR performed and was not informed of a DNR or
full code at this time was 9:26 p.m.

CMS Ex. 7, at 98-99. Nowhere does Petitioner dispute that its staff should not have
initiated its CPR emergency response policy on Resident 1.
10

I. Contrary to Petitioner’s emergency response policy and procedures,
CNA B did not call for help by pulling the emergency call light in the
bathroom while verbally calling for help.

CNA B found Resident | unconscious. She noted that upon entering his room he “didn’t
look right.” CNA B checked his pulse and heartbeat but “‘felt nothing.” Although she
states she “tried to page” CNA M, she didn’t get a “quick response” and left the room to
locate LVN S. CNA B did not pull the emergency call light in the bathroom or verbally
call out for help, contrary to Petitioner’s emergency response policy and procedures.
CMS Ex. 7, at 96, 98-99, 101, 106; CMS Ex. 8, at 2.

2. Contrary to Petitioner’s emergency response policy and procedures,
CNA B did not stay with Resident 1 and initiate CPR while waiting for
other staff to arrive.

Instead of remaining with Resident | after alerting other staff with the emergency call
light in the bathroom and initiating CPR while waiting for help, CNA B left the room to
look for “the charge nurse,” contrary to Petitioner’s emergency response policy and
procedures. CMS Ex. 7, at 98-99; CMS Ex. 8, at 2. During this critical period, Resident
1 was left unattended and received no CPR.

3. Contrary to Petitioner’s emergency response policy and procedures, no
staff member called EMS.

It is undisputed that no one called EMS, contrary to Petitioner’s emergency response
policy and procedures. P. Ex. 12, at 1- 3; CMS Ex. 7, at 89, 90, 94, 96, 97, 98-99, 101,
106; CMS Ex. 8, at 2. This is consistent with the written statements of LVN S, CNA B,
and DON R. Instead, CNAs B and E entered Resident 1’s room and simply watched
LVN S administer CPR. As LVN S stated, there was no “teamwork.” The other staff
just “stood back & watched.” P. Ex. 12, at 1-3; CMS Ex. 7, at 89, 90, 94, 96, 97, 98-99,
101, 106; CMS Ex. 8, at 2.

4. Contrary to Petitioner’s emergency response policy and procedures,
Petitioner’s staff did not effectively perform CPR until help arrived.

It is further undisputed that no one relieved LVN S and continued administering CPR
once LVN S ceased her revival efforts. LVN S recognized that there was “no
teamwork.” P. Ex. 12, at 2; CMS Ex. 7, at 97. DON R states that LVN S “freaked out”
when she thought Resident 1 was “coming up [out] of the bed to get her . . . and that’s
why she stopped the cpr.” P. Ex. 12, at 3; CMS Ex. 7, at 89. However, neither CNA in
the room intervened to continue providing CPR to Resident | as Petitioner’s policy
required.
11

5. CMS provided Petitioner with proper notice of the deficiencies.

Petitioner argues that the state surveyors did not properly cite the facility because they
used “Tag F 224,” which does not cover a facility’s implementation of its abuse and
neglect policies. Petitioner asserts, instead, Tag F 226 covers policy implementation
deficiencies. Petitioner thus argues that the plain reading of the regulation does not apply
the citation to the incident at issue. P. Br. at 4-6.

Petitioner’s argument is unavailing, as it claims an incorrect reference to an F Tag
designation precludes enforcement of a regulatory requirement. The State Operations
Manual (SOM) includes guidance to surveyors on how to complete a statement of
deficiencies (SOD). Each deficiency is listed under a separate F Tag which corresponds
to a separate regulatory violation. F Tags, however, have no legal significance. Their
use does not even rise to the level of survey guidance provided by the SOM, which itself
does not have the force and effect of law. Cedar Lake Nursing Home, DAB CR1967, at
9, citing Aase Haugen Homes, Inc., DAB No. 2013, at 15 (2006), citing Beverly Health &
Rehab. Servs., Inc. v. Thompson, 223 F. Supp 2d 73, 99, 100 (D.D.C. 2002) and Cmty.
Nurition Inst. v. Young, 818 F. 2d 943, 949 (D.C.Cir. 1987). Here, the text of the
regulation at issue is set forth in the SOD, as is the surveyors’ explanation of how
Petitioner’s conduct contravened the regulation. CMS Ex. 4, at 1-2. Further, during this
appeal process, CMS notified Petitioner of the nature and legal authority relating to the
cited deficiency. Petitioner thus had adequate notice of, and opportunity to respond to,
the basis for the deficiency citation which related to non-implementation of its policy.
See, e.g., Alden Town Manor Rehab. & HCC, DAB No. 2054, at 17-19 (2006).

6. Petitioner’s arguments do not constitute legal grounds for exceptions
to the implementation of Petitioner’s emergency response policy.

Petitioner argues it could not foresee that LVN S would suffer an extreme emotional
reaction to performing CPR. P. Br. at 6-7. Moreover, Petitioner argues that Resident 1
suffered his cardiac arrest before LVN S or CNA B entered the room, and thus
performance of CPR would not have likely prevented physical harm for Resident 1.
Accordingly, Petitioner argues it did not fail to provide goods and services to Resident 1
causing him to suffer physical harm, nor did any failure to do so make a difference as to
whether Resident | lived or died. P. Br. at 8-10. In support, Petitioner references the
testimony of R. Lynn Rea, M.D. (P. Ex. 15) and Pearl Merritt, Ed.D, MS, MSN, RN (P.
Ex. 13).
12

Dr. Rea declared that performing CPR on Resident 1 would have been futile because
cardiac arrest occurred prior to the time that LVN S was called to assess the resident. P.
Ex. 15. Dr. Rea is familiar with the American Heart Association (AHA) guidelines for
performing CPR and for terminating CPR by basic life support responders outside a
ospital. Dr. Rea explains that AHA guidelines for out of hospital CPR provide that CPR
should continue until there are signs of irreversible death or until the provider is no
longer able to continue. Although Dr. Rea recognizes that LVN S was CPR certified as a
basic life support provider, health care providers such as LVN S sometimes “suffer an
extreme emotional reaction during their first code which renders them physically and
emotionally unable to continue performing CPR. When this occurs, it is not at all
foreseeable, and there is no way it can be anticipated by the facility... .” CMS Ex. 15,
at 3. In such a situation, which Dr. Rea believes happened here, the AHA guidelines
allow the traumatized provider to stop CPR and ask for help. Dr. Rea opined that
Petitioner could not have reasonably foreseen that LVN S would suffer the type of severe
emotional reaction she did, as she was licensed by the State of Texas, the facility
conducted proper inservices regarding CPR and other life support measures, and the
facility verified her CPR/basic life support certification was current. P. Ex. 15, at 3-4.
Moreover, when the surveyor questioned nurses and aides at the facility about
Petitioner’s CPR protocol, including LVN S, all could recite and articulate the protocol.
P. Ex. 15, at 4; CMS Ex. 4, at 31.

Dr. Merritt echoes Dr. Rea’s affidavit in declaring that there was “no way the nursing
ome could have known or foreseen that [LVN S] would suffer the type of severe
emotional reaction she did to her first code” given that LVN S was properly licensed,
certified in CPR and basic life support, and inserviced by Petitioner. P. Ex. 13, at 5. Dr.
Merritt notes that Resident 1 suffered no physical harm because he had already suffered
is cardiac arrest and it is “more likely than not that Resident #1 was already dead when
LVN S] entered the room.” Furthermore, according to Dr. Merritt, Petitioner’s nurses
and CNAs understood the facility’s CPR protocol. P. Ex. 13, at 5-7.

For purposes of summary judgment, I accept Petitioner’s statements that LVN S was
appropriately trained, licensed, and inserviced on Petitioner’s CPR policy. P. Br. at 6-7.
Moreover, I accept that, when the surveyors asked Petitioner’s nurses and aides about the
facility’s CPR policy, the employees were able to correctly recite the policy with respect
to residents with full codes and residents with DNR orders. I accept that Petitioner’s
employees correctly stated their understanding that, if they initiated CPR, it was to
continue until help arrived. P. Br. at 8; CMS Ex. 4, at 31. However, Petitioner still
identifies no factual dispute that is material here. Regardless of a flawless understanding,
licensing and training, Medicare requirements still obligate staff to correctly implement
Petitioner’s policy and procedures for administering CPR to a full code resident.
13

For purposes of summary judgment, I also accept that performing CPR on this resident
may ultimately have proved futile, and that, as Dr. Rea noted, when CNA B initially
found Resident 1 unresponsive, the resident had stopped breathing, he had no pulse and
his color had changed. P. Ex. 15, at 3. Dr. Merritt acknowledges, however, that LVN S
is not “qualified to pronounce death . . .” (P. Ex. 13, at 7), and the Texas Board of
Nursing has determined that LVNs do not have that authority. CMS Ex. 11, at 24. At the
time of Resident 1’s cardiac arrest, it remains undisputed that no one responding knew
whether CPR might revive the resident and neither LVN S nor CNAs B and E had the
authority to declare death. Regardless of whether a resident may eventually die,
Medicare requirements still obligate staff to appropriately implement Petitioner’s policy
and procedures with regard to administering CPR for a full code resident.

Having a full code cardiac arrest overwhelm Petitioner’s staff was also something that the
implementation of Petitioner’s CPR policy and procedures protects against by requiring
the cooperation of more than one person. So [also do not find a material fact in dispute
if I assume it was unforeseeable that a trained nurse may become overwhelmed while
performing CPR.

Finally, Petitioner argues that the Texas Supreme Court has held that when the
withdrawal of life-saving measures is at issue, if the patient, in reasonable medical
probability, would not survive due to a prior event that precedes an allegedly neglectful
act (i.e., the patient had less than a 50% chance of survival before the alleged neglect
occurs), then the health care provider cannot be liable, citing Park Place Hosp. v. Estate
of Milo, 909 S.W.2nd 508 (Tex. 1995). Petitioner’s analogy to this case is inapposite.
Petitioner acknowledges that this is a federal, not a state, forum, but urges me to apply
Texas law here and find that federal regulations do not require facilities to undertake
treatment that is futile or that in reasonable probability would make no difference. P.
Response at 7-8. Petitioner’s argument is unavailing. Park Place Hosp. v. Estate of Milo
involves issues relating to whether an estate can collect damages; it does not concern
whether a facility is in substantial compliance with federal regulatory requirements,
which would not excuse the non-compliance here even if I were to assume Resident 1’s
chances of survival were less than 50%.
14

C. The undisputed evidence establishes Petitioner was not in substantial
compliance with 42 C.F.R. § 483.25 because Petitioner did not provide
necessary care and services to Resident 1 in accordance with his plan of care.

A facility participating in the Medicare program ensures that “[e]ach resident must
receive and the facility must provide the necessary care and services to attain or maintain
the highest practicable physical, mental, and psychosocial well-being, in accordance with
the comprehensive assessment and plan of care.” 42 C.F.R. § 483.25.

Resident 1’s plan of care, as noted above, provided for several approaches to ensure that
staff would initiate CPR for Resident | in the event of cardiac arrest, including making
sure that his medical record reflected his full code status, initiating CPR immediately,
alerting other staff, and calling EMS for hospital transfer. P. Ex. 4; CMS Ex. 7, at 14.
Petitioner failed to provide the necessary care and services to Resident 1 under 42 C.F.R.
§ 483.25 when its staff failed to provide him with CPR in accordance with his care plan
and the facility’s policy and procedures for emergency response, when Petitioner’s staff
failed to immediately administer CPR, contact EMS, and continue to administer CPR to
Resident | until other staff or EMS arrived.

Petitioner argues that Resident 1 died of cardiac arrest and this event had already
occurred prior to the time CNA B asked LVN S to assess the resident. P. Br. at 11-12; P.
Response at 6-8. Petitioner contends specifically that when CNA B checked on the
resident, shortly before summoning LVN S, Resident 1 had stopped breathing, had no
pulse, and his color had changed. LVN S’s assessment was the same. P. Br. at 12; P.
Response at 6-7. Despite this, LVN S performed two rounds of CPR, to which Resident
1 did not respond. P. Br. at 12; P. Response at 7. Petitioner recognizes that LVN S is not
qualified to pronounce death. However, referring to Drs. Rea’s and Merritt’s testimony,
Petitioner argues that under the AHA’s guidelines, discussed above, LVN S was legally
authorized to stop CPR. Therefore, Petitioner did not fail to provide necessary services.
P. Br. at 12.

However, providing care pursuant to section 483.25 is not “outcome determinative.” The
fact of a negative outcome (here Resident 1’s demise) does not absolve Petitioner of
responsibility. The Board previously explained in a case involving a resident in cardiac
arrest, when the facility failed to call emergency services and stopped CPR after two or
three rounds:

The fact that a person may exhibit signs of death does not necessarily obviate the
caregiver’s duty to provide CPR because one of CPR’s goals, according to the
AHA Guidelines, is the reversal of clinical death, even though that outcome is
achieved in only a minority of cases.
15

John J. Kane Regional Ctr. — Glen Hazel, DAB No. 2068, at 17 (2007). The Board
explained that the AHA guidelines recommend that, for out of hospital situations,
healthcare workers provide basic life support and call for advanced cardiovascular life
support as part of their professional duty to respond, except in situations where a person
has obvious clinical signs of death (rigor mortis, decapitation, or dependent lividity),
when an attempt to perform CPR would place the rescuer at risk of personal injury, or
when a patient or surrogate has indicated resuscitation is not desired. Petitioner has not
come forward with any evidence showing the aforementioned obvious clinical signs of
death. As Surveyor C testified, “other than not having any pulse and heartbeat, the
review of the nurses notes by LVN [S] did not contain documentation of the presence of
any other presumptive or conclusive signs of death,” and Petitioner has not reasonably
evinced any. CMS Ex. 11, at 7; see CMS Ex. 11, at 14.

Clearly no one here disputes that Petitioner’s staff should have initiated the CPR policy
for Resident 1. By Petitioner’s own timeline, it was a matter of minutes from when he
was last seen conscious to when staff found him non-responsive. Had Petitioner’s staff
started immediately performing CPR on Resident 1, contacted EMS, and continued CPR
after LVN S became overwhelmed, there may have been a different outcome here. No
one knows with certainty whether the difference in care would have saved Resident 1’s
life if staff followed the policy and the care plan. But regardless of potential or actual
outcomes, I find the undisputed evidence establishes that Resident 1 should have been
afforded the requisite administration of CPR in accordance with his full code status.

D. The PICMPs that CMS imposed are reasonable.

CMS must consider several factors when determining the amount of a CMP (factors an
ALJ considers de novo when evaluating the reasonableness of the CMP that CMS
imposed): (1) the facility’s history of noncompliance; (2) the facility’s financial
condition, i.e., its ability to pay the CMP; (3) the severity and scope of the
noncompliance, the “relationship of the one deficiency to other deficiencies resulting in
noncompliance,” and the facility’s prior history of noncompliance; and (4) the facility’s
degree of culpability, which includes neglect, indifference, or disregard for resident care,
comfort or safety. 42 C.F.R. §§ 488.438(f), 488.404(b), (c).

The Board has repeatedly held that “an ALJ or the Board properly presumes that CMS
considered the regulatory factors and that those factors support the amount imposed.”
See, e.g., Pinecrest Nursing & Rehab. Ctr., DAB No. 2446, at 23 (2012). Thus, CMS did
not need to present evidence regarding each regulatory factor. Instead, the burden was on
Petitioner “to demonstrate, through argument and the submission of evidence addressing
the regulatory factors, that a reduction is necessary to make the CMP amount
reasonable.” Jd. (quoting Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375, at 26-
27 (2011)).
16

Petitioner challenges the seriousness of the penalty by alleging through an expert witness
that the alleged violation was isolated and only affected Resident 1 and one staff member.
P. Br. at 13; P. Ex. 13, at 7. CMS argues multiple staff members were involved in the
failure of the implementation of the policies, and thus the breach had the potential to
place all 52 facility residents who were designated “full code” at risk of death. CMS Ex.
4, at 25-26. For purposes of summary judgment, I will assume Petitioner’s proposed
limited scope. The noncompliance here remains serious, given Petitioner’s staff’s failure
to adhere to requirements to appropriately administer CPR in a life-threatening situation.
Staff's failure to even, at a minimum, simply call EMS is concerning given its professed
understanding of the facility’s emergency response policy and procedures.

Petitioner did not otherwise come forward with any evidence challenging the
reasonableness of the PICMPs with respect to any of the other regulatory factors that
would affect my consideration of the amount of the penalty. 42 C.F.R. § 488.438(f). The
PICMPs imposed, $2,750 for the instance of noncompliance at 42 C.F.R. § 483.13(c) and
$4,000 for the instance of noncompliance at 42 C.F.R. § 483.25, are in the lower half of
the allowable PICMP range, which is $1,000 to $10,000 per instance. 42 C.F.R. §
488.438(a)(2). I find them to be eminently reasonable from the perspective of the
Petitioner considering CMS would have been able to justify a much a higher CMP due to
Petitioner’s substantial culpability with respect to both violations.

IV. Conclusion

For the reasons set forth above, I grant summary judgment and sustain CMS’s
determinations. I find that the undisputed evidence establishes Petitioner was not in
substantial compliance with the participation requirements at 42 C.F.R.

§§ 483.13(c) and 483.25 and that the PICMPs imposed, $2,750 for the instance of
noncompliance at section 483.13(c) and $4,000 for the instance of noncompliance at
section 483.25, are reasonable.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

All-American Restorative Care of Washington,
(CCN: 16-5453),

Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-12-626
Decision No. CR2929

Date: September 25, 2013

DECISION

Over six days in January and February 2012, the lowa Department of Inspections and
Appeals (state agency) conducted a complaint investigation survey of All-American
Restorative Care of Washington (Petitioner). Based on the survey findings, the state
agency determined that Petitioner was not in substantial compliance with the Medicare
participation requirements for skilled nursing facilities. The state agency imposed a civil
money penalty (CMP) based on Iowa regulations and recommended that the Centers for
Medicare & Medicaid Services (CMS) also impose enforcement remedies against
Petitioner. CMS agreed with the state agency’s determination of noncompliance and
imposed a denial of payment for new admissions (DPNA) between March 13, 2012 and
April 27, 2012. Petitioner appeals the noncompliance findings and DPNA enforcement
remedy.

For the reasons set forth below, I find and conclude that Petitioner was not in substantial
compliance with Medicare participation requirements at the time of the complaint survey,
and the DPNA is an authorized enforcement remedy.
I. Case Background & Procedural History

Petitioner is a long-term care facility located in Washington, Iowa, that participates in the
Medicare and Medicaid programs. Following its survey of Petitioner’s facility, the state
agency determined that Petitioner was not in substantial compliance with three Medicare
participation requirements apropos the care that Petitioner’s nursing staff provided to
several residents:

e 42C.F.R. § 483.25 (Tag F-309) — provide necessary care and services to attain or
maintain a resident’s highest well-being in accordance with the comprehensive
assessment and plan of care;

© 42C.F.R. § 483.25(a)(3) (Tag F-312) — provide care for a dependent resident to
maintain good nutrition, grooming, and personal and oral hygiene; and

© 42 C.F.R. § 483.25(h) (Tag F-323) — prevent accidents and provide adequate
supervision and assistance devices.

The state agency imposed a $15,000 CMP based on Iowa law, and recommended that
CMS impose a DPNA. CMS Ex. 3, at 4. Ina letter dated February 27, 2012, CMS
imposed the recommended DPNA effective March 13, 2012. CMS Ex. 1. A revisit
survey determined that Petitioner achieved substantial compliance on April 27, 2012.
CMS Ex. 2, at 1. CMS lifted the DPNA as of that date.

Petitioner timely requested a hearing to challenge the noncompliance findings as well as
the DPNA. CMS submitted its prehearing exchange, including 12 proposed exhibits
(CMS Exs. 1-12). Petitioner submitted its prehearing exchange, including 31 proposed
exhibits (P. Exs. 1-31). On February 25 and 28, 2013, I held a two-day hearing by video
teleconference, with the parties and witnesses located in West Des Moines, Iowa. At the
hearing, CMS and Petitioner each offered an additional exhibit (CMS Ex. 13 and P. Ex.
32, respectively). I admitted CMS Exhibits 1-13 and Petitioner’s Exhibits 1-32 into the
record. CMS presented the testimony of the state surveyor, Robert Reck, RN. Petitioner
presented the testimony of facility owner Jerry Rhoads, director of operations Kip
Rhoads, and a licensed practical nurse (LPN) at Petitioner’s facility, Lisa Fry. The
transcript (Tr.) of the proceedings has been incorporated into the written record, subject
to the modifications established in my Order Settling Transcript and Establishing a
Briefing Schedule dated April 30, 2013. Each party has submitted post-hearing briefs
(CMS Br. and P. Br.) and post-hearing reply briefs (CMS Reply Br. and P. Reply Br.).
IL. Issue Presented
This case presents the following issue for my consideration:

1. Whether Petitioner was in substantial compliance with Medicare participation
requirements during the cited period.

Petitioner argues that the scope and severity of its noncompliance, if any, is also at issue.
P. Br. at 2. It is not. A facility may only challenge the scope and severity level of
noncompliance if: (1) CMS has made a finding of “substandard quality of care” that
affects the facility’s authority to conduct a nurse aide training and competency evaluation
program (NATCEP); or (2) a successful challenge to the scope and severity of
noncompliance would affect the range of the CMP that may be imposed. 42 C.F.R.

§ 498.3(b)(14). Here, a successful challenge would not affect the range of CMP that
CMS may impose. The only range for a possible CMP based on noncompliance that does
not pose immediate jeopardy, such as in this case, is between $50 and $3,000 per day.

42 C.F.R. § 488.438(a)(1)(ii). Moreover, CMS did not make a finding of “substandard
quality of care” as that phrase is defined in the regulations, which requires either
immediate jeopardy, a pattern of actual harm, or widespread potential for more than
minimal harm. 42 C.F.R. § 488.301. Here, the state agency found two deficiencies were
isolated instances of actual harm that were not immediate jeopardy, and one deficiency
was a pattern of no actual harm but with the potential for causing more than minimal
harm. CMS Ex. 4. Thus, the scope and severity of Petitioner’s noncompliance is not at
issue and will not be reviewed.

Also, the reasonableness of the enforcement remedy imposed is not at issue in this case.
The only enforcement remedy imposed by CMS was a DPNA. If Petitioner was not in
substantial compliance with Medicare participation requirements, then CMS had the
authority by regulation to impose a discretionary DPNA. See 42 C.F.R. §§ 488.406(a),
488.417(a). There is no right to appeal the choice of enforcement remedy. 42 C.F.R.

§ 488.408(g)(2). Therefore, the only issue before me in this appeal is whether CMS was
authorized to impose a DPNA, which, in turn, hinges upon whether Petitioner was in
substantial compliance with Medicare participation requirements. 42 C.F.R.

§ 488.406(a).

Ill. Statutory & Regulatory Framework

The Social Security Act (Act) establishes the requirements that a long-term care facility
must meet to participate in the Medicare and Medicaid programs and authorizes the
Secretary of Health and Human Services (Secretary) to promulgate regulations
implementing those statutory requirements. Act §§ 1819, 1919.' Specific Medicare
participation requirements for long-term care facilities are at 42 C.F.R. Part 483. A long-
term care facility must remain in substantial compliance with program requirements to
participate in Medicare. 42 C.F.R. § 483.1(b). “Substantial compliance” means “a level
of compliance with the requirements of participation such that any identified deficiencies
pose no greater risk to resident health or safety than the potential for causing minimal
harm. 42 C.F.R. § 488.301. By contrast, “noncompliance” means “any deficiency that
causes a facility not to be in substantial compliance.” Jd. A “deficiency” is a violation of
any statutory or regulatory participation requirement. Id.

The Act authorizes the Secretary to impose enforcement remedies against a long-term
care facility for failure to comply substantially with federal participation requirements.
See Act § 1819(h); 42 C.F.R. § 488.402. The Secretary may not continue Medicare
payments to a long-term care facility for more than six months after the facility is first
found not to be in substantial compliance. Act § 1819(h)(2)(C). Ifa facility does not
return to substantial compliance within three months, the Secretary must deny payments
for all individuals admitted to the facility after that date — commonly referred to as the
mandatory or statutory DPNA. See Act § 1819(h)(2)(D).

The Secretary has delegated to CMS and the states the authority to impose remedies
against a long-term care facility not in substantial compliance with program participation
requirements. State agencies survey facilities on behalf of CMS to determine whether the
facilities comply with federal participation requirements. 42 C.F.R. §§ 488.10-.28,
488.300-.335. The regulations specify the enforcement remedies that CMS may impose
if a facility is not in substantial compliance with Medicare requirements. See 42 C.F.R.

§ 488.406. Among the enforcement remedies available to CMS is a discretionary DPNA.
Id. §§ 488.406(a)(2)(ii), 488.417(a).

A long-term care facility may request a hearing before an administrative law judge to
challenge a noncompliance finding and enforcement remedies such as a discretionary
DPNA, which CMS imposed in this case.” Act §§ 1128A(c)(2), 1866(h); 42 C.F.R.

' The Act, as amended, is available at http://www.ssa.gov/OP_Home/ssact/ssact.htm.
On this website, each section of the Act contains a reference to the corresponding chapter
and section in the United States Code.

> With regard to a facility’s right to challenge a noncompliance finding leading to the
imposition of a discretionary DPNA, the Departmental Appeals Board has explained:

Section 498.5, in turn, sets out appeal rights applicable to various kinds of
affected parties. Specifically, among the affected parties is a provider

(continued on next page. . .)
§§ 488.408(g), 498.3(b)(13). The hearing before an ALJ is de novo. Residence at Salem
Woods, DAB No. 2052 (2006); Cal Turner Extended Care, DAB No. 2030 (2006);
Beechwood Sanitarium, DAB No. 1906 (2004); Emerald Oaks, DAB No. 1800 (2001);
Anesthesiologists Affiliated, DAB CR65 (1990), aff'd, 941 F.2d 678 (8th Cir. 1991). The
choice of remedies or factors CMS considered when choosing remedies is not subject to
review. 42 C.F.R. § 488.408(g)(2).

The standard of proof, or quantum of evidence required, is a preponderance of the
evidence. CMS has the burden of coming forward with the evidence and making a prima
facie showing of a basis for imposition of an enforcement remedy. Petitioner bears the
burden of persuasion to show by a preponderance of the evidence that it was in
substantial compliance with participation requirements or any affirmative defense.
Batavia Nursing & Convalescent Center, DAB No. 1904 (2004), aff’d, 129 F. App’x. 181
(6th Cir. 2005); see Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, No. 98-
3789, 1999 WL 34813783 (D.N.J. May 13, 1999).

IV. Findings of Fact & Conclusions of Law

Four findings of fact and conclusions of law (FFCLs) support this decision. Each FFCL
is set forth below in bold and italic font, followed by an analysis for that FFCL. Either of
the first two FFCLs supports the remedy imposed, but in the interest of thoroughness and
clarity, this Decision addresses all of the cited deficiencies.

1. Petitioner was not in substantial compliance with the general quality of care
requirement at 42 C.F.R. § 483.25 because Petitioner’s staff did not
recognize that Resident 2 and Resident 4 had fallen, or provide a meaningful
assessment before moving them after their falls.

(continued)

“dissatisfied with an initial determination to terminate its provider agreement
....” 42 C.F.R. § 498.5(b). The right to appeal noncompliance findings
leading to the imposition of a DPNA is not expressly set out in either the Act
or the regulation at section 498.5. However, section 498.3 provides that
certain initial determinations also lead to hearing rights under section 498.5,
including “‘a finding of noncompliance . . . that results in the imposition of a

remedy specified in § 488.406... .” 42 C.F.R. § 498.3(b)(12). A DPNA is
among the remedies specified in section 488.406. 42 C.F.R.
§ 488.406(a)(2)(i)(A).

Cary Health & Rehabilitation Center, DAB No. 1771, at 6 (2001).
The lead-in language of 42 C.F.R. § 483.25 states:

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

The Departmental Appeals Board (Board) has explained that this regulation “imposes on
facilities an affirmative duty designed to achieve favorable outcomes to the highest
practicable degree.” Windsor Health Care Center, DAB No. 1902, at 16-17 (2003), aff'd
sub nom. Windsor Health Center v. Leavitt, 127 F. App’x. 843 (6th Cir. 2005). “The
facility must take ‘reasonable steps’ and ‘practicable measures to achieve that regulatory
end.’” Golden Living Center - Foley, DAB No. 2510, at 23 (2013) (quoting Clermont
Nursing & Convalescent Center, DAB No. 1923, at 21 (2004)). The regulation implicitly
imposes on a facility the duty to provide care and services that, “at a minimum, meet
accepted professional standards of quality ‘since the regulations elsewhere require that
the services provided or arranged by the facility must meet such standards.’” Jd. (quoting
Spring Meadows Health Care Center, DAB No. 1966, at 17 (2005)). In Crestview Parke
Care Center v. Thompson, 373 F.3d 743 (6th Cir. 2004), the court concluded that the
general quality of care regulation is not a “strict liability” regulation. 373 F.3d at 753-54.
The court explained that the word “practicable” suggests that a “‘reasonableness’
standard inheres in the regulation” and that it would be possible for a facility to show “a
justifiable reason for the violation of [section] 483.25.” Id. at 754.

Here, despite their serious behavioral problems, it is apparent from the record that
Petitioner’s staff did not provide Resident 2° and Resident 4 with the necessary care and
services to maintain their highest practicable well-being.

a. Resident 2

Resident 2, a 58-year-old resident at the time of the survey, was admitted to Petitioner’s
facility on September 20, 2011. She had a history of dementia, depression, non-organic
psychosis, bipolar disorder, and muscle weakness, among other things. CMS Ex. 5, at
20-21. Her minimum data set (MDS) stated that she did not have a history of falls before
or after admission to Petitioner’s facility. CMS Ex. 5, at 24. Resident 2 routinely cursed

> To protect the residents’ confidentiality, the state agency referred to each resident by a
specific number rather than by name or initial. This Decision uses the same identifiers
that the state agency assigned to each resident.
at and struck nursing staff. CMS Ex. 5, at 257-60. In middle-to-late December 2011, she
began to develop hallucinations. CMS Ex. 5, at 16. To address her mental health
concerns and attain the goal of “not injur[ing] self or others,” her care plan required staff
to, among other things, “[w]Jork with resident to indentify effective coping mechanisms /
time alone in room / food / drink / toileting / activity.” CMS Ex. 5, at 42.

Video footage of a hallway in Petitioner’s facility from December 23, 2011 (CMS Ex.
10) shows that staff removed Resident 2 from a room, and then left her standing alone in
the hallway.’ She began to stagger, then fell backwards from a standing position and
struck the back of her head against the floor. At the time of the fall, the timestamp on the
video was 14:51:13. Resident 2 immediately reached up and grabbed the back of her
head. Another resident appeared at the end of the hallway and looked down at Resident
2, while staff moved around at the nursing station, also at the end of the hallway about 40
feet away. Resident 2 continued to hold her head. Seven minutes later, Resident 2 was
still lying on the floor and rolled to her left side while another resident walked past her,
and stared at her. Just over 48 minutes later, three staff members approached Resident 2
while she was lying prone on the floor. The timestamp on the video when the staff
members approached was 15:39:49. Two staff members stood over Resident 2 and patted
and rubbed her back as if to arouse her from sleep. They attempted to roll Resident 2
over, but were unsuccessful at first. Resident 2, meanwhile, was motionless. The third
staff member intervened, and all three rolled Resident 2 onto her back. Resident 2 swung
her arm around, and appeared at that point to be awake. The staff members stood
Resident 2 up; one staff member braced Resident 2 under her armpits, while the other
staff members pulled on her arms. The staff members then guided Resident 2 into her
room. CMS Ex. 10. Once inside Resident 2’s room, a certified nursing assistant (CNA)

* Petitioner attempts to discredit its own video surveillance system, pointing out that it
was motion-activated but did not always sense every motion in the hallway. According
to Petitioner, the video is unreliable because it may not have captured all of the events in
the hallway at relevant times. P. Br. at 4-6. To the contrary, I find that the video footage
in CMS Exhibit 10 is highly reliable and probative of the actions that took place in
“Hallway 4” on December 23, 2011, between 2:51 p.m. and 3:40 p.m. Petitioner has not
shown that the footage captured on the video was unreliable or that the imbedded
timestamps were incorrect. Petitioner merely posits that some intervening action may
have happened between the time when Resident 2 fell and when staff finally approached
her. P. Br. at 5. But mere speculation that something happened, without any evidence to
support that anything actually happened, does not come close to discrediting the reliable
and damning evidence that CMS Exhibit 10 provides.
discovered a large laceration to the back of Resident 2’s head.> CMS Ex. 5, at 91. She
was subsequently transported to the hospital and received four medical staples to close
the laceration. CMS Ex. 5, at 58.

During interviews with the surveyor, staff members involved in the incident confirmed
that they did not approach Resident 2 for over 48 minutes. See CMS Ex. 11, at 3, 5-7.
One CNA, J.B., wrote in a statement that she “asked [Resident 2] from a distance if she
was ok,” to which Resident 2 allegedly said “yes she was.” CMS Ex. 11, at 3. Another
CNA, A.S., wrote in a statement that she “tapped [Resident 2] on her shoulder and asked
er if she was alright,” to which there was “no response.” CMS Ex. 11, at 5. CNA A.S.
stated that they sat Resident 2 up and “she began to come to a little bit.” CMS Ex. 11, at
5. CNA A.S. asked Resident 2 if she was hurt, but Resident 2 “didn’t say too much and
didn’t remember falling; she seemed pretty out of it.” CMS Ex. 11, at 5. LPN Fry,
owever, who also testified at the hearing, provided a conflicting account. She initially
told the surveyor that she spoke with Resident 2 when she approached her in the hallway,
and Resident 2 was responding normally, able to move her arms and legs, and did not
appear injured. CMS Ex. 11, at 7; see Tr. 278-80.

Petitioner claims that its staff members presumed that, based on her earlier behavior,
Resident 2 lay down on the floor, but did not fall. See, e.g., CMS Ex. 11, at 3, 7; see also
Tr. 277-78, 299; P. Br. at 10. Indeed, the record reflects several instances where Resident
2 lay down on the floor: on December 15, 2011, Resident 2 “sat self on floor several
times” (CMS Ex. 5, at 139); on December 17, 2011, she was “laying on floor and talking
to [illegible] in room” (CMS Ex. 5, at 135); and on December 21, 2011, she was found on
the floor and stated she laid down because “it’s cooler down here” (CMS Ex. 5, at 126).
Petitioner argues that lying on the floor was an “effective coping mechanism” for
Resident 2 to address her mental health and behavioral issues. P. Br. at 10; P. Ex. 9. Her
care plan stated that staff would “work with resident to identify effective coping
mechanisms” to attain the goal of “not injur[ing] self or others.” CMS Ex. 5, at 42.

> Tt is unclear whether the laceration was the result of Resident 2’s fall, although that is
highly probable. The location of the laceration, coupled with the area of Resident 2’s
head that struck the ground, is strong evidence that the fall caused the laceration. See
CMS Ex. 5, at 59; CMS Ex. 10. However, as Petitioner points out, there is no blood
visible on the floor in the video. In any event, whether the fall caused the laceration, and
thus caused that actual harm, is not relevant to the outcome here because the scope and
severity of any noncompliance is not at issue. Even if the scope and severity of
noncompliance was at issue, Resident 2 struck her head against the hard floor and
immediately grabbed it, a clear indication of pain and actual harm. CMS Ex. 10.
However, there are no contemporaneous records documenting that staff members actually
considered Resident 2’s lying-down behavior an “effective coping mechanism” in
accordance with her care plan. Assuming, arguendo, that staff may have considered
Resident 2’s behavior as a coping mechanism, that behavior was never listed in her care
plan and not approved by an interdisciplinary team. See CMS Ex. 5, at 42-43; see also 42
C.F.R. § 483.20(k)(2)(ii) (“A comprehensive care plan must be . . . [p]repared by an
interdisciplinary team... .”). Moreover, the staff had no measures in place to determine
why Resident 2 was on the floor, i.e., as a result of a fall or lying down. If they presumed
— as they did here — that every time Resident 2 was on the floor it was the result of her
intentionally lying down, staff would never assess Resident 2 for a fall and could
overlook the potential for serious injury — again, as they did here.° Any staf!
determination about Resident 2’s lying-down behavior, assuming there actually was one,
must have been ad hoc. However, that ad hoc determination was without approved
interventions, and led to complacency among Petitioner’s staff, a serious problem
highlighted by Resident 2’s fall. In essence, Petitioner’s staff employed a “there she goes
again” mentality, a dangerous mindset for nursing staff to have, and a dubious defense to
inadequate care.

The record demonstrates that after Resident 2 fell, Petitioner’s staff took no meaningful
action to assess, care for, or provide any contemporaneous services to Resident 2.
Asking a “yes-or-no” question from a distance of 40 feet about whether Resident 2 was
“ok” is not an assessment, and provides staff members with little information about
Resident 2’s actual medical condition or how she ended up on the floor. The staff’s
failure to evaluate whether or not Resident 2 had fallen when they saw her on the floor is
far short of the “necessary care and services” required for Resident 2 to “attain or
maintain the highest practicable physical, mental, and psychosocial well-being” in
accordance with her care plan. See 42 C.F.R. § 483.25. The deficiency in providing the
necessary care and services had the potential for more than minimal harm, as Resident 2
may have had a serious but unassessed injury — which, in fact, she did. Accordingly, the
mere fact that Petitioner’s staff allowed Resident 2 to lie on the floor for 48 minutes after
falling and striking her head, without any attempt to determine whether she fell or placed
herself on the floor volitionally, demonstrates that Petitioner was not in substantial
compliance with Medicare participation requirements.

® Dr. Rey Chi Lin, a psychiatrist caring for Resident 2, stated that “it was reasonable for
staff to believe that [Resident 2] had placed herself on the floor on the date in question.”
P. Ex. 9, at 1. But Dr. Lin does not address the more fundamental question of how staff
would ever know whether Resident 2 had fallen. Dr. Lin’s statement with regard to the
belief held by Petitioner’s staff members appears to be a post facto rationalization of the
staff’s complacency, and worthy of little weight in this Decision.
10

In addition, when staff approached Resident 2, they rolled her over, lifted her up, and
made her walk without first attempting any meaningful assessment. CMS Ex. 10; CMS
Ex. 11, at 3, 5-7. Petitioner’s director of nursing and LPN Fry both state that if a resident
falls, staff must assess that resident for injuries. CMS Ex. 11, at 9; Tr. 295; see also
Golden Living Center - Foley, DAB CR2625, at 17 (2012), aff'd, DAB No. 2510 (2013)
(“It is a basic standard of practice for a nurse to immediately assess a resident after a fall,
before the resident is moved.”). Even though Petitioner’s staff was operating under the
misconception that Resident 2 had put herself on the floor on purpose, there were signs
that Resident 2 may have fallen and should have been assessed before being moved.
CNA AS. described Resident 2 as unresponsive to her voice, “out of it,” and without any
memory of falling. CMS Ex. 11, at 5. The video footage corroborates CNA A.S.” That
footage shows Resident 2 lying still while staff approached her and began patting her
back, consistent with CNA A.S.’s statement that she was unresponsive. CMS Ex. 10.
For staff to come across a resident lying prone in the hallway, unresponsive to voice, “out
of it,” and without any recollection of how she ended up on the floor are all signs that
something more serious than simply lying down may have occurred. Resident 2’s care
plan sets as a goal that she will not “‘injur[e] self or others,” CMS Ex. 5, at 42, but staff
did nothing to ensure this goal was met when they found her under the circumstances
they did, and based upon the condition she was in. There was no reference to an
“effective coping mechanism” in Resident 2’s medical records that established staff
would permit her to lie in a hallway unassessed for 48 minutes, then move her and stand
her up, despite her exhibiting signs that she may have injured herself by falling.
Accordingly, the conduct Petitioner’s staff provided, ve/ non, in response to Resident 2’s
fall violated the requirement that Resident 2 be provided necessary care and services to
attain or maintain her highest practicable well-being in accordance with her
comprehensive assessment and care plan.*

7 T place little weight on the testimony of LPN Fry, which contradicts CNA A.S. LPN
Fry claimed that Resident 2 was responsive and moving her arms and legs when the three
staff members approached her in the hallway. Tr. 296; CMS Ex. 11, at 7. The video
footage, however, shows that Resident 2 was not moving when staff approached her, but
only started moving after staff had rolled her over and had begun to sit her up. See CMS
Ex. 10.

® Petitioner argues that citing a deficiency under 42 C.F.R. § 483.25 is not appropriate in
this case because the facts related to the cited deficiency relate to assessments, which are
addressed in another regulatory provision. See P. Br. at 3. However, the regulation
related to assessments refers to the initial assessment to establish a care plan, not the
acute assessment of a resident after a fall. 42 C.F.R. § 483.20. Therefore, as in Golden

(continued on next page. . .)
11

b. Resident 4

Resident 4, a 69-year-old resident at the time of the survey, was admitted to Petitioner’s
facility on April 19, 2010. She had a history of a prior stroke, schizophrenia, and
dementia, among other things. CMS Ex. 6, at 24-25. Her MDS stated that she needed
“extensive assistance” for transfers and was “not steady” for all types of transitions and
walking. CMS Ex. 6, at 21-22. A fall risk assessment from January 18, 2012,
determined that Resident 4 was at “high risk” for falls. CMS Ex. 6, at 108. Her care plan
documented several falls between May and November 2011; it also noted that Resident 4
“will walk out to hall [and] hold onto rail or lay [down] on floor often refusing staff
assist.” CMS Ex. 6, at 47.

On January 19, 2012, a CNA found Resident 4 lying on the floor in the hallway. No one
witnessed Resident 4 fall or lie on the floor. Before assessing Resident 4, the CNA lifted
her off the floor and placed her in a wheelchair. CMS Ex. 6, at 135. A nurse later
assessed Resident 4 but did not find any injuries. CMS Ex. 6, at 135.

When a staff member found Resident 4 on the floor but had not witnessed her fall or lie
down, Petitioner’s staff was obliged to assess Resident 4 to determine whether or not she
fell and, in turn, determine the necessary care and services to attain or maintain Resident
4’s highest practicable well-being in accordance with her comprehensive assessment and
care plan. She was assessed to be at “high risk” for falls and “unsteady,” yet — as with
Resident 2 — a staff member presumed she had not fallen when he found Resident 4
lying on the hallway floor. Resident 4 had a history of several falls, and her care plan set
the goal of “not hav[ing] serious injury if fall should occur.” CMS Ex. 6, at 52.
Petitioner’s staff overlooked the potential for a serious injury after a possible fall when
the staff member picked Resident 4 up without any assessment. The staffs conduct
ignored Resident 4’s assessed risk of falls and the goal of not sustaining serious injury
from falls. Staff’s conduct had the potential to cause Resident 4for more than minimal
harm as the movement of Resident 4 may have exacerbated a fall-related injury that was
not recognized or assessed. Accordingly, Petitioner was not in substantial compliance
with 42 C.F.R. § 483.25 by not ensuring that Resident 4 received necessary care to attain
or maintain her highest practical well-being in accordance with her comprehensive
assessment and care plan.

(continued)

Living Center - Foley, DAB CR2625, it is appropriate for CMS to cite the failure of a
facility to assess a resident after a fall under 42 C.F.R. § 483.25 (Tag F-309).
12

Petitioner points to a note in Resident 4’s care plan that states she “will walk out to hall
[and] hold onto rail or lay [down] on floor often refusing staff assist.” CMS Ex. 6, at 47;
P. Br. at 14. However, unless such conduct was observed, staff could not reasonably
presume that Resident 4 placed herself on the ground, especially given staff’s knowledge
of her being at “high risk” for falls and in need of “extensive assistance” for transfers and
walking. CMS Ex. 6, at 21-22, 108. Moreover, the note in the care plan does not
implement any procedures or steps to determine whether or not Resident 4 had actually
fallen if she was found on the floor when no staff members had witnessed how she got to
the floor. See CMS Ex. 6, at 47. The note in the care plan is nothing more than a factual
assertion, but provides no directives and certainly no plan of care to address Resident 4’s
behavior. Therefore, I do not find the note in Resident 4’s care plan excuses the lack of
assessment when staff found her on the floor.

2. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h)
because it did not provide adequate supervision or assistance device to
address falls by Resident 4 and Resident 5, and did not safely maintain a
hydraulic lift used to transfer Resident 9.

The participation requirement addressing accident hazards, supervision, and assistance
devices states:

The facility must ensure that —

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

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

42 C.F.R. § 483.25(h). The Board has repeatedly explained the requirements of this
subsection, stating:

Section 483.25(h)(1) requires that a facility address foreseeable risks of
harm from accidents “by identifying and removing hazards, where possible,
or where the hazard is unavoidable because of other resident needs,
managing the hazard by reducing the risk of accident to the extent possible.”
Maine Veterans’ Home - Scarborough, DAB No. 1975, at 10 (2005).
Section 483.25(h)(2) requires that a facility take “‘all reasonable steps to
ensure that a resident receives supervision and assistance devices that meet
his or her assessed needs and mitigate foreseeable risks of harm from
accidents.” Briarwood Nursing Center, DAB No. 2115, at 11 (2007)...

Meridian Nursing Center, DAB No. 2265, at 3 (2009) (some citations omitted).
13

Section 483.25(h), however, does not impose a strict liability standard against long-term
care facilities. The existence of an accident “does not, in itself, prove that the supervision
or devices provided must have been inadequate to prevent it.” Josephine Sunset Home,
DAB No. 1908, at 13 (2004). An accident is “relevant to the extent the surrounding
circumstances shed light on the nature of the supervision being provided and its adequacy
for the resident’s condition.” St. Catherine’s Care Center of Findlay, Inc., DAB No.
1964, at 12 (2005). Rather, the “focus is on whether the facility took all reasonable steps
to ensure that a resident receives supervision and assistance devices that met his or her
assessed needs and mitigate foreseeable risk of harm from accidents.” Josephine Sunset
Home, DAB No. 1908, at 12 (citing Woodstock Care Center v. Thompson, 363 F.3d at
590).

As the Board has explained, “‘prescience” is not required. Jd. at 15. Instead, a facility is
expected to exercise “reason and professional judgment,” to determine what can be done
“to make residents (given their special needs) safe, through removing accident hazards,
providing appropriate devices, and ensuring adequate supervision.” Jd.

The regulation insists on no rigid means of preventing accidents, and the Board has held
that facilities have flexibility in choosing the methods they use to prevent accidents, so
long as the chosen methods constitute an adequate level of supervision. Windsor Health
Care Center, DAB No. 1902. A facility must anticipate what accidents might befall a
resident and take steps — such as increased supervision or the use of assistance devices
— to prevent them. Aase Haugen Homes, DAB No. 2013 (2006).

Here, Petitioner did not ensure that Resident 4, Resident 5, or Resident 9 received
adequate supervision or assistance devices to prevent accidents. While CMS also cited
the supervision Petitioner’s staff provided to Resident 10 as inadequate and a deficiency
under 42 C.F.R. § 483.25(h), the record does not support that Petitioner was deficient in
its supervision of Resident 10.

a. Resident 4

As explained above, Resident 4 needed “extensive assistance” for transfers, was “not
steady” for transitions and walking, and was assessed as being at “high risk” for falls.
CMS Ex. 6, at 21-22, 108. Under the “problem” section of Resident 4’s care plan, it
stated that she was at risk for falls and “frequently removes alarm and ambulates into
hallway.” CMS Ex. 6, at 52. One intervention to address her fall risk and the removal of
her alarm was, among other things: “Observe frequently and place in supervised area
when out of bed.” CMS Ex. 6, at 52. Earlier care plans used a personal alarm for
Resident 4, but Petitioner’s staff removed that intervention as of April 28, 2011.
14

Resident 4’s care plans noted eleven falls between May and September 2011, though
Petitioner’s staff did not add any new interventions to address these falls. CMS Ex. 6, at
52, 68. In addition, incident reports show seven occasions when staff found Resident 4
on the floor, only three of which were reported on her care plan:

1.

September 14, 2011: staff heard Resident 4 “yelling” and found her on the
floor beside her bed. Resident 4 “stated she was moving around in bed and fell
out of bed.” The incident was not witnessed. Staff placed non-skid strips on
the floor. CMS Ex. 6, at 138.

September 18, 2011: staff “observed [Resident 4] laying in hallway on right
side.” Resident 4 told a CNA that “I fell out of my chair. I hit my head.” The
incident was not witnessed. Staff re-educated Resident 4 to use call light for
assistance with her needs. CMS Ex. 6, at 137.

September 30, 2011: staff ‘observed [Resident 4] laying on right side with
pillow under head beside bed.” Resident 4 said “I fell while I was eating.”
The incident was not witnessed. Staff reminded Resident 4 to use a call light
for assistance. CMS Ex. 6, at 136.

January 19, 2012: staff found Resident 4 in the hallway and “picked [her] up
and put into [wheelchair]” prior to any assessment. The incident leading to
Resident 4’s being on the ground was not witnessed. No interventions were
put in place. CMS Ex. 6, at 135.

January 27, 2012: staff found Resident 4 “on floor outside of her door sitting
up [with] legs stretched out in front of her.” The events leading to the incident
were not witnessed. Staff placed a personal alarm on Resident 4. CMS Ex. 6,
at 133.

February 1, 2012: upon being summoned, staff found Resident 4 “lying supine
on floor in the hallway - not near walls.” Resident 4 said she did not fall, but
“scooted on my hands and knees.” The incident was not witnessed. Staff
encouraged Resident 4 to use the call light for assistance. CMS Ex. 6, at 132.

February 3, 2012: staff found Resident 4 “sitting on floor near doorway to
[her] own room.” Her personal alarm was off. The incident was not
witnessed. Staff replaced the personal alarm and redirected Resident 4 not to
remove the alarm. CMS Ex. 6, at 131.
15

The most common thread — albeit the most troubling one as well — is that Petitioner’s
staff did not witness any of the incidents where Resident 4 ended up on the floor.” Her
care plan required staff to “[o]bserve frequently and place in supervised area when out of
bed.” CMS Ex. 6, at 52. The repeated instances where staff found Resident 4 on the
floor after a fall (or possible fall) are inconsistent with carrying out the frequent
observations that her care plan required as part of the adequate supervision she needed.
Moreover, the numerous unwitnessed falls or instances where Resident 4 ended up on the
floor demonstrate that staff was complacent in placing Resident 4 in a supervised area.
Had Resident 4 been in a “supervised area” as her care plan required, staff would have
been able to monitor her more closely and provide the type of “adequate supervision”
contemplated in the regulatory standard. Instead, staff permitted Resident 4, who was at
“high risk” for falls, to ambulate in the hallway on her own without any supervision
whatsoever. Staff attempted to use a personal alarm system beginning January 27, 2012,
but it did not work and staff knew it. Just seven days later, on February 3, 2012, staff
again found Resident 4 on the floor outside of her room without her alarm. CMS Ex. 6,
at 131. Even though Resident 4 was noncompliant with her personal alarm and
continually removed it, Petitioner cannot skirt its responsibility to provide adequate
supervision simply because Resident 4 may have thwarted one type of monitoring effort.
While one-to-one supervision was likely not necessary, the repeated falls and instances
where staff found Resident 4 lying on the floor required more supervision or additional
assistance devices than what Petitioner provided. Constantly reminding Resident 4 to use
a call light was clearly not effective. See CMS Ex. 6, at 136-37. The falls and occasions
where staff found Resident 4 on the floor continued, yet Petitioner’s staff took no
reasonable steps to ensure it was providing adequate supervision or assistance devices to
prevent those incidents. At some point, after the repeated falls, Petitioner’s staff should
have recognized that the supervision provided for in Resident 4’s care plan — which staff
was not fully implementing — was no longer adequate. Accordingly, Petitioner was not
in substantial compliance with 42 C.F.R. § 483.25(h).

Petitioner claims that Resident 4 did not fall on every occasion that staff found her on the
floor because she would routinely lie down on the floor. P. Br. at 14-15, 21. That
certainly may be true. But Petitioner’s position underscores the over-arching reality that
no one actually knows how Petitioner ended up on the floor because she was not

° One incident report not listed above stated that a staff member actually saw Resident 4
trying to sit down on the ground while she was in the dining area, but prevented her from
doing so. CMS Ex. 6, at 134. However, that single incident of providing supervision to
Resident 4 while she was in a common area does not mitigate Petitioner’s overall failure
to provide adequate supervision to Resident 4 on the numerous other occasions when she
either should have been in a supervised area but was not, or when staff permitted
Resident 4 to ambulate into the hallway alone.
16

receiving the adequate supervision she needed as a resident at high risk for falls and in
need of extensive assistance while ambulating. Petitioner only theorizes that Resident 4
did not fall based on some of her prior behavior, but has provided no specific evidence
that she did not, in fact, fall on any of the occasions when staff found her on the floor.
Instead, on at least three of the occasions, Resident 4 actually told staff that she fell.
CMS Ex. 6, at 136-38. It was unreasonable at the time for staff, and equally
unreasonable now in this Decision, to infer that Resident 4 intentionally lay down every
time she was found on the floor, especially in light of her prior falls and being assessed as
“high risk” for falls. Thus, Petitioner’s claim with regard to how Resident 4 may have
ended up on the floor has no merit. Overall, Petitioner has not provided evidence
showing that it provided adequate supervision to Resident 4 in response to her repeated
falls and instances of being found on the floor.

b. Resident 5

Resident 5, a 73-year-old resident at the time of the survey, was admitted to Petitioner’s
facility on September 8, 2008. Resident 5 was assessed as “not steady” for all transfers.
CMS Ex. 7, at 18. His diagnoses included general muscle weakness. CMS Ex. 7, at 21.
Four fall risk assessments completed between May and December 2011 all assessed
Resident 5 to be at “high risk” for falls. CMS Ex. 7, at 198. At the time of the survey,
Resident 5’s two most recent care plans addressed his risk of falls and injuries.
Interventions included a call light (added January 8, 2012), non-skid strips in front of his
bed (added November 26, 2011, and again on January 23, 2012), and a lipped mattress
(undated entry). CMS Ex. 7, at 48-52. He also required “extensive assistance” for bed
mobility, transfers, and walking. CMS Ex. 7, at 17.

Resident 5 suffered several falls within a brief period, but Petitioner provided few or no
interventions to prevent future falls. Between November 19 and November 26, 2011,
Resident 5 fell to the floor three times while getting into or out of his bed. CMS Ex. 7, at
92, 100, 107. Resident 5 first fell on November 19, 2011, when he was sitting on the side
of his bed, then “slid on the floor landing on his knees.” CMS Ex. 7, at 92. Petitioner’s
staff notified Resident 5’s physician, but did not make any interventions. CMS Ex. 7, at
92. Just four days later, on November 23, 2011, Resident 5 again fell out of his bed.
CMS Ex. 7, at 100. Staff assisted him back into bed, but put no additional interventions
in place despite the mounting evidence that Resident 5’s falls were not isolated incidents,
but foreseeable accidents. CMS Ex. 7, at 194. Finally, after the third fall on November
26, 2011, for which Resident 5 was transported to a local hospital’s emergency room,
Petitioner’s staff placed non-skid strips around Resident 5’s bed. CMS Ex. 7, at 51.
Petitioner eventually fell again on January 8, 2012, trying to get out of bed and into his
wheelchair. CMS Ex. 7, at 193. Curiously, one intervention added on Resident 5’s care
plan on January 23, 2012, was to add non-skid strips around his bed even though that
intervention was supposed to be in place since Resident 5’s fall on November 26, 2011.
See CMS Ex. 7, at 48-49.

17

It is reasonably foreseeable that a resident such as Resident 5, who is assessed to be at
“high risk” for falls, will fall. It is also reasonably foreseeable that a resident such as
Resident 5, who is need of “extensive assistance” for bed mobility, will fall if not
provided with that supervision and assistance. See CMS Ex. 7, at 17. Petitioner had
several interventions in place to provide Resident 5 with supervision to mitigate this
foreseeable risk of falls. See CMS Ex. 7, at 50-52. But the supervision associated with
“extensive assistance” for transfers in and around bed was not provided to Resident 5 as
evidenced by the repeated falls around his bed. Taking no action in the face of repeated
falls and, indeed, allowing Resident 5 to continue to attempt transfers in and around his
bed despite his need for extensive assistance for those transfers is not “adequate
supervision” to prevent falls that, with each fall, became more foreseeable in nature and
scope. Petitioner’s effort, or lack thereof, with regard to Resident 5 does not comply with
the adequate supervision and assistance device requirement at 42 C.F.R. § 483.25(h)(2).

Moreover, it is questionable whether Petitioner actually provided the non-skid strips it
eventually determined were adequate to mitigate the risk of Resident 5’s foreseeable
falls. Petitioner’s staff planned to implement the use of non-skid strips on November 26,
2011, yet a later care plan also planned to implement the use of non-skid strips on
January 23, 2012. Compare CMS Ex. 7, at 51 (implementing non-skid strips on
November 26, 2011) with CMS Ex. 7, at 49 (implementing non-skid strips on January 23,
2012). The most reasonable inference from the January 23 intervention of adding non-
skid strips is that those non-skid strips were not in place before that time. Thus,
Petitioner did not provide the non-skid strips that it had added to Resident 5’s care plan
on November 26, 2011, as a means of mitigating the risk of falls. The failure to
continuously use non-skid strips on a resident at high risk for falls, who had recently
suffered several falls, and for whom non-skid strips should have been in place, further
demonstrates Petitioner’s noncompliance with 42 C.F.R. § 483.25(h)(2).

c. Resident 9

Resident 9, an 82-year-old resident at the time of the survey, was originally admitted to
Petitioner’s facility in 2009, then readmitted on June 7, 2011. Resident 9 had a history of
dementia, congestive heart failure, and hypertension, among other things. CMS Ex. 8, at
31-32. He used a “geri-chair” and wheelchair, and was rated in his MDS as being totally
dependent on nursing staff for mobility and transfers. CMS Ex. 8, at 28. His care plan
stated that at least two staff members were needed to assist Resident 9 with transfers and
they were to use a Hoyer lift'® device for those transfers. CMS Ex. 8, at 52.

' “Hoyer” is a name brand of a hydraulic-powered sling lift assistance device that
transfers residents while they are in a seated position. See CMS Ex. 8, at 12-15.

18

On January 10, 2012, staff attempted to transfer Resident 9 from his bed to a shower
chair. CMS Ex. 8, at 16. Staff used the Hoyer lift for the transfer, though staff later
noted that the straps were “worn” and “frayed.” CMS Ex. 8, at 11, 16. During the
transfer, while Resident 9 was “up in the air,” the left leg strap broke, then the right side
strap “gave,” and Resident 9 fell to the floor with his back against the bottom leg of the
Hoyer lift. CMS Ex. 8, at 16. The fall resulted in a laceration to Resident 9’s left elbow.

CMS submitted evidence showing that Petitioner’s laundry staff routinely used bleach to
clean the lift straps. CMS Ex. 8, at 8. The manufacturer’s care instructions, however,
state that use of abrasive cleaners such as bleach are not recommended and will likely
result in damage to the straps. CMS Ex. 8, at 12.

Use of a Hoyer lift may certainly be an appropriate intervention for individuals such as
Resident 9, who are totally dependent on staff assistance for transfers. See CMS Ex. 8, at
28; see also CMS Ex. 8, at 14 (stating that the purpose of a Hoyer lift is to “provide safe
transfer for non-ambulatory resident”). But the assistance device must be “adequate,” see
42 C.F.R. § 483.25(h)(2), and, when using it, the facility’s staff must continue to
“mitigate foreseeable risks of harm from accidents.” Briarwood Nursing Center, DAB
No. 2115, at 11. Here, Petitioner used an assistance device that had noticeable defects to
its critical components. The CNA that used the Hoyer lift with Resident 9 noticed that
the straps were “worn” and “frayed.” CMS Ex. 8, at 11. It was reasonably foreseeable
that the “worn” and “frayed” straps were likely to fail under the weight of a resident.
Petitioner’s nursing staff certainly should have known about the condition of the straps
through routine inspection of the lift, although the CNA involved in the incident
acknowledged that staff did not inspect the straps before using them, but only after they
failed. CMS Ex. 8, at 11; see CMS Ex. 8, at 12 (manufacturer’s instructions directing
users to “Inspect each sling carefully prior to every use”). Perhaps the most compelling
piece of evidence is the staff's use of bleach to wash the straps despite the manufacturer’s
unambiguous care instructions specifically warning against the use of bleach. The
warning states: “Never use bleach to wash or clean a Bestcare sling as the material may
become damaged.” CMS Ex. 8, at 12. The use of bleach, which resulted in “worn” and
“frayed” straps, demonstrates that Petitioner’s staff, rather than taking steps to mitigate
the risk of foreseeable accidents, was actually taking steps to create the risk of accidents
and harm to residents by using the Hoyer lift with straps that Petitioner’s staff had
damaged.

Ultimately, the Hoyer lift was not “adequate” at the time staff transferred Resident 9
because of the condition of its straps, and Petitioner’s staff did not mitigate the
foreseeable risk of accidents and harm that could result from the use of straps in poor

19

condition. Petitioner, therefore, was not in substantial compliance with the participation
requirement at 42 C.F.R. § 483.25(h)(2) when caring for Hoyer lift straps contrary to the
manufacturer’s instructions and warnings, and then using the Hoyer lift with worn and
frayed straps.

d. Resident 10

Resident 10, a 67-year-old resident at the time of the survey, was originally admitted to
Petitioner’s facility in 2005, then readmitted on October 10, 2010. She had a history of a
prior stroke, right-sided hemiparesis, schizophrenia, and muscle weakness, among other
things. CMS Ex. 9, at 20-21. Resident 10’s MDS stated that she needed “extensive
assistance” — at least two-person assistance — for mobility, transfers, and toilet use.
CMS Ex. 9, at 17. Four fall risk assessments done between April 2011 and January 2012
all determined that Resident 10 was at “high risk” for falls. CMS Ex. 9, at 6.

On January 20, 2012, Resident 10 fell off the toilet while she attempted to clean herself.
CMS Ex. 9, at 68, 71. Two CNAs had assisted Resident 10 to the bathroom; one CNA
stayed outside of the bathroom, the other CNA helped Resident 10 inside. CMS Ex. 11,
at 10. After voiding, Resident 10 insisted on wiping herself, so the CNA inside of the
bathroom stepped out to get a brief. CMS Ex. 11, at 10; CMS Ex. 9, at 68. While both
CNAs were out of the bathroom, Resident 10 leaned forward, fell off the toilet, struck her
head, and suffered a bruise on the left side of her head and an abrasion on her right knee.
CMS Ex. 9, at 68. She was subsequently transported to a local hospital’s emergency
department for evaluation. CMS Ex. 9, at 68.

The surveyor found that Petitioner did not provide adequate supervision to Resident 10
when she fell forward off of the toilet and struck her head. CMS Ex. 4, at 14-16.
However, the evidence shows that staff remained with Resident 10 while she was
voiding, and only left Resident 10 to obtain a new brief, just outside the bathroom. CMS
Ex. 9, at 68; CMS Ex. 11, at 10. At the exact time staff obtained the brief, Resident 10
leaned forward to clean herself, which resulted in her fall. CMS Ex. 11, at 10. I cannot
find that the coincidence of a staff member obtaining a new brief and Resident 10
leaning forward to clean herself violates 42 C.F.R. § 483.25(h)(2). Even if the fall was
foreseeable based on Resident 10’s weakness and assistance needs for transfers,
“adequate supervision” in this case does not require the constant visual observation of
Resident 10 voiding and wiping herself as CMS and the surveyor seem to suggest. See,
e.g., Burton Health Care Center, DAB No. 2051 (2006) (finding that a facility had
provided adequate supervision to a resident who fell when attempting to transfer off a
toilet at the same time staff momentarily turned around to obtain a brief). Nevertheless,
as discussed, there is a basis for noncompliance with that participation requirement with
regard to Residents 4, 5, and 9.

20

3. CMS has not presented a prima facie case that Petitioner did not
substantially comply with the care requirement at 42 C.F.R. § 483.25(a)(3).

To participate in Medicare, a facility must provide “necessary services to maintain good
nutrition, grooming, and personal and oral hygiene” to any resident “unable to carry out
activities of daily living.” 42 C.F.R. § 483.25(a)(3).

CMS claims that Petitioner’s staff did not provide routine, two-hour incontinence checks
of residents during the overnight shift. CMS Ex. 4, at 10-11. It is questionable whether
CMS should have cited Petitioner under section 483.25(a)(3) for an issue involving
incontinence care, which is separately addressed in section 483.25(d). However, insofar
as incontinence affects personal hygiene, it may be reviewed applying the standard in
section 483.25(a)(3) as well. The statement of deficiencies explains that the surveyor
reviewed video footage that showed a four-hour period from when facility staff first
entered and then reentered two incontinent residents’ rooms. CMS Ex. 4, at 10-11.
CMS, however, did not present any evidence to support this deficiency other than the
statement of deficiencies and brief testimony of the surveyor at hearing.'’ CMS Ex. 4, at
8-13. The surveyor testified that facility staff was required to check on residents every
two hours for incontinence, citing the State Operations Manual (SOM) guidance on
pressure sore care. Tr. 123-24. But two-hour checks are not in the plain language of the
participation requirement cited, the SOM guidance for that requirement (SOM, CMS Pub.
100-108, App. PP, Guidance for F312), or a facility policy that is in this record. Pressure
sores and incontinence are separate issues that involve separate care, and the surveyor’s
conflation of the two does not conclusively establish a standard of care that Petitioner had
to carry out for incontinent residents. He also stated that nurses were arriving on the day
shift and finding residents “soaked in urine.” Tr. 124. But, as Petitioner points out,
nothing in the record establishes that the residents were soaked in urine for a prolonged
period or whether an episode of incontinence occurred shortly before the day shift
arrived, for example, whether the resident’s soaked clothing was warm or cool.
Accordingly, CMS has not shown that Petitioner violated a participation requirement or
facility policy by not entering an incontinent resident’s room for four hours.

CMS also claims that Petitioner’s staff did not provide showers and baths to three
residents with sufficient frequency to maintain personal hygiene. The Board has
explained that bathing or showering a resident with the frequency stated in the relevant
facility policy is necessary to maintain good personal hygiene; if the facility does not do
so, it is not in substantial compliance with the regulation. Sunshine Haven Lordsburg,

‘| The statement of deficiencies referred to the incontinency care for Resident 6 and

Resident 7, but CMS did not offer any medical records for either of the residents.

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DAB No. 2456 (2012). However, unlike in Sunshine Haven Lordsburg, where the
facility did not bathe residents according their care plans or the facility policy, CMS
offered no evidence here, such as care plans or facility policies, to show how frequently
certain residents needed a shower or bath to maintain good personal hygiene. In
defending this alleged deficiency, Petitioner submitted the shower log for Resident 11,
one of the residents that the surveyor cited as not receiving a bath or shower with enough
frequency. P. Ex. 18; CMS Ex. 4, at 12. The shower log for Resident 11 shows that staff
did not shower or bathe him for nine consecutive days. P. Ex. 18, at 1. There is no
evidence, however, that shows the prolonged period without a shower or bath meant
Resident 11 was not being provided necessary care to maintain good personal hygiene.
CMS did not submit any evidence related to Resident 11, and there are no facts or
evidence in the record from which a reasonable inference can be drawn that nine days
without a shower or bath was per se insufficient to maintain Resident 11’s personal
ygiene. The only alleged standard that the surveyor cites is that “most reasonable
people prefer to bath [sic] with a regular frequency that does not extend for [five] days
between one shower and the next.” CMS Ex. 4, at 13. The surveyor’s blanket statement
about his perception of “most reasonable people” is unsupported and carries no weight.

Accordingly, I find that CMS has not established a prima facie case that Petitioner did
not substantially comply with 42 C.F.R. § 483.25(a)(3). It is nevertheless alarming that
Petitioner did not provide a shower to some of its residents for upwards of nine days.
However, simply because CMS did not support its claim for this specific deficiency does
not mean that Petitioner’s conduct is encouraged or is an example of the type of care that
a long-term care facility should provide to its residents.

4. There is a basis for CMS to impose an enforcement remedy.

As explained above, Petitioner was not in substantial compliance with Medicare
participation requirements at the time of the complaint survey. By regulation, CMS is
authorized to impose an enforcement remedy when a facility is not in substantial
compliance with participation requirements. 42 C.F.R. § 488.402(b). Therefore, there is
a basis for CMS to impose an enforcement remedy. The choice of remedy imposed,
which in this case was a DPNA, is not subject to review. 42 C.F.R. § 488.408(g)(2).
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V. Conclusion

For the foregoing reasons, Petitioner was not in substantial compliance with Medicare
participation requirements cited during the six-day complaint survey in January and
February 2012, and there is a basis to impose a DPNA between March 13, 2012 and
April 27, 2012. Therefore, the noncompliance determination and enforcement remedy
are SUSTAINED.

/s/
Richard J. Smith
Administrative Law Judge