Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Riverside Convalescent Center — Smithfield,
(CCN: 49-5332),

Petitioner,

v.

Centers for Medicare & Medicaid Services
Docket No. C-13-121
Decision No. CR4134

Date: August 19, 2015

DECISION

Petitioner, Riverside Convalescent Center — Smithfield, is a long-term care facility
located in Smithfield, Virginia, that participates in the Medicare program. One of its
residents sustained a serious injury while facility staff were attempting to move her.
Citing the circumstances surrounding the injury, the Centers for Medicare & Medicaid
Services (CMS) determined that the facility was not in substantial compliance with the
Medicare requirements governing accident prevention. CMS imposed a $7,500 per
instance civil money penalty (CMP). Petitioner timely appealed CMS’s determination.

For the reasons set forth below, I find that the facility was not in substantial compliance
with Medicare program requirements and that the penalty imposed is reasonable.

Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate
in the Medicare program and authorizes the Secretary of Health and Human Services to
promulgate regulations implementing those statutory provisions. Act § 1819. The
Secretary’s regulations are found at 42 C.F.R. Part 483. To participate in the Medicare
program, a nursing 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 CFR. § 488.301.

The Secretary contracts with state survey agencies to conduct periodic surveys to
determine whether skilled nursing facilities are in substantial compliance. Act § 1864(a);
42 CFR. § 488.20. Each facility must be surveyed annually, with no more than fifteen
months elapsing between surveys. Facilities must be surveyed more often, if necessary,
to ensure that identified deficiencies are corrected. Act § 1819(g)(2)(A); 42 C.F.R.

§§ 488 .20(a); 488.308. The state agency must also investigate all complaints. Act

§ 1819(g)(4).

In this case, surveyors from the Virginia Department of Health (state agency) completed
the facility’s annual survey on July 27, 2012, and determined that the facility was not in
substantial compliance with multiple Medicare participation requirements. CMS Exhibit
(Ex.) 1. CMS agreed and imposed a $7,500 per instance CMP for the deficiencies cited
under 42 C.F.R. § 483.25(h) (Tag F323), which addresses supervision and accident
prevention. CMS Ex. 2!

Petitioner timely requested a hearing.

On January 28, 2014, I convened a hearing, via video teleconference, from the offices of
the Departmental Appeals Board in Washington, D.C. Counsel and witnesses appeared
in Richmond, Virginia. Ms. Noreen O’Grady appeared on behalf of CMS, and Ms.
Jeannie Adams appeared on behalf of Petitioner. Transcript (Tr.) at 4.

I admitted into evidence CMS Exhibits (Exs.) 1-29 and Petitioner’s Exhibits (P. Exs.) 1-
21. Tr.5, 6,8, 10; Summary of Pre-hearing Conference at 2-3 (December 6, 2013). The
parties have filed pre-hearing briefs (CMS Br.; P. Br.), post-hearing briefs (CMS Post-
hrg. Br.; P. Post-hrg. Br.), and CMS filed a reply brief (CMS Reply).

Issues

The issues before me are:

e Was the facility in substantial compliance with 42 C.F.R. § 483.25(h), and

' Because CMS imposed no remedies for the other deficiencies cited, those findings are
not reviewable. Lutheran Home — Caledonia, DAB No. 1753 at 4 (2000); Schowalter
Villa, DAB No. 1688 at 2-3 (1999); see 42 C.F.R. §§ 488.406; 498 .3(a); 498.3(b)(13).
e Ifthe facility was not in substantial compliance, is the penalty imposed — $7,500
per instance — reasonable?

Discussion

1. The facility was not in substantial compliance with 42
C.F.R. § 483.25(h) because its staff did not provide a
vulnerable resident with the supervision and assistive
devices she needed to transfer safely from her
wheelchair to her bed.”

Program requirements. So that each resident can attain or maintain the highest
practicable physical, mental, and psychosocial well-being, in accordance with his or her
comprehensive assessment and plan of care, the “quality of care” regulation mandates
that the facility “ensure” that each resident’s environment remains as free of accident
hazards as possible and that each resident receives adequate supervision and assistive
devices to prevent accidents. 42 C.F.R. § 483.25(h). The facility must therefore
eliminate or reduce a known or foreseeable risk of accident “to the greatest degree
practicable.” Del Rosa Villa, DAB No. 2458 at 7 (2012), aff’d, Del Rosa Villa v.
Sebelius, No. 12-71685 (9th Cir. 2013); Clermont Nursing & Convalescent Ctr., DAB
No. 1923 at 9-10 (2004), aff'd, Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F.
App’x. 900 (6th Cir. 2005); accord, Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007)
(holding that the facility must “take all reasonable steps to ensure that a resident receives
supervision and assistance devices designed that meet his or her assessed needs and
mitigate foreseeable risks of harm from accidents”). A facility is permitted the flexibility
to choose the methods it uses to prevent accidents, but the chosen methods must
constitute an “adequate” level of supervision under all the circumstances. Briarwood,
DAB No. 2115 at 5; Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff'd,
Windsor Health Ctr. v. Leavitt, No. 04-3018 (6th Cir. 2005).

Resident 3 (R3). R3 was an 88-year-old woman, suffering from a long list of ailments,
including congestive heart failure, chronic kidney disease, anemia, diabetes, advanced
vascular dementia, and depressive disorder. She resided in an assisted living facility until
June 5, 2012, when she was hospitalized for heart failure and renal insufficiency. After a
three-day hospital stay, she was admitted to the facility on June 8, 2012. CMS Ex. 6 at 1;
CMS Ex. 9 at 7; CMS Ex. 13 at 1; P. Ex. 11 at 2.

At the time of her admission, R3 was 5 feet 6 inches tall and weighed 218 pounds. CMS
Ex. 7 at 7. She required extensive assistance for most activities of daily living, including
the assistance of two or more people for moving in bed, transferring from bed to chair or

My findings of fact/conclusions of law are set forth, in italics and bold, in the
discussion captions of this decision.
wheelchair, and transferring from sitting to standing. CMS Ex. 7 at 5-6. Her balance was
poor; her gait was unsteady. CMS Ex. 7 at 6; CMS Ex. 12 at 6. She performed poorly on
her mental status interview. She did not know the day, month, or year. She was able to
repeat only one of three words spoken to her and could later remember that word only
after cueing. She had difficulty focusing attention. CMS Ex. 7 at 2,3.

On June 10, the facility’s director of physical therapy, Tamara Waller, assessed R3’s
functional capacity. The resident could stand for ten seconds “with great
encouragement” but had shortness of breath and tired “very quickly.” Her lack of
endurance “has affected her balance in sitting and standing,” according to Therapist
Waller’s assessment. The therapist also reported that R3 was oriented to person only
(i.e., she knew who she was but did not know where she was and did not know the
day/date/time). She had no safety awareness. CMS Ex. 13 at 1-2. A June 12 therapy
screen described moderate hearing loss and impaired cognition and communication but
also indicated that R3 was able to communicate basic wants and needs. CMS Ex. 13 at 5;
P. Ex. 11 at 1.

R3’s care plan entries, dated June 19, recognized that she had an unsteady gait, lost her
balance, and required staff assistance for transfers. Among other instructions, the plan
told staff to provide her with rest periods “as needed and/or tolerated,” to provide her
with assistive mobility devices as recommended by therapy, and to report any unsafe use.
CMS Ex. 12 at 6.

Ten days later, on June 29, Physical Therapy Assistant Nikki Jones reported that R3 was
not progressing as well as expected. Her cognitive and memory issues hindered her
progress. Assistant Jones described R3’s strength and endurance as “poor.” She
continued to need the assistance of two people to transfer from sitting to standing, and
needed visual and tactile cues to stand upright. She stood with a “forward lean” and had
difficulty maintaining correct posture. CMS Ex. 13 at 9; P. Ex. 11 at 6.

On July 2, Certified Occupational Therapy Assistant Debbie Frank reported that the
resident had been working on strengthening her upper body to enhance her ability to care
for herself. She was able to “perform short distance ambulation” to and from the toilet.
However, Therapy Assistant Frank also reported that the resident was hard of hearing and
“it is difficult, at times, to be sure [R3] totally is comprehending because she makes the
same verbal response to mostly everything, ‘Oh, yeah.”” Therapy Assistant Frank also
reported that, on some days, R3 required more encouragement. CMS Ex. 13 at 10; P. Ex.
11 at 10.

Notably, in light of what happened later that day, R3 had no complaints of pain during
her July 2 therapy session. CMS Ex. 6 at 3; CMS Ex. 9 at 7.
Three days later, the occupational therapist reiterated that the resident was hard of
hearing and appeared to have underlying dementia. CMS Ex. 13 at 11.

The incident. On the evening of July 2, Nurse Aide Deborah Lawrence was attempting to
transfer R3 from her wheelchair to her bed. Nurse Aide Lawrence reported that she “was
told” by another aide that R3 could stand and pivot in order to get into bed. After several
unsuccessful attempts, R3 refused to try again, complaining that she was “too tired to get
up.” So Nurse Aide Lawrence sought assistance from Nurse Aide Annie White. The
aides decided to use a lifting device, called the Sara Lift. CMS Ex. 6 at 3; CMS Ex. 9 at
4,7; CMS Ex. 10; P. Exs. 7,8.

Unlike some lifts, the Sara Lift — also referred to as a sit-to-stand lift — requires the
resident’s active participation. The device has a strap that goes behind the resident’s
back, above and horizontal to the waist, and then up the sides where staff fasten it to
“patient support arms.” Attached to those support arms are grab handles that the resident
must grip and hold. CMS Ex. 9 at 7; CMS Ex. 11. The manufacturer’s instructions warn
that a professional assessment should be carried out for patients who cannot hold on with
one or both hands and “[f]ailure to do so could result in injury to the patient or operator.”
CMS Ex. 11 at 2.

Photographs that accompany the manufacturer’s instructions show that the resident grips
the grab handles in front of her, leaves her knees bent, and leans back into a somewhat
narrow strap that should be placed relatively low on the back, a couple of inches above
the waist line but well below axilla (armpit) level. CMS Ex. 11 at 4. For residents who
are not capable of holding on to the hand grips as required, the instructions direct staff to
support the resident’s arms in front of her body during the lift. Safety also dictates that
the strap remain in the proper place on the resident’s back. The instructions warn, for
example, that nylon nightdresses can be slippery, causing the sling to ride up the back,
which causes pressure under the arms.° In that case, someone should hold the sling in
position while lifting and lowering the resident. CMS Ex. 11 at 5.

The aides put the lift in place and, according to their statements, they showed R3 where
and how to hold her hands.* They told her not to let go. R3 grasped the handgrips as

> We know that R3 was wearing a nightgown at the time of the incident, but we don’t
know its fabric. Tr. 161-62.

* The nurse aides’ written statements were not prepared until August 6, 2012, after the
survey and over a month after the incident occurred. This suggests that the statements
were drafted in anticipation of an adverse action, and were therefore more likely to be
self-serving, omitting any potentially damaging admissions. The nurse aides should have
written statements as part of the investigation, but Petitioner produced only these, which
were written a month after the facility completed its investigative report. CMS Ex. 9.
Nurse Aide Lawrence, who was operating the lift, turned it on, lifting the resident out of
her wheel chair. But R3 never made it to a standing position. Nurse Aide Lawrence later
described her as “flopping up and down while on the lift.” In mid-air, with knees still
bent, she announced that she “could not do it,” let go of the handgrips, and started to fall.
Nurse Aide White managed to grab the back of her pants and lowered her into the
wheelchair. After some time in the chair, R3 was finally able to stand, pivot and get into
bed, with the assistance of the two aides and a gait belt.” CMS Ex. 6 at 3; CMS Ex. 9 at
4; CMS Ex. 10; P. Ex. 12 at 12.

The next morning, R3’s shoulder was swollen and tender, and she cried out in pain when
a nurse aide attempted to lift her arm. CMS Ex. 6 at 3-5; CMS Ex. 9 at 4-5, 7. X-rays
showed a fracture of the mid-clavicle. CMS Ex. 9 at 2,3, 7.

The facility concluded that the “downward force of her weight onto the strap under the
axilla [armpit] is directly related to the fracture.” CMS Ex. 9 at 8. This conclusion seems
consistent with the manufacturer’s warnings about the danger of the sling riding up and
causing pressure under the resident’s arms.

Substantial noncompliance. No matter how frail, a resident should not be injured when
moving (or being moved) from her wheelchair into her bed. That R3 sustained serious
injuries while performing what should have been a routine transfer strongly suggests that
the facility did not “take reasonable steps to ensure that [she] receiv[ed] supervision and
assistance devices designed to meet [her] assessed needs and to mitigate foreseeable risks
of harm from accidents.” See Clermont Nursing & Convalescent Ctr., DAB No. 1923 at
9-10. Petitioner faults CMS for not establishing what the nurse aides did wrong and
argues that CMS changed its position as to what those purported errors were. P. Post-hrg.
Br. at 1. But CMS has no obligation to explain what went wrong; rather, Petitioner must
establish that the facility employees acted properly, providing R3 with the supervision
and assistive devices she needed to keep her safe. Petitioner has not done so here.

> A gait belt is a thick belt that is wrapped around the resident’s waist and cinched
tightly. Staff hold onto the belt, instead of a resident’s arm or clothing, to support the
resident and prevent falls. CMS Ex. 27 at 6 (Koh Decl. § 17).
Petitioner did not produce relevant written policies regarding resident transfers, so I must
look to other sources to determine the methods the facility had in place to prevent
accidents while transferring its vulnerable residents.° An August 8, 2011 document
summarizes the training the facility provided to its nurse aides. In a program that
addressed “proper resident transferring,” the facility instructed staff to “[b]e sure to refer
to the transfer sheets for each resident for proper transferring method,” and warned (in
capital letters):

DO NOT ATTEMPT TO TRANSFER A RESIDENT IN
ANY WAY OTHER THAN WHAT IS LISTED ON THE
TRANSFER SHEET.

P. Ex. 13 at 4. The document then tells staff where the transfer sheets are kept (in front
of restorative books on both units).

The facility’s director of nursing (DON), Judy Simmons, confirmed that the facility kept
a book on each unit that listed each resident, her room number, and her appropriate
method of transfer. She confirmed that nursing staff were supposed to check that list
before attempting to transfer a resident. Tr. 174-75.

But, here, the nurse aides did not consult the transfer list. According to Nurse Aide
Lawrence, she decided to try “stand-and-pivot” because another nurse aide suggested it.
P. Ex. 8. Even though R3’s assessment called for a two-person assist with transfers,
Nurse Aide Lawrence initially attempted to do it without additional assistance. CMS Ex.
7 at 5; CMS Ex. 10 at 2. In fact, it appears that she did not assist the resident at all, but
positioned the chair “and asked her to stand to get into the bed,” which the resident
attempted to do. CMS Ex. 9 at 4; CMS Ex. 10 at 2; P. Ex. 8; see CMS Ex. 27 at 3 (Koh
Decl. § 7). Only after R3 failed repeatedly in those efforts did Nurse Aide Lawrence ask
Nurse Aide White to help.

® The record includes just one general policy that is titled “Use of Mechanical Lifts,”
which I find unhelpful. CMS Ex. 29 at 4. It says that nursing staff will use mechanical
lifts for “residents who need repositioning that requires a mechanical lift” and that the
type of lift used “depends on the resident’s size, condition, and other needs.” But the
procedures listed seem to describe a more passive lift; they do not correspond to the Sara
Lift instructions. For example, they refer to supporting the resident’s legs “‘as the resident
and lift are moved away from the bed.” For the Sara Lift, the resident’s feet are placed
on a foot rest and the knees are positioned against a “knee reaction pad,” neither of which
are referred to in this policy. CMS Ex. 11 at 5.
How they decided to use the Sara Lift is a mystery; each nurse aide attributes that

decision to

the other. Nurse Aide Lawrence claimed that Nurse Aide White “instructed

me to get the standup lift.” CMS Ex. 10 at 2; P. Ex. 8. Nurse Aide White, on the other
hand, wrote that Nurse Aide Lawrence approached her and asked for help putting R3 on

the Sara Li
Ex. 7.

ft, which suggests it was Nurse Aide Lawrence’s idea. CMS Ex. 10 at 1; P.

Had they consulted the transfer list, they’d have seen that the Sara Lift was not an
approved method of transfer for R3. Although the facility did not produce the transfer

Physical T!
97).
According

been trans:
Koh is pro!

ist instructions, and its witnesses were not completely consistent in describing what
those instructions said, no one has claimed that they included the Sara Lift. According to
DON Simmons, R3 was supposed to be transferred by means of a gait belt. Tr. 176.

erapist Waller claimed that R3 was assessed for transfer using the stand-and-

pivot method. She did not mention the use of a gait belt. P. Ex. 20 at 2 (Waller Decl.

to David Koh, a Board-certified geriatric clinical specialist, R3 should have
erred with the stand-and-pivot augmented by a gait belt. Clinical Specialist
bably correct inasmuch as his opinion incorporates the testimony of both

facility witnesses, and the nurse aides used this method when, eventually, they managed

to complete R3’s transfer from wheelchair to bed. CMS Ex. 27 at 6 (Koh Decl. § 17).

Petitioner dismisses the significance of the transfer lists, however, suggesting (in a

footnote) tl

at the nurse aides “were apparently not aware” that they were supposed to

consult the transfer list and that the August 8 training directive —““DO NOT ATTEMPT

TO TRAN;

SFER A RESIDENT IN ANY WAY OTHER THAN WHAT IS LISTED ON

THE TRANSFER SHEET”—“did not find its way into any identifiable policy.” P. Post-

hrg. Br. at

© Petii

7n.2. [reject Petitioner’s assertion for several reasons:

tioner did not produce policies explaining how staff would know which

method of transfer to use for a particular resident, so I am not inclined to accept its
unsupported statements as to the contents of such policies;

e DON Simmons confirmed the existence of the transfer lists and testified that staff
were supposed to check the appropriate list before attempting to transfer a resident

(Tr.

174-75);

e Why have the lists if staff were free to ignore them?

e Staff training should reflect the facility’s policies and procedures and should be
uniformly applied; staff who miss training must learn and follow the instructions

that

were presented at training.
Determining which methods of transfer are safe for a severely disabled resident, like R3,
requires a professional assessment. According to DON Simmons, the facility’s physical
therapy and nursing staffs collaborated to make those determinations. Tr. 174. Yet
Petitioner now argues that the nurse aides, on their own, were capable of deciding which
transfer method to use. I do not accept that the nurse aides were free to select a transfer
method that was not listed on R3’s transfer sheet. Because the Sara Lift was not listed as
an approved method of transfer, and no evidence suggests that facility professionals ever
assessed its safety for R3, the nurse aides should not have employed it. Thus, even if,
after-the-fact, the Sara Lift proved to be a safe method of transfer for R3 (which it did
not), I would still find substantial noncompliance because unqualified staff used a
transfer device that facility professionals had not determined to be safe.

Petitioner argues that its professionals were not required to assess the safety of the Sara
Lift because R3 was weight-bearing, “able to perform a stand-pivot transfer with minimal
assistance of two,” and capable of holding on to hand grips. P. Post-hrg. Br. at 3-5. Its
professional employees echo this opinion. P. Ex. 16 at 1-2 (Lapacak Decl. § 3); P. Ex. 17
at 2-3 (Ward Decl. § 8); P. Ex. 20 at 4 (Waller Decl. § 16). CMS presents the testimony
of its own health care professionals who maintain that nurse aides are not competent to
assess the safety of a particular lift and should not have used the Sara Lift without a
professional assessment. CMS Ex. 25 at 2-3 (Jones Decl. § 5); CMS Ex. 27 at 4-5 (Koh
Decl. §§ 11-15).

I reject Petitioner’s position. R3’s abilities to stand and pivot (which she could do only if
she had enough assistance) and to hold on to hand grips (which she evidently could not
be relied upon to maintain) were only two of multiple factors that should have been
considered in assessing the safety of the Sara Lift. Did R3 have the cognitive ability to
understand and follow directions? Could she remember to keep her hands in place? Both
Physical Therapy Assistant Jones and Occupational Assistant Frank had recently
questioned her ability to understand instructions. CMS Ex. 13 at 9, 10. Would she panic
if placed in an unfamiliar device? See P. Ex. 6 at 15 (noting that residents who become
frightened during transfer in a mechanical lift may exhibit resistance movements that can
result in avoidable accidents); Tr. 94. Was she able to hold on for the necessary length of
time? Even if capable of performing the necessary tasks during a morning physical
therapy session, would she still be capable late in the day when she was tired? If she
required a two-person assist in order to stand safely, does the Sara Lift require the
assistance of three — one to operate the lift and two to assist R3 in standing?” Perhaps the

T Although Petitioner suggests that “[b]oth [nurse aides] remained beside” R3 (P. Post-
hrg. Br. at 6), the configuration of the lift made that impossible. As the photographs and
diagrams show, the machine stands between its operator and the resident. CMS Ex. 11.
The operator would not be in a position to assist if the resident experienced problems, as,
indeed, occurred here. With R3 flailing, Nurse Aide Lawrence was not able to do
anything more than to lower the lift. CMS Ex. 10 at 2; P. Ex. 8.
10

Sara Lift could have been a safe method of transfer — provided R3 understood and
remembered what to do and did not panic — but the nurse aides were not competent to
make that determination. Qualified professionals, operating in a safe environment,
should have determined whether the lift was appropriate for R3, and, if they determined it
was appropriate, they should have familiarized her with its use. CMS Ex. 27 at 4-5 (Koh
Decl. §§ 12-15).

Petitioner’s witnesses are less than forthright in describing R3’s cognitive abilities. In an
effort to establish that, notwithstanding her dementia, she was able to understand and
follow directions, they cherry-pick the evidence. For example, Physical Therapist Karma
Lapacek claims that R3 was “oriented X2 or X3 throughout her stay... .” P. Ex. 16 at 3
(Lapacek Decl. § 10). But she disregards the physical therapy assessment indicating that
R3 was only oriented to person. CMS Ex. 13 at 1. Only one nursing assessment, and no
physical therapy assessment, indicates that R3 was fully oriented. P. Ex. 12; CMS Ex.
13. For the most part, R3 is assessed as “oriented X2,” which is hardly a ringing
endorsement of her abilities to remember and to act safely. When “oriented X2,” she
required “frequent direction” in “several situations” regarding cognition, recall, and
safety/judgment. CMS Ex. 13 at 3. Further, Physical Therapist Lapacek disregards the
well-documented finding that R3’s abilities to focus attention and remember fluctuated
significantly. CMS Ex. 7 at 3; CMS Ex. 8 at 3.

Dr. Joseph L. Ward, the facility’s medical director, and DON Simmons cite notes that
describe R3 as “bright” and “spry,” with an “excellent sense of humor.” P. Ex. 17 at 2
(Ward Decl. § 6); P. Ex. 18 at 2-3 (Simmons Decl.§ 10). But those notes describe R3 as
she was months earlier, before her hospitalization for heart failure and renal
insufficiency. R3’s condition had unquestionably deteriorated and those notes do not
accurately reflect her mental state on July 2, 2012.

Petitioner claims that the two nurse aides “had been trained numerous times in transfer
lifts” and used the Sara Lift “in accordance with the manufacturer’s instructions.” P.
Post-hrg. Br. at 2,7; P. Ex. 19 at 2 (Voigtmann Decl. § 6). I see no reliable evidence to
support these claims. The nurse aides had not performed this particular transfer before.
Tr. 88. Based on the training sign-in sheets Petitioner submitted, it seems that they had
minimal training in performing transfers of any kind. And, even for the few sessions they
attended, Petitioner has not established what the training included or that it was effective.
Specifically:

e The sign-in sheets show that neither aide attended a May 9, 2011 Transfer Safety
Workshop. P. Ex. 13 at 1-2.

e Nurse Aide White’s name appears on an apparently random “attendance record,”
but that document is undated, and includes no program title or any other
information. P. Ex. 13 at 3.
11

e As noted above, Petitioner concedes that neither aide attended the August 8, 2011
program on “proper resident transferring,” and their names do not appear on the
attendance record. This is virtually the only training document that includes a
relevant summary of the topic presented. P. Ex. 13 at 4.

e Nurse Aide White apparently attended a September 21, 2011 “annual safety fair,”
but the record includes no information as to what the program entailed. P. Ex. 13
at 5-12.

e Nurse Aide Lawrence’s name appears on only one training attendance record, a
November 16, 2011 in-service on “new mechanical lift,” but, again, nothing in the
record describes the content of this training or even the type of lift referred to in
the program title. Under “summary,” where one would expect to see a description
of the training, someone wrote “flu shots,” which I find perplexing and which
Petitioner has not explained. P. Ex. 13 at 15.

e Neither aide is listed among the attendees at a January 9, 2012 program titled:
“Viking M (Mechanical Patient Lift).” P. Ex. 13 at 19.

e The nurse aides did not attend an April 10, 2012 “transfer workshop make-up.” P.
13 at 26.

I find no evidence establishing that the facility’s physical therapy professionals, or any
other qualified person, had ever assessed whether these aides were able to use the Sara
Lift properly. See, e.g., CMS Ex. 9 at 8. I do not accept Petitioner’s claims that, in fact,
the nurse aides operated the Sara Lift correctly when they attempted to transfer R3. Even
though they were the sole witnesses (besides R3) to what transpired, the nurse aides did
not testify. Instead, Petitioner relies on the statements of others, who were not there and
are not in any position to know what the nurse aides did. See, e.g., P. Ex. 20 at 4 (Waller
Decl. § 16). At the hearing, DON Simmons claimed, for the first time, that during her
investigation of the incident, she asked the nurse aides to demonstrate how they applied
the lift, and they applied it correctly. Tr. 182. I did not find this credible. Petitioner
produces no notes reflecting such a demonstration. DON Simmons did not mention this
in her direct testimony. Her investigative report does not say that the nurse aides
properly demonstrated use of the lift. In fact, following her investigation, the facility
directed the therapy department to provide the aides involved in the transfer with one-on-
one in-service training, which should not have been necessary if they had already
demonstrated their proficiency with using the lift. CMS Ex. 9 at 7-8.

The more reliable evidence suggests that the nurse aides made some serious mistakes.
First, Nurse Aide Lawrence plainly did not understand R3’s limitations. She initially
directed the resident to transfer from wheelchair to bed without any assistance, or, at
12

most, with only a one-person assist. CMS Ex. 10 at 2. Second, the nurse aides’ own
written descriptions of their actions omit some critical factors. While they were careful
to describe the hand grips, they did not mention the back strap at all. CMS Ex. 10; P.
Exs. 7,8. I see no evidence that they properly positioned the strap, made sure that it
remained in place, or even that they recognized the importance of keeping it low on the
back, away from the armpits. Given her injuries, it seems likely that they did not.§
According to the physical therapy notes, R3 required visual and tactile cues in order to
stand upright. CMS Ex. 13 at 9; P. Ex. 11 at 6. Yet, Nurse Aide Lawrence was not in
any position to provide tactile cues, and Nurse Aide White claims that she “showed her
where and how to hold her hands,” but does not mention following up with tactile cues.

Because two nurse aides attempted to transfer a vulnerable resident, by an untested and
unapproved means, the facility did not reduce a foreseeable risk of accidents to the
greatest degree practicable and was not in substantial compliance with 42 C.F.R.

§ 483.25(h).

2. The penalty imposed — $7,500 per instance — is reasonable.

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

I consider whether the evidence supports a finding that the amount of the CMP is at a
level reasonably related to an effort to produce corrective action by a provider with the
kind of deficiencies found, and in light of the section 488.438(f) factors. I am neither
bound to defer to CMS’s factual assertions nor free to make a wholly independent choice
of remedies without regard for CMS’s discretion. Barn Hill Care Ctr., DAB No. 1848 at
21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks,
DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1683 at 8 (1999).

8 The investigative report suggests that DON Simmons may not have fully understood
how to use the lift properly. She describes an incorrect — and potentially dangerous —
positioning of the strap. She writes: “This lift has a strap that goes behind the back
under the axilla... .” CMS Ex. 9 at 7. As the manufacturer warns, the strap must stay
well below the axilla — closer to the waist — to avoid causing excessive pressure under the
arms. CMS Ex. I1 at 5.
13

Here, CMS imposed a penalty of $7,500 per-instance, which is in the middle-to-higher
range for a per-instance CMP ($1,000-$10,000) and is modest considering what CMS
might have imposed. 42 C.F.R. § 488.408(e)(1)(iv); see Plum City Care Ctr., DAB No.
2272 at 18-19 (2009) (observing that even a $10,000 per-instance CMP can be “a modest
penalty when compared to what CMS might have imposed”).

The facility has a significant history of substantial noncompliance. During its previous
annual survey, completed May 27, 2011, it was also out of substantial compliance with
multiple program requirements, including 42 C.F.R. § 483.25(h). Its deficiencies also
caused serious actual harm to one of its residents, fracture of her cervical spine. CMS
Ex. 28. Petitioner claims that its earlier deficiency “was not of the same nature” as that
cited here. P. Ex. 19 at 3 (Voigtmann Decl. § 8)” But sections 488 .438(f) and 488.404
do not require that the circumstances underlying the deficiencies be identical. All of the
historical substantial deficiencies should be considered, with even greater weight attached
to those similar to the deficiencies cited for which the penalty is imposed (‘in general and
specifically with reference to the cited deficiencies”). Both the 2011 and 2012 surveys
found multiple serious deficiencies, which included the facility’s failure to ensure that its
residents received adequate supervision and assistive devices to prevent accidents, in
violation of 42 C.F.R. § 483.25(h). Thus, the facility’s history, by itself, justifies a
significant penalty.

Petitioner does not claim that its financial condition affects its ability to pay this
relatively small CMP.

With respect to the remaining factors, the facility’s professionals had determined that R3
required a two-person assist with gait belt. Yet, the nurse aides responsible for her care
did not know this and did not follow the procedures the facility had in place for finding
out the approved method of transfer. On their own, they decided to attempt a transfer that
they had never before performed, using a mechanical lift for which the demented and
tired resident had never been assessed, and with which she was unfamiliar, resulting in an
accident and serious injury. The facility is culpable for their actions.

I therefore find that the $7,500 per-instance CMP is reasonable.

° The 2011 deficiency involved a seriously demented resident with a history of falls who,
without a physician’s order, was administered a sedative medication to which she was
allergic. She fell and sustained the serious injury. CMS Ex. 28 at 7-14.
14

Conclusion

The facility was not in substantial compliance with 42 C.F.R. § 483.25(h). The relatively
small CMP imposed — $7,500 per-instance — is reasonable.

/s/
Carolyn Cozad Hughes
Administrative Law Judge