Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
|IN THE CASE OF|
Cherrywood Nursing and Living Center,
|DATE: December 13, 2001|
- v -
Centers for Medicare & Medicaid
| Docket No.C-01-171
Decision No. CR845
I sustain the decision of the Centers for Medicare &
Medicaid Services (CMS)(1) to impose a
per instance civil money penalty (CMP) in the amount of $1,500 against
Petitioner, Cherrywood Nursing and Living Center.
Petitioner is a long-term care facility that is located
in Sterling Heights, Michigan. Petitioner is a participant in federally
funded health care programs, including the Medicare program. On October
3, 2000, CMS notified Petitioner that it was imposing a $1,500 CMP against
Petitioner based on an August 17, 2000 survey by the Michigan Department
of Consumer and Industry Services (State survey agency) which found Petitioner
had failed to comply substantially with federal participation requirements
governing long-term care facilities. Petitioner requested a hearing. The
case was originally assigned to Administrative Law Judge Mimi Hwang Leahy.
CMS requested that Judge Leahy allow it to file a a motion for summary
affirmance and suggested a briefing schedule for the motion to which Petitioner
agreed. Judge Leahy adopted the briefing schedule suggested by CMS and
agreed to by Petitioner. The case was reassigned to me on May 8, 2001.
CMS filed its motion, accompanied by a brief (CMS Br.)
and 24 exhibits (CMS Exs. 1 - 24). Petitioner filed its response and a
counter motion for "summary affirmance" (P. Br.), accompanied by attachments
consisting of copies of five Departmental Appeals Board decisions and
the September 26, 2000 notice of imposition of remedies from the State
survey agency to Petitioner. CMS submitted a reply (CMS Reply Br.). Petitioner
submitted a sur-reply (P. Reply Br.), accompanied by 16 exhibits (P. Exs.
1 - 16). In the absence of objection, I am admitting CMS Exs. 1 - 24 and
P. Exs. 1 - 16 into evidence.
The relevant issues in this case are whether:
III. GOVERNING LAW
The Social Security Act (Act) sets forth requirements for long term care facilities, both skilled nursing facilities and nursing facilities (nursing facility), participating in the Medicare and Medicaid programs, and authorizes the Secretary of Health and Human Services to promulgate regulations implementing the statutory provisions. Act, sections 1819 and 1919. The Secretary's regulations governing nursing facility participation in the Medicare program 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 nursing facility's deficiencies may pose no greater risk to resident health or safety than the "potential for causing minimal harm." 42 C.F.R. § 488.302.
Under the "quality of care" requirement, each resident
must receive and a facility must provide the necessary care and services
to attain or maintain a resident's highest practicable physical, mental,
and psychosocial well-being, in accordance with the resident's comprehensive
assessment and plan of care. 42 C.F.R. § 483.25. Specifically relevant
to this case, a facility must ensure that each resident receives adequate
supervision and assistance devices to prevent accidents. 42 C.F.R. § 483.25(h)(2).
The State Operations Manual (SOM) defines an "accident" to be "an unexpected,
unintended event that can cause a resident bodily injury. It does not
include adverse outcomes associated as a direct consequence of treatment
or care, (e.g., drug side effects or reactions)." CMS Ex. 22.
If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406. One of the remedies CMS is authorized to impose is a CMP (42 C.F.R. § 488.406(a)(3)), including a CMP of from $1,000 to $10,000 per instance of noncompliance (42 C.F.R. § 488.408(d)(iv)) in a case where one or more deficiencies constitute actual harm that is not immediate jeopardy (42 C.F.R. § 488.408(d)(2)(ii)).
The minimum amount to be imposed for a per instance CMP
is $1,000. Id.
If there is a basis for imposing a remedy, an administrative
law judge may not review CMS's choice of remedy or reduce the amount of
the CMP below the minimum amount for the appropriate range of CMPs. 42
C.F.R. § 488.438(e)(1), (2). Moreover, in reviewing the reasonableness
of the amount of a CMP, an administrative law judge can only consider
the factors specified at 42 C.F.R. §§ 488.438(f) and 488.404.
A nursing facility can appeal only from a CMS initial
determination, such as a finding of noncompliance that results in the
imposition of a CMP. 42 C.F.R. § 498.3. A nursing facility is precluded
from appealing deficiencies that are not the basis for a remedy imposed
by CMS. Arcadia Acres, Inc., DAB CR424 (1996); aff'd DAB
No. 1607 (1997).
CMS bears the burden of producing evidence sufficient
to establish a prima facie case. CMS must set forth the basis for its
determination with sufficient specificity for a petitioner to respond
and come forward with evidence related to the disputed findings. The evidence
set forth by CMS must be sufficient to establish a prima facie case that
CMS had a legally sufficient basis to impose a remedy, such as the per
instance CMP imposed in this case. In order for a petitioner to prevail,
the petitioner must then prove by a preponderance of the evidence on the
record as a whole that it was in substantial compliance with the relevant
statutory and regulatory provisions. Hillman Rehabilitation Center,
DAB No. 1611, aff'd Hillman Rehabilitation Center v. U.S. Dept.
of Health and Human Services, No. 98-3789 (D.N.J. May 13, 1999).
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
I make findings of fact and conclusions of law (Findings)
to support my decision in this case. I set forth each Finding below, in
italics, as a separately numbered heading. I explain each Finding in detail.
CMS has submitted a motion for summary affirmance asserting
that there are no genuine issues of material fact in this case. Petitioner
asserts that issues of material fact exist in the case necessitating an
in-person, evidentiary hearing. Petitioner argues that to require it to
respond with extensive briefing places an unfair and expensive burden
on it. Petitioner, however, also moves for summary affirmance, arguing
that, in its motion, CMS failed to establish that a deficient practice
Summary disposition is appropriate only where a disposition
is made based on material facts which are not in dispute. Summary disposition
cannot be made where material facts are contested, because due process
considerations require an evidentiary hearing to decide contested facts.
While inferences made from facts which are averred to support a motion
must be made in a manner most favorable to the party that opposes the
motion, it is not sufficient for a party simply to state that it disputes
allegations of fact in order to avoid possible entry against it of summary
disposition. That party must describe the asserted facts credibly in order
to establish a dispute.
I believe that it is appropriate to decide this case based
on the parties' motions and briefs. In its response and sur-reply, Petitioner
did not offer any affirmative evidence or even argument which credibly
established a genuine dispute as to the facts, nor did it demonstrate
that the disputed facts it alleged had a material bearing on the outcome
of this case. See Southfield Medical Clinic, DAB CR667 (2000);
Melvin C. Murphy, M.D., P.C., DAB CR590 (1999). Moreover, as I
find and discuss below, CMS demonstrated, and Petitioner did not credibly
deny, that no genuine issues of material fact exist with respect to the
deficiency at issue or the amount of the CMP.
Finally, I deny Petitioner's motion for "summary affirmance," as I find below that CMS did establish that a deficiency existed.
CMS alleges that Petitioner caused actual harm to one
of its residents, Antonia B., when on at least two occasions a nursing
employee transferred Antonia B. from her bed to a geri chair using a one-person
transfer method where her care plan required a two- to three-person assist
to provide adequate support and positioning. CMS further alleges that
the transfer on both occasions resulted in injury to Antonia B.'s head
causing actual harm. The record supports CMS's allegations, and Petitioner
has not presented any affirmative evidence or argument that would establish
a genuine dispute as to the facts or would materially affect the outcome
of the case.
In June 2000, Antonia B. was an 89- or 90-year old(2)
resident of Petitioner's facility. CMS Ex. 3, at 3; CMS Ex. 11; CMS Ex.
13, at 1. Antonia B.'s medical conditions included urinary tract infection,
urosepsis, hypertension, peripheral vascular disease, hysterectomy, osteomyelitis,
senile dementia, tympanosclerosis, hypothyroidism, osteoporosis, anemia
and a left distal femur fracture. CMS Ex. 13, at 1 - 3; CMS Ex. 7, at
2; CMS Ex. 11; CMS Ex. 3, at 3. Antonia B.'s care plan cautioned Petitioner's
staff that Antonia B. had "[i]mpaired physical mobility functions secondary
to physical deconditioning associated with recent left femur fracture."
CMS Ex. 13, at 3. Her care plan further cautioned Petitioner's staff to
"[p]rovide and maintain safe environment during transfer from bed to cardiac
chair (geri chair) - vice versa (resident is total dependence with transfer).
Support the affected leg (left side) during transfer. Transfer resident
with 2-3 physical caregivers to provide adequate transfer motion." Id.
On June 23, 2000, one of Petitioner's nursing employees,
Yolanda B., transferred Antonia B. from her bed to a geri chair using
a one-person transfer method. Following the transfer, Yolanda B. noticed
Antonia B. was bleeding from her head. CMS Ex. 14, at 1; CMS Ex. 16, at
1. Yolanda B. noted that there was no blood on Antonia B.'s bed linen.
Id. Antonia B.'s physician, who examined her on June 23, 2000,
noted that "[s]he struck the back of her head resulting in approximately
1.5 - 2 cm puncture type laceration to the posterior scalp . . . [r]esident
is also to be sent to the hospital to receive staples to the posterior
scalp laceration." CMS Ex. 11. At the hospital, four staples were placed
in Antonia B.'s head to close the scalp laceration. CMS Ex. 12, at 4.
It is apparent from my review of contemporaneous documentation
surrounding this incident that Petitioner's staff's assumption was that
Antonia B.'s injury was caused by her transfer. In investigating the incident,
two of Petitioner's registered nurses surmised that the "G-chair 'head'
is composed of bar (bracket side to side). This may 'cause' the laceration
of resident (sic) head," and they noted that Yolanda B. "transferred resident
by herself instead of two physical assist as instructed." CMS Ex. 16,
at 3. In an incident report, it was noted that "Yolanda . . . stated she
was aware that this resident requires multiple staff members to transfer
her out of bed." Id. at 2. Moreover, in a corrective action form
directed at Yolanda B. after this incident, Petitioner's nursing administrator
noted that Yolanda B. "failed to provide and maintain [a] safe environment
during transfer activity that led to laceration of the head of [Antonia
B.]. You're well aware and [have] been told by other co-workers not to
transfer resident by 1 person yourself." CMS Ex. 18, at 1. Yolanda B.
was also told that "Further re-occurrence of any 'compromise' residents
safety may result in disciplinary action up to including employment termination."
On June 26, 2000, three days after Antonia B.'s first
injury, Antonia B. suffered a hematoma and a gash in the back of her head
when another nursing employee, Louise W., transferred Antonia B. from
her bed to a geri chair, again using a one-person transfer method. CMS
Ex. 3, at 4; CMS Ex. 7, at 3; CMS Ex. 12, at 4; CMS Ex. 15. Immediately
following the incident, Louise W. admitted to a member of Petitioner's
staff that she had transferred Antonia B. using a one-person cradle method,
and noted that there was no blood on the sheet or on the pillow. CMS Ex.
14, at 4; CMS Ex. 15, at 1, 3 - 4. In a written statement dated June 26,
2000, Louise W. admitted that she alone transferred Antonia B., even though
on June 24, 2000, she had been told that Antonia B. was to be a two-person
transfer because of her prior injury. CMS Ex. 15, at 3. Louise W. asserted
that she did this because none of her co-workers were available to assist
her. Id. Louise W. also stated that she did not see any blood on
her clothes or Antonia B.'s pillow after she put Antonia B. in her chair
and only saw blood when she began combing Antonia B.'s hair. Id.
at 3 - 4. Initially Louise W. stated she believed the bleeding was from
the old injury and due to pressure from being lifted. Id. at 4.
However, she was later told it was a new injury. Id. Antonia B.
was again sent to the hospital where she received two staples in the left
side of her head to close the laceration. CMS Ex. 14, at 4.
After the June 26, 2000 incident, a police report was
filed alleging that Petitioner either abused or neglected Antonia B, resulting
in the two incidents. CMS Ex. 12. The police determined that there were
no signs of criminal neglect or abuse regarding these two incidents. CMS
Ex. 9. However, the police determined that the techniques used to move
Antonia B. were poor, in that she had very fragile skin and advanced bone
density deterioration. Id. The police determined that "two different
CENAs had handled the resident improperly causing the cuts on 06-23-00
and 06-25-00." CMS Ex. 10, at 2.
Nursing facilities must ensure that each of their residents
receives adequate supervision and assistive devices to prevent accidents.
42 C.F.R. § 483.25(h)(2). To determine compliance with this regulation,
"the relevant inquiry is whether Petitioner's supervision (of whatever
nature and whatever degree) was 'adequate' for the resident's situation."
Heath Nursing and Convalescent Center, DAB CR610, at 4; Woodstock
Care Center, DAB No. 1726 (2000). The regulation does not amount to
strict liability, as an element of reasonableness is inherent in the regulation's
requirements. Woodstock, DAB No. 1726. To ensure adequate supervision,
a facility is not required to do the impossible or to be a guarantor against
unforeseeable occurrences, but it is required to do everything in its
power to prevent accidents. Koester Pavilion, DAB No. 1750 (2000).
I find that Petitioner did not do so here.
Although Petitioner appropriately identified that Antonia
B. was at risk for accidents due to her impaired physical mobility, and
did care plan to provide and maintain a safe environment during transfer
(CMS Ex. 13, at 3), it is apparent that Petitioner did not effectively
implement adequate procedures to ensure that the care plan was followed,
leading me to conclude that Petitioner was not in substantial compliance
with the relevant participation requirement on the dates in question.
See Fairfax Nursing Home, Inc., DAB No. 1794, at 19 (2001).
In this case, the facts show that Antonia B. did not receive adequate
supervision and assistance devices on two occasions, June 23 and June
26, 2000.(3) On those dates, two separate
nursing employees failed to follow Antonia B.'s care plan regarding transfer.
Both nursing employees admitted that they knew Antonia B. required a two-
to three-person transfer, but transferred her without such assistance.
Moreover, after each transfer, it was discovered that Antonia B. had injured
her head in such a way that she had to go to the emergency room where
staples were placed in her head to close the wounds. Despite Petitioner's
assertions that there is no definite proof that the nursing employees'
transfers of Antonia B. on the dates in question led to her injuries (see
P. Reply Br., at 2 - 3, where Petitioner suggests that the injuries could
have been caused by a bar apparatus attached to the back of Antonia B.'s
chair, could have occurred following the transfer, could have occurred
with a two- or three-person assist, or, on June 26, 2000, could have been
caused inadvertently by the nursing employee's fingernail), I find that
a reasonable inference can be made from contemporaneous documentation,
especially given the result of the police investigation, that Antonia
B.'s injuries came about as a result of her transfers, causing her actual
Petitioner, however, argues that because it had identified Antonia B. as at risk for accidents, had care planned to address that risk, hired certified employees, properly trained and evaluated its employees, and responded appropriately when the incidents occurred, that it was not deficient in complying with 42 C.F.R. § 483.25(h)(2). P. Br. at
4 - 6; P. Reply Br. at 5. Specifically, Petitioner asserts
that it should not be cited as out of compliance because its nursing employees
chose to transfer Antonia B. using a method that their nursing supervisors
did not approve, and a method the nursing employees found to be simpler
and safer (although I note that Petitioner has offered absolutely no evidence
to substantiate that a one-person transfer method would be a simpler or
safer method or to indicate in the record where Yolanda B. or Louise W.
have asserted that the one-person transfer method was simpler or safer).
See P. Reply Br. at 2, 4. I find Petitioner's argument to be unpersuasive.
The measures Petitioner took to comply with the regulation did not work
here. Had Petitioner effectively trained and monitored its employees regarding
transfers, and especially had it made sure that an adequate number of
staff were available to assist with Antonia B.'s transfers, Antonia B.
would not have been transferred by a method not recognized in her care
plan. I agree with CMS that whether these employees were not properly
trained, whether they were unaware of the care plan, or whether they had
a practice of ignoring the care plan, Petitioner should have identified
that a problem existed and taken immediate measures on a facility-wide
basis to eliminate the problems before they caused harm to a resident.
Petitioner argues that CMS must show a deficient facility
practice that violates the requirement and is repeated, sustained and
egregious and results from a systemic failure on the part of the facility
to comply with program requirements, not just the isolated conduct of
two employees acting outside facility policies and procedures. P. Br.
at 4 - 5; P. Reply Br. at 5. Petitioner has not supported its assertions
with citation to the statute or regulation or referenced any case law.
The regulatory standard is that a Petitioner must ensure that each resident
receives adequate supervision and assistance devices to prevent accidents.
It is a violation of the requirement if, in any case, a resident fails
to receive such adequate supervision and assistance devices, and I have
so found in this case. Moreover, here I note that where two employees,
within a three-day period, independently failed to follow Antonia B.'s
care plan, causing her harm, it could even be said that a systemic problem
did exist that Petitioner was deficient in addressing.
Petitioner argues that to make a deficiency determination
strictly on the occurrence of an event, without taking into consideration
a nursing facility's actions both before and after the event, elevates
the regulatory requirements from "substantial compliance" to "strict liability,"
which Petitioner asserts is beyond the intent of the regulations. P. Reply
Br. at 6. Again, I disagree. The issue here is not about strict liability
or about whether Petitioner's actions before and after the incidents were
generally reasonable in light of compliance with the regulation, but,
instead, whether Petitioner provided "adequate supervision" in this instance
to prevent accidents. Any element of "reasonableness" goes only to whether,
in this instance, Petitioner provided adequate supervision to prevent
this resident's accident. Even looking at the actions taken by Petitioner
both before and after the incidents in question, I would not find that
Petitioner provided "adequate supervision," as the measures taken by Petitioner
to get its employees to comply with Antonia B.'s care plan were ineffective.
Petitioner argues further that, in spite of the "temporal connection" between the two incidents, Antonia B.'s injuries were minimal and the scope of harm was limited because she did not sustain lasting harm. P. Reply Br. at 3. First, the law does not require, and Petitioner has nowhere provided support, for its assertion that the actual harm sustained by a resident must be lasting harm for an administrative law judge to uphold a finding of noncompliance. Moreover, I find to be singularly unpersuasive Petitioner's insinuation that due to the "limited" scope of Antonia B.'s injuries it should not be found noncompliant with participation requirements. I believe that two head injuries to a medically compromised 89- or 90-year old resident of a nursing facility, requiring emergency room treatment and the insertion of staples in her head, are not "minimal" harm. These injuries were serious, unacceptable, and preventable, had the employees in question transferred her in accordance with her care plan.
A petitioner's failure to comply substantially with a
federal participation requirement is a basis for CMS to impose remedies
against that petitioner, including a per instance civil money penalty
in the amount of $1,000 to $10, 000 in a case where one or more deficiencies
constitute actual harm. 42 C.F.R. § 488.430; 488.438(a)(2); 488.408(d).
In this case, CMS chose to impose a CMP of $1,500 against Petitioner.
Petitioner has argued that the CMP is not reasonable under 42 C.F.R. §
488.438(f) because: 1) a decision regarding the basis of the imposition
of the CMP has not been reached and should not have been reached without
"proper adjudication of the facts. . ." and Petitioner has not had the
chance to cross-examine CMS's witnesses to determine whether CMS properly
applied the criteria at 42 C.F.R. § 488.438(f) (P. Br. at 11); and 2)
CMS relied on Petitioner's history of noncompliance and Petitioner should
be able to appeal a deficiency finding from a prior survey which was considered
by CMS in making its determination as to the amount of the CMP (P. Br.
at 11 - 12, citing 42 C.F.R. § 488.408(g)(1), which states that a facility
may appeal a certification of noncompliance leading to an enforcement
With regard to Petitioner's first argument, I have found
that an in-person hearing is not indicated in this case, and I have found
further that Petitioner was noncompliant with a participation requirement
causing actual harm, thus authorizing CMS to impose remedies against Petitioner,
including, as here, a per instance CMP. With regard to Petitioner's second
argument, I discuss and dismiss it below, at Finding 4. Moreover, Petitioner
has presented no evidence to refute CMS's evidence that the $1,500 CMP
is reasonable in this case.
I find that the amount of the CMP assessed against Petitioner
by CMS is reasonable. I am not obliged to presume
that CMS has correctly assessed the evidence and factors in setting the
amount of a CMP. Instead, as the hearing before an administrative law
judge is a de novo hearing, I am bound to make an independent determination
as to whether the amount of a CMP set by CMS is reasonable based on the
evidence. See Emerald Oaks, DAB CR801 (2001); Careplex
of Silver Spring, DAB No. 1683, at 18 (1999).
In my independent review of the relevant regulatory factors
set forth at 42 C.F.R. § 488.438(f) and 42 C.F.R. § 488.404, I find that:
Petitioner has not argued that it its financial condition is such that
it cannot pay a $1,500 CMP (42 C.F.R. § 488.438(f)(2)) and CMS has submitted
unrebutted evidence that Petitioner's financial condition was adequate
to pay it (CMS Ex. 23; CMS Br. at 23); Petitioner is culpable in this
instance, for it did not effectively provide Antonia B. adequate supervision
and assistance devices to prevent accidents, resulting in actual harm
to her (42 C.F.R. § 488.438(f)(4)); and Petitioner's deficiency was serious,
leading to isolated actual harm (42 C.F.R. § 488.404(b) and 42 C.F.R.
§ 488.438(f)(3)). These factors alone are enough to lead me to conclude
that the $1,500 CMP, which is at the very low end of the range of per
instance CMPs allowed by the regulations, is reasonable. Moreover, Petitioner
has presented absolutely no evidence to refute the reasonableness of the
amount of the CMP.
In making my decision, I have not considered Petitioner's history of noncompliance (42 C.F.R. § 488.438(f)(1); 42 C.F.R. § 488.404(c)(2)), as I was able to find the CMP to be reasonable without making such a determination.
Petitioner argues that it should
be able to appeal a deficiency from a prior survey cycle, even though
a remedy was not imposed based on that deficiency, where the deficiency
forms part of the basis for CMS's decision to impose a CMP. Specifically,
Petitioner asserts that it should be able to appeal a "G" level violation
from a survey of November 10, 1999, because CMS included it in its computation
of the CMP in this case in considering Petitioner's history of noncompliance
under the regulatory factors. P. Br. at 9 - 11; P. Reply Br. at 7 - 11.
I note first that in my de novo consideration of the CMP in this case I did not need to reach this issue, as I was able to find that the CMP was reasonable without review of Petitioner's history of noncompliance. However, in reviewing Petitioner's arguments, I note that a petitioner may appeal only from initial determinations that result in the imposition of a remedy, such as a CMP. 42 C.F.R. § 498.3. Thus, a petitioner is precluded from appealing deficiencies that are not the basis for a remedy CMS imposed, such as the deficiencies associated with Petitioner's November 10, 1999 survey. Moreover, I agree with CMS that where CMS did not consider findings from the November 10, 1999 survey when deciding to impose a remedy on Petitioner, but only considered the deficiency set forth in the August 17, 2000 survey, no hearing rights exist. Thus, there is no legal authority permitting Petitioner to appeal deficiency findings from the November 10, 1999 survey because it was from a survey cycle unrelated to the one at issue here, and is only relevant in considering the past compliance history of the facility (which, in any event, I have not considered in this case).
Richard J. Smith
Administrative Law Judge
1. When this case was initially docketed, CMS was referred to as the Health Care Financing Administration or HCFA. HCFA has since been renamed the Centers for Medicare & Medicaid Services or CMS. When I refer to anything in the record previously submitted as the Health Care Financing Administration or HCFA, I will refer to it as the Centers for Medicare & Medicaid Services or CMS.
2. It is not clear from the record whether Antonia B. was 89 or 90 years old in June 2000. However, whether Antonia B. was 89 or 90 at the time of these incidents is irrelevant to my decision in this case.
3. In making my decision I am not considering any documentation submitted or conclusions reached during the informal dispute resolution process.
4. Petitioner also raised three issues with regard to the per instance CMP, which it noted were beyond my ability to decide. They are: 1) Whether the rule authorizing the imposition of a per instance CMP was validly promulgated under the Administrative Procedure Act authorizing CMS to create a per instance CMP; 2) whether the per instance CMP rule violates the Act; and 3) whether the Department of Health and Human Services acted in an arbitrary and capricious manner in failing to consider relevant factors necessary to support a reasonable basis for its action when it neglected to adequately consider the regulations' impact on nursing homes and offered no evidence that it attempted to find less costly alternatives. P. Reply Br. at 12. Petitioner is correct that these issues are beyond my authority to decide.