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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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| IN THE CASE OF | |
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Madison Health Care, Inc., |
DATE: July 14, 2005 |
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Centers for Medicare & Medicaid Services.
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Docket No.C-04-383
Decision No. CR1325 |
| DECISION | |
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DECISION I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose civil money penalties of $450 per day against Petitioner, Madison Health Care, Inc., for a period that began on August 1, 2002 and which ran through August 22, 2002. I. Background Petitioner is a skilled nursing facility in Ohio that participates in the Medicare program. Its participation in Medicare is governed by sections 1819 and 1866 of the Social Security Act (Act) and by regulations at 42 C.F.R. Parts 483 and 488. Petitioner was surveyed on or about August 1, 2002 (August survey) in order to determine whether it was complying with Medicare participation requirements. The surveyors, who were employed by the State of Ohio and who conducted the survey on behalf of CMS, concluded that Petitioner manifested nine specific failures to comply substantially with participation requirements. CMS concurred in these findings and, on the basis of them, determined to impose civil money penalties of $450 per day against Petitioner for a period that began on August 1, 2002 and which ran through August 22, 2002. The total civil money penalties that CMS determined to impose against Petitioner is $9,900. Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I scheduled an in-person hearing in the case. CMS then moved for summary disposition. Petitioner opposed the motion. On October 7, 2003, I issued a decision granting summary disposition to CMS. Madison Health Care, Inc., DAB CR1094 (2003). In that decision, I sustained CMS's determination of noncompliance and duration as to one of the nine deficiencies that was identified in the report of the August survey. I found the $450 per day civil money penalties to be reasonable based on what I found were undisputed facts addressing the seriousness of that one deficiency and on additional undisputed facts that established that Petitioner had been found similarly deficient in the past. Petitioner appealed my decision to the Departmental Appeals Board (Board). On June 22, 2004, an appellate panel of the Board issued a decision which remanded the case back to me for a hearing on the merits. Madison Health Care, Inc., DAB No. 1927 (2004). Pursuant to the Board's instructions, I scheduled an in-person hearing. CMS then moved that I postpone the hearing. On October 8, 2004, I issued an order in which I reluctantly postponed the hearing until April 5, 2005. I held the in-person hearing in Cleveland, Ohio, on the rescheduled date. At the hearing, I received into evidence exhibits from CMS consisting of CMS Exhibit (Ex.) 1 - CMS Ex. 47. I received into evidence exhibits from Petitioner consisting of Petitioner (P.) Ex. 1 - P. Ex. 7; P. Ex. 9 - P. Ex. 13; and P. Ex. 16 - P. Ex. 23. I declined to receive from Petitioner exhibits consisting of P. Ex. 8, P. Ex. 14, and P. Ex. 15. (1) Additionally, I heard the cross-examination of several witnesses whose written direct testimony had been received in exhibit form. II. Issues, findings of fact and conclusions of law
The issues in this case are whether:
I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail. Although CMS's findings of noncompliance encompass nine deficiencies, I base my decision in this case - as I did in my previous decision - on the presence of one of them, a failure by Petitioner to comply substantially with the requirements of 42 C.F.R. § 483.25(h)(2).
The regulation in question requires that a facility ensure that each of its residents receives adequate supervision and assistance devices to prevent accidents. In my original decision, I held that the regulation requires a facility to take all measures that are within its power to prevent accidents that are reasonably foreseeable. While not imposing a strict liability standard on a facility, the regulation does impose a heavy burden on the facility to protect its residents from known or knowable accident hazards. In deciding the appeal of my original decision, the Board appellate panel affirmed my analysis of the law. The remaining question, therefore, is whether Petitioner undertook all measures that were within its power to protect residents who were vulnerable to sustaining accidents that were reasonably foreseeable. In my original decision, I held that Petitioner failed to do so. I reach the same conclusion here. CMS's allegations of noncompliance focus on the care that Petitioner gave to two of its residents who are identified as Residents #s 85 and 60 in the report of the August survey. CMS Ex. 1. As concerns Resident # 85, the evidence establishes that, as of the survey, she was suffering from impairments that included Alzheimer's dementia, impaired decision making ability, and loss of balance. CMS Ex. 28, at 9, 11. Petitioner's staff knew that the resident suffered from these problems. The staff concluded that the resident was at risk for sustaining injuries from falls, evidenced by a fall with injuries that the resident sustained in May 2002. P. Ex. 10, at 3. It found that the resident's cognitive problems caused her to be unaware of her own limitations. Id. The staff developed a care plan to address the resident's fall risk. CMS Ex. 1, at 24; CMS Ex. 28, at 3. The care that Petitioner's staff determined was necessary for Resident # 85 included equipping the resident with a merri walker. CMS Ex. 28, at 5. A merri walker is an assistive device that is designed to enable individuals with impaired balance to ambulate. The device envelops the individual in a frame with a base that is wider than the area that is occupied by the individual's legs. P. Ex. 23, at 7; see CMS Ex. 16, at 2. A harness attaches the individual to the device. In theory, a merri walker distributes an individual's weight in a way that makes it difficult for the individual to tip the device over or to fall. But, in this case, Resident # 85 did fall while she was in a merri walker. Twice. On June 22, 2002, the resident fell while she was in the merri walker. Resident # 85 was found to be lying on her left side, still in the merri walker, with the device's harness and body alarm in place. CMS Ex. 28, at 16. The resident suffered two bruised areas by her left eye. Id. On the next day, June 23, 2002, Resident # 85 fell for a second time while she was in a merri walker. On this occasion the resident was found lying face down on the floor. Id. She had fractured her nose. Neither fall was observed by Petitioner's staff. After the June 22 fall, the staff amended Resident # 85's care plan with the phrase "check for proper position and to supervise traffic in the hallway." CMS Ex. 1, at 24. However, nothing in the resident's record or in other exhibits shows that Petitioner's staff actually monitored hallway traffic around Resident # 85 after her first fall or that it provided the resident with close supervision. Resident # 60 is an individual who, at the time of the August survey, suffered from impairments which included Alzheimer's disease and dementia. CMS Ex. 1, at 25. The resident had a history of falls and Petitioner's staff knew that the resident was at risk for falls. It assessed the resident as requiring assistance for transfers, locomotion, and toileting. CMS Ex. 23, at 3. A plan of care written on November 26, 2001 stated that the resident was at risk for injury, noting that the resident was unaware of her limitations and safety needs and that she suffered from osteoporosis. Id. at 8. Petitioner's staff decided to provide Resident # 60 with a pressure alarm in her bed and her chair at all times in order to minimize the resident's risk of falling. CMS Ex. 23, at 9. The idea behind this intervention was that an alarm would sound, thereby warning the staff, whenever the resident attempted to get out of bed or rise from her chair. In theory, the warning given by the alarm would enable the staff to come to the resident's assistance before she fell. Notwithstanding this intervention, the resident sustained falls on November 18, 2001, December 8, 2001, and on April 7, 2002. Id. at 4, 12-13, 15. The resident's pressure alarms failed to sound on all three of these occasions. Id. Concerning the April 7, 2002 fall, Petitioner's staff had failed to check the resident's bed alarm, either on the day before or the day of the fall. P. Ex. 8, at 1. After Resident # 60 sustained her April 7, 2002 fall, Petitioner's staff decided to address the resident's fall risk by checking her alarms daily to ensure that they functioned properly. But, at the August survey, Petitioner's director of nursing acknowledged that the staff had not done so, stating that the facility's policy was to check alarms randomly. CMS Ex. 23, at 8-9, 12-13. In my original decision I held that the undisputed facts established that Petitioner had failed to do all that was within its ability to prevent its residents from experiencing foreseeable accidents. In the case of Resident # 85, I found that the undisputed facts established that Petitioner knew that the resident was at risk for falling while enclosed in a merri walker. That was obvious after the resident experienced her first fall on June 22, 2002. Yet, the staff took no real measures to protect the resident after June 22. I found that the resident's second fall, occurring on June 23, 2002, was foreseeable and was evidence of the facility's failure to take appropriate protective action. In the case of Resident # 60, I found that the undisputed facts established the resident to be an obvious fall risk. The measures that the facility's staff took to protect the resident - installing bed and chair pressure alarms - were ineffective because the alarms didn't operate properly. Petitioner's staff recognized the problem and planned an additional protective measure consisting of checking the resident's alarms daily. But, it did not implement that plan. Nothing happened at the April 5, 2005 hearing that causes me to change my original conclusions. Petitioner introduced no evidence that proved that it was providing Resident # 85 with adequate supervision after her June 22, 2002 fall. Nor did it introduce evidence that proved that it had implemented effective measures to assure that Resident # 60's bed and chair alarms were functioning adequately as of the August survey. Petitioner's sole defense of the care that it provided to Resident # 85 - which it made also in response to CMS's motion for summary disposition - is premised on its contention that a merri walker is an inherently stable device that is very difficult to tip over. Petitioner's post-hearing brief at 11; P. Ex. 23, at 4-5. From this, Petitioner asserts that it had no reason to assume that Resident # 85 was at risk for sustaining falls while using a merri walker. According to Petitioner, the falls sustained by Resident # 85 were flukes, not caused by the resident's instability, but by:
Petitioner's post-hearing brief at 11. There is more than one reason not to accept this argument as justification for Petitioner's failure to supervise Resident # 85 adequately after her first fall while using the merri walker on June 22, 2002. Part of the argument is unsupported by any evidence and rests on pure speculation. More important, Petitioner's argument is irrelevant. There is no way of determining from the record of this case what caused Resident # 85 to sustain her falls on June 22 or June 23, 2002. No one witnessed those falls. It is possible to speculate that the falls were caused by any number of factors: the resident's inherent instability (there is credible evidence that the resident was intermittently unstable while using the merri walker, Tr. at 92-93); the presence of furniture in Petitioner's hallways; or the activities of other residents. But, in fact, it makes no difference what caused the resident to fall on those two occasions. Petitioner's staff was put on notice by Resident # 85's first fall that something in the facility had caused the resident to fall while using the merri walker. All of the possible explanations for that first fall - instability, environmental factors, other residents - were items that were within Petitioner's staff's ability to control. The risks posed by any of these factors for a recurring fall could have been minimized or eliminated entirely had the staff done the one thing that it failed to do, which was to supervise Resident # 85 as she used the merri walker. I accept as true Petitioner's assertion that a merri walker is difficult to tip over. But, obviously, it is not impossible to tip over inasmuch as Resident # 85 was able to accomplish that feat twice on two consecutive days. And, that fact underscores the essential irrelevance of Petitioner's argument. Regardless of the device's inherent stability, Petitioner's staff knew that this resident was at risk while using the merri walker. (2) Petitioner should have addressed the possible causes for the resident's first fall. Once on notice that the resident had fallen while using the merri walker, it was obligated to provide the resident with additional supervision to assure that the fall did not recur. Petitioner failed, both to research the causes for the resident's fall and to provide the resident with the additional supervision that she so obviously needed. In its remand decision, the Board appellate panel suggested that, perhaps, Petitioner's staff should be excused for failing to monitor closely Resident # 85 after her first fall because it determined that the first fall was merely a fluke caused by some unpredictable and unknowable factors. That is the same argument that is made by Petitioner. It boils down to saying that the failure of the staff to monitor the resident closely prior to her first fall gave it the excuse to continue not to monitor the resident closely. When viewed in that way, the argument becomes absurd because it would give Petitioner license to continue to ignore a problem once it becomes manifest. Perhaps Petitioner may be excused for not monitoring the resident closely prior to her first fall, based on its staff's reliance on the assumption that the merri walker was inherently stable. But, the logical props for that assumption were knocked over by the resident's first fall. After that event, the staff could not assess the resident's needs and protect her from additional injury without monitoring her closely while she used the merri walker. Petitioner's argument with respect to Resident # 60 is that the issue of the adequacy of the care that it gave to the resident is "a documentation issue," and not one involving the supervision of the resident. Petitioner's post-hearing brief at 12. Petitioner contends that, in fact, it checked the resident's alarms on two occasions shortly prior to the April 7, 2002 fall and found the alarms to be in working order on these occasions. Id. at 13. But, the issue here is not one of documentation. Nor is it whether Petitioner adequately protected Resident # 60 prior to April 7, 2002. The issue is whether Petitioner implemented the corrective measures that it decided to take after the resident fell on April 7, 2002. Nothing that Petitioner avers addresses the failure by Petitioner's staff to implement those measures that it concluded were necessary to protect the resident, and that is where the staff and Petitioner were deficient. It was the staff that concluded that the resident's alarm batteries needed to be checked daily in order to ensure that they did not fail after April 7, 2002. And, it was the staff that failed to execute on this protective measure. There is no evidence in this case that the staff in fact checked the resident's alarms daily but failed merely to document their actions. (3) It is important to not get side tracked by irrelevant or specious contentions. Resident # 60 was an individual who had fallen multiple times with resulting injuries. Petitioner's staff could have implemented a variety of measures to protect the resident against falling. For example, the staff could have closely monitored the resident. But, for better or worse, it was the staff who decided that the resident needed to be outfitted with bed and chair alarms, in lieu of closely monitoring the resident, so that the staff would know every time that the resident attempted to leave her bed or chair. The Achilles' heel of this approach, as was demonstrated by the fall sustained by the resident on April 7, 2002, was that it worked only as long as the alarms functioned. It was the staff who decided after April 7 that it was necessary to check the functioning of the resident's alarms daily to ensure that they operated correctly. And, it was the staff that failed to carry out this initiative. In its remand decision, the Board appellate panel made much of the parties' focus on the care that Petitioner's staff gave to Resident # 60 prior to April 7, 2002, including the issue of whether alarm checks performed prior to that date were adequate. Implicitly, it criticized my decision because I did not address those arguments. But, as I explained in my previous decision and I reiterate here, what Petitioner may or may not have done for Resident # 60 prior to April 7, 2002 is not a relevant concern. Petitioner's deficiency lies in its failure to ensure that the resident's bed and chair alarms functioned after April 7, when the staff determined that it would be necessary to check the resident's alarms daily so as to guarantee that they operated properly. The Board appellate panel also suggested that there may be a dispute as to the appropriate standard of care governing how frequently bed alarm batteries should be checked. Under this analysis, apparently, Petitioner might be excused for its failure to check the resident's alarms daily if the applicable standard of care does not require such a degree of stringency. I find this possible argument to be irrelevant. It was Petitioner who chose to implement daily checks of the resident's alarms in evident recognition that the alarms were failing to give Petitioner's staff necessary warning of movement by the resident. That was the solution that Petitioner elected to deal with the problem based on its staff's assessment of the resident's needs and the failure of the resident's alarms to perform adequately. The burden therefore lay entirely on Petitioner to explain how alternative actions substituted for this solution in light of its failure to implement it. It provided no such explanation. For example, it provided no basis to show how it was ensuring that the alarm batteries functioned reliably based on whatever schedule it was using to check them. (4) The Board appellate panel also referred to a quotation from the survey report in which it found arguable ambiguity which, according to it, might be resolved in Petitioner's favor. The quoted statement is as follows:
P. Ex. 1, at 31 (emphasis added). The Board appellate panel reasoned that a fact-finder might read this statement as meaning nothing about whether daily checks were performed on Resident # 60's alarm after April 7, 2002, but rather as simply explaining a standard practice at Petitioner's facility of checking all alarms randomly. The Board appellate panel suggested additionally that, because the statement was made, in part, in the past tense, it may have been intended to state what had been done prior to the resident's April 7, 2002 fall rather than to report what practices were done afterwards. The mixing of present and past tenses in the statement adds a small element of ambiguity to it. But, on balance, I do not find the statement to be unclear. The statement recites a facility practice of checking alarms on a random basis. There is no qualification attached to that statement by the assistant director of nursing. There is no assertion that daily checks were being performed for Resident # 60 as of the date of the survey. Nor does the statement, when read in its entirety, suggest that the policy of random checks was a past practice, since abandoned by Petitioner's staff. (5) Moreover, I gave Petitioner the opportunity to offer evidence that its staff did check Resident # 60's alarm batteries daily. It offered no such evidence. CMS's evidence - even if it is not completely airtight - stands unrebutted. Finally, the Board appellate panel suggested that the record might reveal that alternative actions by Petitioner's staff taken in lieu of daily alarm checks would suffice to protect Resident # 60 as well or as much as would have been the case had her alarms been checked daily. Specifically, the Board appellate panel referred to evidence that after April 7, 2002, Petitioner added a device called an "adapter" to the resident's alarm to forestall malfunction. See CMS Ex. 23, at 4; P. Ex. 1, at 31. The Board appellate panel noted that I did not address the issue of the adapter in my original decision, wondering whether I concluded that the evidence regarding the adapter was immaterial or whether I omitted discussing it for some other reason. The issue of the adapter was irrelevant to my previous decision and is irrelevant now. In my original decision, I did not discuss the adapter because Petitioner never made an argument about it. (6) In opposing the motion for summary disposition, it offered no explanation of what an "adapter" is, how it functions, or how it might ensure that the resident's alarms would function correctly. Petitioner did not assert that the adapter provided protection in lieu of alarm checks. Neither does it argue now that the adapter provided some meaningful protection to the resident. It offered no evidence at the April 5, 2005 hearing, and no post-hearing argument, concerning the adapter's purpose, function, or benefits. In fact, it did not mention the adapter at all in its post-hearing brief. See Petitioner's post-hearing brief at 12-13. So, I remain in the dark as to the device's purpose, its function, or as to its possible benefits.
CMS determined that Petitioner's noncompliance with participation requirements, including its noncompliance with the requirements of 42 C.F.R. § 483.25(h)(2), persisted from August 1 through August 22, 2002. In theory, Petitioner might have challenged this determination by offering evidence, as an alternative to its assertion that no deficiencies were extant at its facility, to prove that it corrected all deficiencies prior to August 22. Petitioner did not do so nor did it argue that it corrected its deficiencies, including its noncompliance with the requirements of 42 C.F.R. § 483.25(h)(2), prior to August 22, 2002. Consequently, I sustain CMS's determination that Petitioner remained deficient in complying with the requirements of 42 C.F.R. § 483.25(h)(2) from August 1 through August 22, 2002.
In my original decision, I found that civil money penalties of $450 per day are a reasonable remedy for Petitioner's noncompliance with the requirements of 42 C.F.R. § 483.25(h)(2). I made my decision based on the presence of two factors recognized by regulations as a basis for deciding penalty amounts, the relative seriousness of Petitioner's noncompliance, and its history of noncompliance with the same requirement. I reiterate my previous decision. The seriousness of the noncompliance in this case, coupled with the fact that Petitioner is a repeat offender, is sufficient to justify the penalty amounts. Other considerations that I do not discuss are not irrelevant but, in fact, there is absolutely nothing in the record of this case that would support a conclusion that penalties of less than $450 per day are reasonable. Regulations governing civil money penalties describe the factors that may be considered in deciding the amounts to impose. 42 C.F.R. §§ 488.438(f)(1) - (4); 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). These factors function very much as rules of evidence in prescribing what facts may be relevant to deciding penalty amounts. The factors describe the ambit of what may be considered. Evidence that does not relate to one or more of the factors is irrelevant and may not be considered. But, the factors do not contain any instructions as to what weight ought to be attached to evidence that is relevant. Adjudicating the weight of evidence that falls under one or more factor is left solely to the fact finder under the regulations which establish the penalty setting factors. I base my decision to sustain penalties of $450 per day on the evidence that relates to two regulatory factors consisting of the seriousness of Petitioner's noncompliance and its past compliance history. 42 C.F.R. §§ 488.404; 488.438(f)(1). The evidence relating to Petitioner's noncompliance with 42 C.F.R. § 483.25(h)(2) establishes a serious failure by it to comply with that regulation. 42 C.F.R. § 488.404. It is reasonable to conclude that failure to provide appropriate care to one resident, Resident # 85, caused that resident to be harmed. The resident sustained a broken nose because Petitioner allowed the resident to use a merri walker unsupervised despite her having fallen on the previous day while using the same device. The evidence establishes that Petitioner's failure to comply with the supervision requirement was not isolated. Petitioner has a history of failing to provide adequate supervision to its residents. 42 C.F.R. § 488.438(f)(1). Petitioner was found to have violated the regulation in September 2001, less than a year previous to the episode involving Resident # 85. CMS Ex. 9, at 1. In that case, as is the case here, the noncompliance caused a resident to experience actual harm. Penalties of $450 per day are modest. They constitute only 15 percent of the maximum amount that is allowed for deficiencies that do not cause residents to be placed in immediate jeopardy. 42 C.F.R. § 488.438(a)(1)(ii). Penalties of $450 per day are reasonable here, because they take into account the seriousness of Petitioner's noncompliance, its history of noncompliance, and because they are small in comparison to the total amount that might be imposed for a deficiency of the type that is at issue in this case. CMS alleged that Petitioner was deficient in other respects. I do not find it to be necessary to address the other alleged deficiencies in order to conclude that modest penalties of $450 per day are reasonable. As I have discussed, evidence relating to Petitioner's noncompliance with 42 C.F.R. § 483.25(h)(2) and its compliance history is by itself sufficient to justify the penalties which I sustain. That is not to say that proof of Petitioner's noncompliance with other participation requirements would not provide additional support for the penalties which I sustain. (7) All that I find is that it is not necessary to rule on these other alleged deficiencies in order to sustain the $450 per day penalties that CMS determined to impose. At the April 5, 2005 hearing, I explicitly counseled Petitioner to address in its post-hearing brief the issue of reasonableness of the $450 per day civil money penalties. Tr. at 138-39. I specifically asked Petitioner to answer the following question:
Tr. at 139 (emphasis added). By asking the question, I put Petitioner on notice that I might analyze the penalty amounts issue solely in terms of its possible noncompliance with 42 C.F.R. § 483.25(h)(2). More than that, I put Petitioner on notice that it had to marshal the evidence and arguments that supported its position if it disputed that noncompliance with 42 C.F.R. § 483.25(h)(2) justified penalty amounts of $450 per day. (8) But, Petitioner did not even address this issue in its post-hearing brief except to assert, without explanation, that "no actual harm resulted from any citation." Petitioner's post-hearing brief at 14. Petitioner's silence is telling given the notice that I gave to it. I conclude that Petitioner made no arguments about the reasonableness of the penalty amounts as a remedy for its failure to comply with the requirements of 42 C.F.R. § 483.25(h)(2) because it had none to make. In its decision, the Board appellate panel raised issues that had not been raised by Petitioner. It:
Madison, DAB No. 1927, at 9-10. Having said that, the Board appellate panel stressed that it did not preclude a decision that a given penalty amount is reasonable based on the presence of even one deficiency. As I discuss above, Petitioner addressed neither of these concerns in its post-hearing brief. However, I will address them here. First, although it is correct to say that my findings as to the seriousness of Petitioner's noncompliance reflect the injuries incurred by Resident # 85 due to Petitioner's failure to supervise her, I am in no respect suggesting that Petitioner's care of Resident # 60 was benign. The fact that Resident # 60 did not experience falls after April 7, 2002 that resulted in additional injuries to the resident was not a consequence of the care provided by Petitioner, but was in spite of Petitioner's failure to do what it had determined it needed to do for the resident. The potential for very serious harm existed in the case of Resident # 60. The fact that Resident # 85 was injured as a consequence of Petitioner's failure to supervise her, in my judgment, justifies the penalties that I am imposing without regard to what happened to Resident # 60. The deficient care that Petitioner gave to Resident # 60 simply reinforces my judgment. I have explained why I do not need to factor in the other possible deficiencies alleged by CMS in this case in order to justify civil money penalties of $450 per day. As the Board appellate panel concluded, it is my responsibility to decide independently whether penalties of any amount are reasonable. Here, I decide independently from CMS that penalties of $450 per day are reasonable based solely on Petitioner's noncompliance with 42 C.F.R. § 483.25(h)(2). That CMS may have relied also on other deficiencies to support a penalty determination of the same amount is certainly not inappropriate. But, I am not bound or limited by that determination. |
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| JUDGE | |
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Steven T. Kessel Administrative Law Judge |
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| FOOTNOTES | |
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1. The excluded exhibits consisted of written testimony of witnesses who were not produced by Petitioner for cross-examination. I excluded these exhibits because I found that CMS would be prejudiced by them if its counsel did not have the opportunity to cross-examine the witnesses. Transcript (Tr.) at 80-85. 2. In fact, the manufacturer of the merri walker does not claim that the device is so inherently stable that all residents may use it without supervision. It warns purchasers that residents should not be left to their own devices while using the product. It gives purchasers guidelines for use, including the following:
P. Ex. 23, at 6. According to the manufacturer: "In the absence of these guidelines the resident may be at risk." Id. 3. In its remand decision, the Board appellate panel observed that Petitioner averred in its hearing request that bed alarms were checked daily by charge nurses to assure that they functioned correctly. However, Petitioner offered no evidence to support this contention. 4. Moreover, the weight of the evidence is that the applicable standard of care is to check alarm batteries daily and not randomly. Tr. at 67-68. 5. The surveyor who recorded this statement submitted a written declaration and was made available by CMS for cross-examination. Petitioner could have cross-examined the surveyor about any possible ambiguity in the statement but it did not do so. Petitioner also could have asked the assistant director of nursing to clarify in testimony what she meant in the statement but, it did not do that, either. 6. It is not my role to invent arguments for the parties. 7. Indeed, it is even possible that proof of the existence of the other deficiencies absent proof of Petitioner's noncompliance with 42 C.F.R. § 483.25(h)(2) would be sufficient to justify imposition of penalties in the amounts which I sustain here, given the modest size of these penalties. 8. Moreover, Petitioner should have been aware of my possible analysis of the issue because I addressed it in my original decision in this case. |
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