Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Providence Mount St. Vincent,
Centers for Medicare & Medicaid Services.
Docket No. C-21-271
Decision No. CR5904
I enter summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS), sustaining its determination to impose remedies against Petitioner, Providence Mount St. Vincent, a skilled nursing facility, consisting of the following civil money penalties:
- $6,525 for each day of a period that began on June 23, 2020, and ran through July 12, 2020; and
- $515 for each day of a period that began on July 13, 2020, and ran through September 17, 2020.1
I deny Petitioner’s motion for summary judgment.
I. Issues, Findings of Fact, and Conclusions of Law.
The issues are whether Petitioner failed to comply substantially with Medicare participation requirements and whether CMS’ remedy determinations are reasonable.
CMS makes multiple allegations of noncompliance. In one instance, CMS contends that Petitioner’s noncompliance with a regulation cited at 42 C.F.R. § 483.12(a)(1) was so egregious that it posed immediate jeopardy for residents of Petitioner’s facility. I have no authority to address whether this noncompliance was at the immediate jeopardy level. That is because the remedy that CMS determined to impose for the noncompliance, civil money penalties of $6,525 per day, is an amount that falls beneath the range of penalties that are imposed for immediate jeopardy level deficiencies.
The range of civil money penalties that CMS may impose for noncompliance is governed by 42 C.F.R. § 488.438(a)(1)(i), which defines the range of immediate jeopardy level civil money penalties, and by 45 C.F.R. § 102.3. As of June 2020, when CMS determined to impose a penalty against Petitioner for alleged immediate jeopardy level noncompliance, the minimum immediate jeopardy level penalty amount was $6,808 per day, nearly $300 per day higher than the penalty amount that CMS determined to impose. 42 C.F.R. § 488.438(a)(1)(i); 45 C.F.R. § 102.3.
The penalty that CMS imposed falls within the range of penalties that may be imposed for non-immediate jeopardy level deficiencies. 45 C.F.R. § 102.3. A finding of immediate jeopardy is not a necessary element of deciding whether the non-immediate jeopardy range penalty is reasonable. I do not have authority to address a finding that does not result in the imposition of a remedy. Therefore, I decide the reasonableness of the civil money penalty that CMS imposed for Petitioner’s noncompliance with 42 C.F.R. § 483.12(a)(1) using the regulatory criteria for non-immediate jeopardy level remedies.
B. Findings of Fact and Conclusions of Law
This case is before me on the parties’ cross-motions for summary judgment. Petitioner argues, in the alternative, that if I deny its motion, then I should also deny CMS’s motion for summary judgment.
In deciding whether or not to issue summary judgment, I follow the guidelines contained in Rule 56 of the Federal Rules of Civil Procedure. I am mindful that I must base my decision entirely on facts that are not disputed. Where multiple reasonable inferences may be drawn from a fact or facts, I must evaluate the claims of noncompliance using inferences that favor the party against whom the motion is filed.
I am also mindful that assertions of fact are not relevant to deciding a motion for summary judgment unless those facts can be documented. A party does not successfully resist a motion for summary judgment by claiming that a fact exists unless that party can point to some legitimate ground for saying so.
CMS filed 32 exhibits in support of its motion, identified as CMS Ex. 1-CMS Ex. 32. Petitioner filed 15 exhibits in response, identified as P. Ex. 1-P. Ex. 15, and in support of its motion for summary judgment.
It is unnecessary that I formally receive exhibits into evidence in granting a motion for summary judgment inasmuch as I rely on undisputed facts. I do not receive the parties’ exhibits. However, I note that neither party filed objections to exhibits.2
I refer to some of the parties’ exhibits in this decision, but only to identify facts that are not in dispute.
The findings and conclusions that I discuss below are based in their entirety on undisputed facts. A careful reading of Petitioner’s arguments shows that Petitioner does not deny those facts presented by and relied upon by CMS for its case. In a few instances Petitioner takes issue with CMS’s characterization of facts. For example, Petitioner denies that a resident “thrust” his walker at another resident. However, it does not deny that, in that episode, the resident shoved his walker in the direction of the other resident. As another example, Petitioner takes issue with CMS’s characterization of three falls sustained by a resident as “multiple” falls, but it does not deny that the falls occurred, nor does it deny the consequences of those falls. I find these disagreements to be trivial and not to call into question any of the facts on which I rely for this decision.
Petitioner also advances facts in addition to those asserted by CMS which, it contends, paint a picture of its regulatory compliance that is very different from that which CMS alleges. Indeed, Petitioner argues that the facts on which it relies are sufficient for me to grant summary judgment in its favor. I have considered all of the facts asserted by Petitioner and accept them as true for purposes of rendering this decision. For reasons that I shall explain, I find that these facts neither favor judgment in Petitioner’s favor nor do they detract from CMS’s asserted facts and allegations of noncompliance.
1. Noncompliance with the requirements of 42 C.F.R. § 483.12(a)(1)
The applicable regulation provides, among other things, that a resident of a skilled nursing facility has the right to be free from abuse. The regulation defines “abuse” as the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. “Willful” means that the abuser must have acted deliberately – in the sense that he or she intended to engage in an act that has an abusive consequence. It is not a necessary element of abuse that the perpetrator intended to cause harm or injury. 42 C.F.R. § 483.12(a)(1). Abuse can occur even where the perpetrator has cognitive deficits and where the abusive act is the consequence of those deficits. The Bridge of Rockwood, DAB No. 2954 at 27-28 (2019).
CMS alleges that Petitioner failed to prevent one of its residents, identified as Resident 1, from abusing other residents through intimidation. CMS identifies a series of abusive acts by Resident 1 transpiring over a period of about 17 months. CMS contends that two of these acts caused actual harm to other residents. It asserts that Petitioner’s staff employed inadequate measures in response to the abuse, thereby allowing the abuse to continue.
In response, Petitioner contends that Resident 1 was not abusive by nature. It characterizes the resident’s personality as “relaxed, friendly, cheerful, and gentle.” Petitioner Providence Mount St. Vincent’s Pre-hearing Brief and Opposition to Respondent’s Motion for Summary Judgment, Or in the Alternative, Petitioner’s Cross-Motion for Summary Judgment (Petitioner’s brief) at 6.3 Petitioner concedes that the resident acted out from time to time, possibly because he was unable to express his thoughts in English (the resident evidently speaks only Cantonese). It asserts that the resident never posed a meaningful threat to other residents and it contends that whatever measures its staff took more than adequately protected those residents from Resident 1.
I find that the undisputed facts support CMS’s contentions. They establish that Resident 1 repeatedly acted aggressively towards other residents and that residents were harmed on more than one occasion. Although I accept as true Petitioner’s description of the resident’s personality and its explanation for the motivation of his aggression, I find that these facts do not gainsay the reality that Resident 1 was aggressive repeatedly and predictably. Whether the resident intended to harm other residents is also irrelevant. His actions were willful. Finally, I find that the undisputed facts show that Petitioner’s staff failed to seriously address Resident 1’s behaviors, allowing his aggression to continue for far longer than the staff should have permitted.
Here are the undisputed facts on which I base my conclusions: Resident 1, a male resident, suffered from decreased cognition. CMS Ex. 3 at 1, 8. He was unable to communicate in English. Id. The resident had a favorite reclining chair in Petitioner’s common area.4
On multiple occasions Resident 1 acted aggressively towards other residents. Often, Resident 1 became aggressive towards other residents who sat, or who attempted to sit, in “his” chair.
- On January 26, 2019, Resident 1 grabbed the arm of a female resident, Resident 2, when that resident attempted to sit in the chair. When Petitioner’s staff attempted to remove Resident 1’s hand from Resident 2’s arm, Resident 1 responded by grabbing Resident 2’s other arm with both hands, squeezing it so tightly that Resident 2 cried out in pain. Staff had to pry Resident 1’s hands from Resident 2’s arm. Resident 2 was injured, suffering a skin tear of about 1.5 inches on her arm. CMS Ex. 3 at 3-4, 6.
- On May 20, 2019, Resident 1 shoved his walker at another resident, Resident 3, when she apparently blocked his path. CMS Ex. 4 at 1-2. A staff member intervened, preventing Resident 1 from striking Resident 3 with the walker. Resident 3 raised her arm in an apparent attempt to strike back at Resident 1, but the staff member prevented the two residents from coming to blows.
- Another incident occurred between Residents 1 and 3 on September 12, 2019. On this occasion Resident 1 yelled in Cantonese at Resident 3, who was sitting in Resident 1’s favorite chair. CMS Ex. 5 at 1. Petitioner’s staff intervened to stop the altercation. Staff commented that this was at least the third altercation between these two residents. Id.
- Additional incidents involving Resident 1 occurred on April 6, 7, and 11, 2020, and on May 4, 2020. CMS Ex. 6. Petitioner’s staff did not investigate these incidents and so, they were not documented by the staff. These incidents involved altercations between Resident 1 and Resident 4 and once again were centered around another resident sitting in Resident 1’s favorite chair. CMS Ex. 11 at 5-9.
- Another incident occurred on May 10, 2020, consisting of an altercation between Resident 1 and an unidentified resident, when that resident sat in Resident 1’s favorite chair. CMS Ex. 7.
- Yet another incident occurred on May 22, 2020, when Resident 4 attempted to sit in Resident 1’s favorite chair. CMS Ex. 8, CMS Ex. 11 at 10. Petitioner’s staff describes this event as a “brief episode of aggressive behavior concerning the chair placed at [Resident 1’s] usual spot but occupied by a female resident.” CMS Ex. 8.
- On June 7, 2020, Resident 1 again acted aggressively toward another resident. Resident 1, evidently angry that Resident 4 might sit next to him, shoved his walker toward the chair occupied by Resident 4 and muttered angrily until Petitioner’s staff relocated the other resident. CMS Ex. 9; CMS Ex. 11 at 10-13.
- Resident 1 acted aggressively toward Resident 4 once more on June 15, 2020. On this occasion, Resident 1 yelled at Resident 4 when he encountered her sitting in his favorite chair. He pushed his walker repeatedly into the chair until Resident 4 moved. CMS Ex. 10 at 3-7; CMS Ex. 11 at 14-15. The incident left Resident 4, who suffers from cognitive deficits, distraught and in tears for a period of between one and two hours. CMS Ex. 10 at 5.
The undisputed facts establish that Petitioner’s staff responded inadequately to Resident 1’s aggression. The staff determined that Resident 1 needed a comprehensive mental health evaluation after the January 26, 2019 episode of abuse, which left another resident injured. CMS Ex. 3 at 2; CMS Ex. 11 at 1. Staff thus concluded that assessing the state of the resident’s mental health was an essential prerequisite to planning the resident’s care, deterring the resident from abusive behavior, and protecting other residents. However, Petitioner did not have the resident evaluated until June 23, 2020, and even then only as part of a corrective action plan that Petitioner drafted in response to surveyors’ findings of noncompliance. CMS Ex. 20 at 1.
Other responses by staff plainly were inadequate given that Resident 1 continued his abusive behavior. His repeated abuse demanded that staff revise the resident’s plan of care to include interventions that would protect other residents. If interventions were inadequate, additional revisions were mandated.
But that isn’t what happened. To the contrary, the undisputed facts establish that Petitioner’s staff took either no or minimal actions in the wake of Resident 1’s repeated episodes of abuse. Petitioner’s staff did not comprehensively assess Resident 1’s behavior or the causes of it after the January 26, 2019 episode or subsequently. In the immediate aftermath of the January 26 episode, the staff made a handwritten addition to the resident’s plan of care to the effect that staff should prevent others from sitting in the resident’s favorite chair in order to avoid incidents. CMS Ex. 3 at 8. Obviously, the staff didn’t implement this intervention, because there were many subsequent altercations between Resident 1 and other residents who sat in “his” chair.
Petitioner’s staff did not reassess Resident 1’s behavior after his May 20, 2019 aggression, which resulted in an altercation between Resident 1 and Resident 3. No mental status evaluation occurred, and the staff did not address this new act of aggression in Resident 1’s care plan. CMS Ex. 5 at 3; CMS Ex. 10 at 9-12.
The staff noted recurring conflict between Residents 1 and 3 after yet another altercation initiated by Resident 1 on September 12, 2019. However, staff made no effort to comprehensively assess the causes of these altercations, did not propose new interventions in order to stop the continuing conflict, and did not revise Resident 1’s plan of care. CMS Ex. 5 at 3; CMS Ex. 10 at 9-12. Nor did staff reassess the resident, develop new interventions, or make changes to the resident’s care plan in the wake of the aggressions by Resident 1 on April 6, 7, and 11, 2020, and on May 4, 2020. The staff didn’t investigate the causes of these episodes. Similarly, Petitioner’s staff conducted no investigation and made no new assessments or changes to the resident’s care plan in response to incidents of aggression by the resident occurring on May 10 and 20, 2020.
Petitioner’s staff conducted no initial investigation of Resident 1’s aggression occurring on June 7, 2020 and made no changes to the resident’s care plan in response to that incident. CMS Ex. 9; CMS Ex. 10 at 11-12; CMS Ex. 11 at 10-13.
Petitioner’s staff finally made some revisions to Resident 1’s plan of care after the June 15, 2020 episode of abuse. But, still, the staff failed to order the comprehensive mental assessment of Resident 1 that it had initially determined was needed and it failed to explain why it wasn’t ordering this assessment. Moreover, an intervention that the staff implemented – placing laminated signs in the facility common area announcing that the chair was reserved for Resident 1 – was not done in a way that would produce beneficial results. Petitioner could not reasonably assume that Resident 1 or other demented residents would comprehend these signs. Two members of Petitioner’s staff did not realize that the signs were intended to remind staff – and not residents – that the chair was reserved for Resident 1. A third member was unaware of the signs’ presence. CMS Ex. 28 at ¶ 18.
I have considered all of Petitioner’s arguments and the facts that it offers in response to the undisputed facts that I describe above. I find nothing in these arguments or Petitioner’s supporting facts, accepting those facts to be true, that might alter my conclusion that Petitioner failed to protect its residents from the abuse perpetrated by Resident 1.
The bulk of Petitioner’s assertions are directed at showing that Resident 1 was essentially harmless. Thus, Petitioner asserts that the resident has an “affable nature,” and that he was normally “relaxed, friendly, cheerful, and gentle.” Petitioner’s brief at 6. These assertions are irrelevant even if true. They do not negate in any respect the abusive outbursts by the resident. It matters not that the resident was generally affable or friendly
because the undisputed facts establish that he also was abusive on numerous occasions. Indeed, as the undisputed facts establish, Resident 1 was not harmless. He harmed other residents on two occasions.
Petitioner characterizes the resident’s outbursts as instances of “occasionally, but rarely, and momentarily,” raising his voice “to more clearly convey what he could not communicate with words.” Petitioner’s brief at 6. For purposes of this decision, I’ll accept Petitioner’s assertion that the resident’s outbursts were occasional, rare, momentary, and born of frustration at his inability to communicate in English. That does not detract an iota from the undisputed facts that establish that the resident was abusive on many occasions.
Petitioner argues also that Resident 1’s outbursts were motivated by benign intent. The resident, according to Petitioner, did not want others sitting in “his” chair because he was concerned that they might become contaminated by his germs. Petitioner’s brief at 6-7. I accept this characterization of the resident’s motivation but, once again, it does not gainsay the undisputed facts showing that the resident was abusive. Even benignly intended acts are abuse if they are deliberate and they cause harm or have the potential to do so.
Petitioner characterizes Resident 1’s abusive conduct as being “rather innocuous.” Petitioner’s brief at 7. It asserts that the resident’s outbursts were mainly verbal or accompanied by gestures without physical contact and that staff intervened on most occasions before any real harm could occur. Consequently, according to Petitioner, the facts that it offers should lead to a conclusion that Resident 1 caused no significant harm.
In order to advance these arguments Petitioner ignores both the undisputed facts establishing what happened and other undisputed facts establishing the setting of Resident 1’s abusive behavior. First, the undisputed facts establish two instances of actual harm. On January 26, 2019, Resident 1 physically harmed another resident, a demented woman, grabbing her arm so tightly that she cried out in pain and causing the resident to sustain a wound on her arm. On June 15, 2020, the resident caused another resident, also demented, to suffer emotional distress, reducing that resident to tears and leaving her distraught for at least an hour.
These episodes of actual harm illustrate the potential for harm that the resident’s unchecked abuse posed to other residents of Petitioner’s facility.
The potential for serious harm results also from the setting in which the abuse occurred. By definition, residents of skilled nursing facilities are individuals who are so gravely impaired that they are unable to provide for their own needs. Residents are often physically infirm, frail, elderly, and demented. They would not be eligible for skilled nursing care if that were not the case. Consequently, abusive behavior that might be
brushed off as annoying at worst by younger and healthier individuals may threaten the health and even the lives of skilled nursing facility residents.
The other individuals abused by Resident 1 were at the least, demented. For them, Resident 1’s behavior was not “rather innocuous,” it was dangerous.
Petitioner contends that Resident 1’s outbursts could not be characterized as abuse because its staff’s interventions rendered them harmless. “In each of the . . . encounters, staff immediately and effectively intervened to redirect the residents.” Petitioner’s brief at 9. Thus, according to Petitioner, the resident’s care plan worked.
The undisputed facts belie these contentions. There were two instances, which I have described, in which the staff’s interventions did not prevent residents from being harmed. As important, those instances establish that the potential for serious harm existed with each episode of abuse. As I have explained, the frailty and debilitated status of many skilled nursing residents means that any episode of abuse of the type perpetrated by Resident 1 – shouting at other residents, shoving a walker at them, grabbing them by the arms – potentially could have caused these residents to suffer grave injuries or worse. The fact that Petitioner’s staff may have timely intervened on some (but not all) occasions to prevent harm is fortuitous, but it doesn’t vitiate the potential for harm that existed with every act of abuse.
As I have discussed above, CMS characterizes Petitioner’s noncompliance as comprising immediate jeopardy for residents. I have explained why I do not address the issue of immediate jeopardy, but to reiterate, CMS did not impose an immediate jeopardy-level civil money penalty or other remedy reserved for immediate jeopardy noncompliance and, consequently, I lack authority to address the issue of immediate jeopardy. I do have authority to decide the reasonableness of the civil money penalties that CMS imposed for Petitioner’s noncompliance with the requirements of 42 C.F.R. § 483.12(a)(1). I decide that question, below.
2. Noncompliance with the requirements of 42 C.F.R. § 483.12(c)(1), (4).
Subsection (c)(1) of this regulation requires a facility’s staff to report all alleged violations involving abuse, neglect, exploitation or mistreatment, “including injuries of unknown source” to the facility administrator and to appropriate officials, including the State Survey Agency and adult protective services, within two hours after the allegation is made if the event “results in serious bodily injury.” Subsection (c)(1) additionally imposes a 24-hour reporting requirement on facility staff where the events do not result in serious injury.
Subsection (c)(4) requires reporting the results of all investigations to the facility’s administrator and to other relevant officials within five days of the incident.
The regulation’s reporting requirements are clear. In sum: facility staff must report a serious injury of unknown source to relevant officials and to the facility’s administrator within two hours of discovery of the injury whether or not subsequent investigation determines the injury to be the consequence of neglect or abuse or of another source. The staff must report non-serious injuries within 24 hours. Finally, the regulation requires an investigation of injuries of unknown source to be completed and reported within five days.
CMS asserts, and I find, that undisputed facts establish that Petitioner failed to comply with the regulation’s requirements.
There is no dispute that Resident 6 sustained an unwitnessed fall on May 22, 2020. CMS Ex. 13 at 1. The resident variously reported that her slippers might not have had enough grip or that they came off her feet. The resident reported no other details of her fall. The resident sustained serious injuries, eventually dying. Id. at 1, 4-5. Resident 11 also sustained an unwitnessed fall, on March 5, 2020. CMS Ex. 31 at 1.
It is undisputed that Petitioner’s staff did not report either of these falls to appropriate state officials.
These undisputed facts establish noncompliance with regulatory requirements. The falls sustained by both residents were of unknown origin. The explanations given by Resident 6 for the fall that she sustained vary. That, plus the fact that her fall was unwitnessed triggered regulatory notification and investigation requirements. Put simply, the staff had no way of knowing with any degree of certainty, in the immediate aftermath of the resident’s fall, whether the fall sustained by this resident was accidental or caused by something else. The staff should have notified appropriate state authorities within two hours of discovering that Resident 6 had fallen. It did not.
As for Resident 11, this resident’s fall was clearly of unknown origin. Petitioner’s staff recorded no explanation for the fall. That fall triggered the regulation’s 24-hour reporting requirement. Petitioner failed to comply with this requirement.
Petitioner asserts that it disputes CMS’s fact allegations. Petitioner’s brief at 13. However, it has not disputed any of the facts that I recite. Petitioner contends that it “immediately and thoroughly investigated” the fall sustained by Resident 6. Even if that is so, that begs the question of whether Petitioner was required immediately to report the fall that the resident sustained. The regulation’s requirements for reporting and investigating serious injuries of unknown source are not written as alternatives. A facility
must comply with both requirements. Here, the facts plainly establish that Petitioner did not report Resident 6’s fall as the regulation requires.
Petitioner contends that there was no need to report Resident 6’s fall because its investigation established the cause of the fall – the resident was reaching for an item in her closet, she lost her balance and fell backwards – thus eliminating the need to report the incident. Petitioner’s reply brief at 4. However, and assuming that assertion to be true, Petitioner has not alleged that it completed its investigation and prepared a report within two hours of the incident. The regulation’s reporting requirement is not negated by an investigation that is completed and a report that is prepared subsequent to the reporting deadline.
As respects Resident 11, Petitioner asserts that no incident occurred that its staff was required to report. In making this assertion, Petitioner concedes that the resident fell. Petitioner’s brief at 15. However, it argues that there was no substantial injury sustained by Resident 11. That fact – which I accept as true – does not excuse Petitioner from satisfying the regulation’s reporting requirement. The regulation requires reporting within 24 hours of incidents of unknown origin where there is no substantial injury sustained by a resident. What happened to Resident 11 falls squarely within this requirement.
In reviewing Petitioner’s arguments concerning its failure to notify, it appears that Petitioner is contending that, in the cases of both Residents 6 and 11, its staff made a reasoned judgment based on staff’s understanding of the applicable regulation that reporting requirements weren’t triggered by the falls sustained by the residents. There is nothing in the documents that Petitioner’s staff generated contemporaneously with these incidents that supports this apparent assertion. The treatment records of Residents 6 and 11 are simply devoid of any analysis by Petitioner’s staff that suggests that the staff thought about the reporting requirements and determined – based on their understanding of the governing regulation – that they need not report these falls. The only reasonable inference that I can draw from the absence of analysis is that staff didn’t think about the requirements at all.
However, Petitioner would be noncompliant even if its staff judged that reporting these falls was unnecessary. The regulation does not allow for exceptions or for a facility staff to exercise discretion to report or not report incidents such as those that occurred here. The staff has an absolute duty to report all incidents.
Indeed, the purpose of the reporting requirements is to remove discretion from skilled nursing facilities concerning when they must report injuries of unknown cause. A facility’s management has an obvious conflict of interest whenever a reportable incident occurs, because it is in the facility’s interest not to have injuries of unknown cause on its
record. That is precisely why the reporting requirements are mandatory – a facility may not make judgment calls about when to, and when not to, report such injuries.
3. Noncompliance with the requirements of 42 C.F.R. § 483.21(b)(2)(i)-(iii)
The applicable regulation requires, in relevant part, that a facility must develop a comprehensive care plan for each of its residents. That plan must be revised with each new assessment of the resident and after comprehensive and quarterly reviews.
CMS alleges that Petitioner failed to make revisions in several residents’ care plans notwithstanding obvious and significant changes in these residents’ conditions that put Petitioner’s staff on notice that the residents’ care plans were no longer effective.
I find that CMS’s assertions are amply supported by undisputed facts. These facts address the care that Petitioner provided to several residents, identified as Residents 8, 9, 11 and 1.
Petitioner asserts generally that a facility is not required to put all of its evaluations and treatment decisions into a care plan. It asserts that “CMS continues to confuse . . . [a comprehensive care plan] with specific documents that comprise parts of that comprehensive plan.” Petitioner’s reply brief at 5. What Petitioner seems to be asserting is that a facility satisfies the regulation’s care planning requirements if various documents in a resident’s record, when viewed holistically, show that a facility has taken into account a resident’s needs and adjusted the resident’s care accordingly.
That assertion is incorrect as a matter of law. There is nothing ambiguous about the regulation’s requirement that a facility develop a comprehensive care plan for each of its residents. The regulation’s clear intent is that a facility must develop, for each resident, a single document that describes all of the significant problems faced by the resident and summarizes each intervention that the staff designs to address those problems. Putting all of the problems and interventions in a single document assures that the staff has a readily accessible explanation of the facility’s treatment of the resident. It also assures that problems aren’t ignored.
That does not mean, for example, that a care plan must include every episode of administration of a medication to a resident. But, the plan must, at least, describe the medication that the resident receives, explain the reasons for administering that medication, and discuss the intended goal of treating the resident in that manner.
As respects Resident 8, the undisputed facts established that the resident sustained multiple falls beginning on December 29, 2019, and culminating with a fall on June 2, 2020, that resulted in her death. CMS Ex. 15 at 1-7, 12-13. After one of these falls,
sustained on March 20, 2020, the staff tested the resident’s mental status and discovered that the resident had experienced a severe cognitive decline. Id. at 9-11. Despite these undisputed facts, Petitioner’s staff made no revisions in the resident’s plan of care to address the resident’s obvious increased propensity to fall. As CMS points out, the falls sustained by Resident 8 persisted over three quarters. That, in and of itself, should have triggered quarterly reviews and revisions of the resident’s care plan and yet, Petitioner’s staff did not revise the plan.
The undisputed facts establish that another facility resident, Resident 9, experienced three falls between February 17, and June 16, 2020, with the last fall causing the resident to be seriously injured. CMS Ex. 16 at 1, 45, 59, 61; CMS Ex. 1 at 53-54. These falls transpired in conjunction with a significant change in the resident’s sleep pattern and the resident’s cognitive deficits, which Petitioner’s staff characterized as leading to poor safety judgment. The resident was prescribed various medications, including psychotropic medications. These did not alleviate the resident’s sleeplessness. There are no assessments of record addressing the efficacy of these medications or modifying the resident’s care plan to address the resident’s heightened sleeplessness or propensity to fall. As of the resident’s final fall on June 16, 2020, the staff noted that the resident had been up all night, walking up and down Petitioner’s corridor. CMS Ex. 16 at 59-61.
There is no dispute that Resident 11 fell on three occasions between February 22 and May 16, 2020. CMS Ex. 1 at 34-35. Petitioner’s staff made no assessments leading to reconsideration or revision of the resident’s plan of care.
I have discussed previously, with respect to Resident 1, Petitioner’s staff did not significantly revise this resident’s plan of care over a 17-month period during which the resident committed multiple acts of abuse.
Petitioner does not dispute any of the facts on which I base my finding of noncompliance. Rather, it asserts that it is being held to an incorrect interpretation of the regulation. I disagree.
Petitioner contends that CMS’s allegations of noncompliance are based on a “false assumption that every time a resident experiences a fall, the resident’s care plan must be updated.” Petitioner’s brief at 16. This argument is a red herring. CMS does not contend that every fall triggers a need to update a care plan. What CMS argues – correctly – is that a facility has a duty to assess its residents and, if necessary, modify those residents’ care plans where events occur that signify a change or deterioration in residents’ conditions, such as falls, decreased cognition, and unremedied sleeplessness. The undisputed facts plainly prove that these events happened. Petitioner had a duty to review and, if necessary, revise the affected residents’ care plans. It was derelict.
Similarly, Petitioner asserts that CMS argues that “if a care plan fails to prevent every fall then the care plan is inadequate.” Petitioner’s brief at 17. This argument is another red herring. CMS does not contend that a care plan must operate to prevent every fall. CMS does contend that a care plan must address problems manifested by residents, including residents’ propensity to fall and must express interventions intended to protect those residents. Petitioner failed to satisfy this requirement because it made no revisions in care plans even after undisputed facts establish that extant care plans weren’t protecting residents.
4. Noncompliance with the requirements of 42 C.F.R. § 483.25
At issue is Petitioner’s compliance with regulatory requirements that direct a skilled nursing facility to provide care that complies with professional standards of practice.
CMS alleges that Petitioner failed to comply with this regulation in that it failed to comprehensively assess Resident 9’s sleeplessness and the efficacy of medications that were being provided to the resident, ostensibly to address her sleeplessness. I have discussed undisputed material facts relating to Petitioner’s care of Resident 9 under the preceding heading. These facts establish that, although the resident received various medications intended to address her sleeplessness, the medications clearly were not helping the resident and Petitioner’s staff did not comprehensively assess or plan whether the resident needed modification of her medication regime or other interventions.
There are additional undisputed facts that are relevant here. Petitioner has a sleep policy that provides that residents are supposed to be evaluated if they manifest changes in sleep patterns or quality. CMS Ex. 17 at 1. The evaluation is supposed to identify factors contributing to sleep disturbance. That information supposedly will be used to identify “specific sleep problems that direct development of an individualized care plan.” Id.
There are no facts showing that Petitioner’s staff performed the assessment of Resident 9 contemplated by Petitioner’s sleep policy. As I have discussed, no modifications were made in the resident’s plan of care that specifically addressed the resident’s sleeplessness. That failure by Petitioner to apply its own policy in caring for Resident 9 plainly violates professional practice standards.
Petitioner does not dispute any of the facts that I have discussed. Rather, it responds to CMS’s arguments with a blanket denial that it failed to comply with professional standards of practice. Petitioner’s brief at 17. I do not see anything in that denial that rebuts the undisputed facts presented by CMS or the law.
5. Noncompliance with the requirements of 42 C.F.R. § 483.25(d)(1), (2)
The applicable regulation requires a skilled nursing facility to maintain a resident environment that is as free of accident hazards as is possible and to provide its residents with the supervision and assistance devices necessary to protect them against sustaining accidents. This regulation does not impose a standard of strict liability against a skilled nursing facility, but it does require the facility to take all reasonable measures to protect residents against foreseeable accidents.
CMS alleges that Petitioner failed adequately to protect four of its residents, identified as Residents 5, 8, 9, and 38, from sustaining accidents. I find that the undisputed facts establish that Petitioner failed to satisfy its regulatory obligations to protect three of these residents, Residents 5, 8, and 9. I find that the record is inconclusive as respects the care that Petitioner gave to Resident 38 and so I make no findings of noncompliance concerning the care that Petitioner’s staff provided to that resident.
I have discussed the undisputed facts previously relating to the care that Petitioner provided to Residents 8 and 9. These facts establish that Petitioner failed to assess these residents’ falls risks and to modify their plans of care despite their sustaining repeated falls. That is noncompliance with regulatory requirements because it evidences a failure by Petitioner to do all that it could do to protect these residents.
As for Resident 5, the undisputed facts are that this resident also sustained falls, including falls sustained on February 28, March 15, and May 5, 2020. CMS Ex. 19 at 2, 4, 6. Despite these falls Petitioner’s staff did not assess the resident’s risk nor did they modify the resident’s care plan in an attempt to better protect the resident against sustaining falls. Id. at 10-12. I find this failure to assess and to modify the resident’s care plan to be a dereliction of responsibility to the resident.
There is ambiguity in the facts sufficient to preclude entering summary judgment as to the care Petitioner provided to Resident 38. This resident had been admitted to Petitioner’s facility following surgery on her hip. CMS Ex. 18 at 1. On June 30, 2020, the resident sustained a fall while washing her hands at a sink, unattended by Petitioner’s staff. I could infer from these facts that Petitioner’s staff failed adequately to protect this resident. However, the resident’s care plan is ambiguous in that it could be interpreted to reflect an assessment that the resident was capable of independent self-care, albeit with assistance in set up. Id.
That said, the failures by Petitioner’s staff adequately to protect Residents 5, 8, and 9, are sufficient basis for me to find that Petitioner failed to comply with regulatory requirements.
Petitioner responds to CMS’s allegations about the care it gave to Resident 9 by listing all of the interventions and treatments that it provided to the resident. Petitioner’s brief at 18-19. Petitioner argues that these interventions, collectively, show that its staff did all that it could to protect the resident against accident hazards.
I accept as true every assertion that Petitioner offers concerning the care that its staff gave to Resident 9. However, what the staff did for Resident 9 merely underscores what it did not do for her. This resident was suffering repeated episodes of falling which may have been related to her increasing insomnia. At no point did staff draw a connection between those episodes and the resident’s sleeplessness and at no point did the staff produce a comprehensive assessment of the resident’s sleep disorder. Nor did the staff revise the resident’s plan of care to address what was very obviously a looming and intensifying problem.
Moreover, and as CMS notes, many of the interventions that the staff implemented, such as administering Melatonin to the resident for her sleeplessness, were of a long-standing nature. The staff did not consider whether those interventions were ineffective and did not consider whether it might be appropriate to revise, rescind, or replace some of those interventions. At bottom, it is evident from the record of the care that Petitioner’s staff provided to Resident 9 that whatever was being offered to the resident wasn’t working. That mandated the staff – under Petitioner’s own policy – to consider making changes and trying new interventions. This, the staff did not do.
In addressing CMS’s allegations concerning the care provided to Resident 8, Petitioner complains that CMS incorrectly asserts that the resident sustained “multiple” falls when, in fact, the resident sustained “only” three falls. Petitioner’s brief at 19. Quibbling over the characterization of these falls is irrelevant. What matters is that this resident fell – more than once – and, notwithstanding, Petitioner’s staff neither assessed this resident’s fall risk nor did it modify her plan of care to address the hazards that she faced.
Petitioner also recites the interventions that its staff implemented in order to protect Resident 8, including making its staff aware that the resident occasionally forgot to use her call light, reeducating the resident regarding the need to use her call light, reorienting the resident, monitoring her for cognitive decline, keeping the resident’s room free of trip hazards, and ensuring that the resident used her eyeglasses. Petitioner’s brief at 20. For purposes of this decision, I accept as true all of the representations of what Petitioner’s staff did for this resident. However, it should have been obvious to the staff that these interventions weren’t working because the resident fell, repeatedly. That triggered a duty to do something more for this resident – to comprehensively assess her falls and the reasons for them and to attempt to develop interventions that might better protect her. This was not done.
Petitioner offers no response to CMS’s fact allegations concerning the care that Petitioner’s staff gave to Resident 5, nor does it argue that it provided the resident with care that complies with regulatory requirements.
6. Noncompliance with the requirements of 42 C.F.R. § 483.70
The applicable regulation requires a skilled nursing facility to be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.
CMS contends that undisputed facts establish Petitioner’s noncompliance with the regulation consisting of the following: First, Petitioner failed to timely complete a plan of correction that it had provided to CMS remedying Petitioner’s noncompliance with the requirements of 42 C.F.R. § 483.12(a)(1) (I address this noncompliance at Subheading 1 of this section of my decision). The plan established deadlines for Petitioner to accomplish certain remedial actions. Under the plan, Petitioner’s staff was to have conducted a risk assessment audit of its residents by June 25, 2020, and to update residents’ care plans as may have been necessary by July 3, 2020. CMS Ex. 20 at 1. In fact, Petitioner did not complete its risk assessment audit until July 3, 2020 and did not complete care plan revisions before July 10, 2020. Id. at 3.
Second, CMS alleges that Petitioner was out of compliance with regulations for which it had been cited previously. These include Petitioner’s failures to comply with the requirements of 42 C.F.R. §§ 483.12(c)(1),(4), 483.21(b)(2)(i)-(iii), 483.21(b)(3)(l), and 483.25(d)(1)(2).5
The undisputed facts establish noncompliance with 42 C.F.R. §§ 483.12(c)(1),(4), 483.21(b)(2)(i)-(iii), and 483.25(d)(1)(2). I have explained above why I do not address CMS’s finding that Petitioner’s noncompliance with the anti-abuse requirements of 42 C.F.R. § 483.12(a)(1) was at an immediate jeopardy level of scope and severity. Even so, I conclude that the noncompliance was very serious. As I discuss at Subheading 1 of this section, the noncompliance involved two episodes of actual harm. The staff witnessed repeated episodes of abuse of residents who were, due to their various infirmities and illnesses, highly vulnerable to injury resulting from the verbal and, at times, physical violence that Resident 1 perpetrated against other residents. Failure to act immediately to correct this noncompliance was a dereliction of responsibility by Petitioner. In this instance that dereliction is attributable to Petitioner’s management because it is management’s responsibility to ensure that a plan of correction is completed.
Similarly, Petitioner’s repeated noncompliance with other requirements lies at the doorstep of its management.
Petitioner does not dispute any of the facts that I have recited. It argues that it “efficiently and effectively completed the actions under the immediate jeopardy removal plan by July 3, 2020.” Petitioner’s brief at 21. However, Petitioner does not deny that it failed to complete its risk assessment audit of its residents by June 25, 2020, as it promised to do. Moreover, its assertion that it completed all of the plan’s requirements by July 3 is belied by the fact that it does not dispute that it did not complete care plan revisions prior to July 10, 2020.
Petitioner argues that, with the exception of its unchallenged failure to comply with the requirements of 42 C.F.R. § 483.21(b)(3)(l), it in fact complied with other regulatory requirements. However, and I have discussed in detail in this decision, Petitioner did not comply with these other requirements.
7. Noncompliance with the requirements of 42 C.F.R. § 483.75(g)(2)(ii)
The relevant regulation requires a facility to have a quality assessment and assurance committee that must develop and implement appropriate plans of action to correct identified quality deficiencies. The regulation does not establish how often such committee must meet nor does it state metrics for establishing what might constitute an appropriate plan of action to correct identified quality deficiencies. On its face the regulation gives considerable discretion to a facility as to how to implement its requirements.
These facts concerning Petitioner’s compliance with the regulation’s requirements are undisputed. Petitioner’s staff asserted to surveyors that it held “stand up meetings” and monthly meetings to review falls trends. CMS Ex. 28 at ¶ 23. I infer that “stand up meetings” are impromptu meetings held outside of regularly scheduled meetings. Staff produced forms to the surveyor that allegedly documented these meetings. However, none of the forms actually addressed or showed how staff evaluated falls, what trends were identified, or how trends were addressed. Id.
In response to previous findings of noncompliance with the requirements governing care plan timing and revisions, Petitioner promised to conduct monthly care plan reviews of a random sample of residents for three months, and then quarterly, until compliance was assured. CMS Ex. 24 at 33. However, the random sample of residents that Petitioner conducted in January 2020 consisted of reviewing the records of just one resident. In February 2020, the sample consisted of only three residents, all of whom resided on the same floor of Petitioner’s facility. In June 2020, the random sample consisted of only one resident. CMS Ex. 26 at 4.
CMS asserts that these undisputed facts establish that Petitioner failed to comply with quality assurance requirements. It contends that Petitioner’s staff was not actually engaged in quality assurance, asserting essentially that the staff was merely going through the motions of review without actually measuring the quality of the care that it provided to residents or making revisions in care protocols to address any problems that the staff identified.
Most importantly, CMS argues that the most significant proof that Petitioner was not effectively doing quality assurance review is the absence of any significant changes in the way that Petitioner provided care to residents, notwithstanding past findings of noncompliance. CMS does not assert that Petitioner lacked a quality assessment and assurance committee or that the committee failed to meet. Nor does it deny that Petitioner performed at least minimal random resident record reviews. What lies at the heart of CMS’s contentions about quality assurance is that Petitioner demonstrated continued noncompliance with care planning requirements despite having a quality assessment and assurance committee, despite holding meetings, and despite conducting a handful of random record reviews.
It is undisputed that Petitioner was cited in 2018 for failure to develop and implement plans of care. I find in this decision that Petitioner was again deficient in 2020 in meeting these requirements. The only reasonable inference that I can draw from this recurring noncompliance by Petitioner is that, whatever quality assurance mechanisms it had, it was not implementing those mechanisms in an effective manner.
Petitioner does not deny any of the facts asserted by CMS. Rather, it attacks CMS’s argument by suggesting that it is unfair to link the 2020 noncompliance findings concerning care planning with similar noncompliance findings made in 2018. Petitioner’s brief at 23. I find no unfairness in CMS’s contentions. The noncompliance findings made in 2018 – which are administratively final – and Petitioner’s own corrective action plan required Petitioner’s staff to act assertively to address and correct deficiencies in plans of care. The only reasonable inference that one can draw from repeated noncompliance in 2020 is that the staff was not consistently doing what Petitioner had promised that it would do. That is evident from Petitioner’s noncompliance with quality assurance requirements.
Petitioner also recites a variety of actions that its staff took ostensibly to maintain a high quality of care at its facility. Petitioner’s brief at 24. I accept as true all of these assertions of fact. However, they do not rebut CMS’s core allegation that there was a continued failure by Petitioner’s staff to produce care plans of an acceptable quality. Whatever measures Petitioner’s staff may have taken, the results of those measures or the lack of results are unrefuted proof that Petitioner was not implementing quality assessment and assurance.
8. Petitioner’s other arguments
Petitioner offers additional arguments that are an overall attack on the survey findings that are the basis for CMS’s remedy determinations. I do not find that these arguments have merit.
Petitioner asserts that State Agency surveyors “misapplied the law and ignored related guidance, resulting in a factually and legally erroneous Statement of Deficiencies . . . and wholly unreasonable civil money penalty . . . .” Petitioner’s reply brief at 2. This argument fails because this case is not in any respect about the surveyors’ acumen or judgment. In reaching my decision I base my findings and conclusions solely on facts that are undisputed and on the applicable regulations. I do not rely on surveyors’ interpretations of the regulations. The fact findings that I make in this decision are based almost entirely on Petitioner’s own records – and not on what the surveyors might have said about those records. Petitioner has not shown that any of the facts relied upon by CMS and drawn from those records have been incorrectly stated. Petitioner has taken issue with CMS’s characterization of some facts – i.e., whether Resident 1 “thrust” his walker at another resident or merely shoved it. I have explained why these disputes are trivial and have no bearing on my decision.
In this decision I have recited a few instances in which surveyors made findings based on interviews with Petitioner’s staff. For example, I discuss surveyors’ findings that the staff were unaware of the purpose of signs placed on or near Resident 1’s favorite chair. Petitioner has not asserted that these interview reports are incorrect. Importantly, it has not denied any statements attributed by surveyors to Petitioner’s staff.
Petitioner asserts that I must provide it a hearing so that it may cross-examine CMS’s surveyors. It asserts that if it is permitted to cross-examine these surveyors, it “plans to examine those witnesses about, among other parts of their written testimony . . . their surveyor notes related to the numerous genuine issues of material fact related to the disputed tags.” Petitioner’s reply brief at 2.
However, Petitioner has not identified specific facts which are in dispute and would justify an in-person hearing for the purpose of cross-examining the surveyors. As I have discussed, the surveyors’ findings consist essentially of excerpts from Petitioner’s own records. In deciding this case I do not rely on what the surveyors say those records contain, but rather on the records themselves. Petitioner has not asserted that its own records are false. And, as I have also discussed, I do not in any respect rely on the surveyors’ opinions in reaching my decision – neither on the surveyors’ assessment of the facts nor on their interpretations of regulations. In this de novo review I base my decision on the facts that are contained in Petitioner’s records and on the applicable regulations.
9. Civil money penalties
Petitioner does not challenge the duration of the civil money penalties, which CMS commenced on June 23, 2020, and continued through July 12, 2020, at the rate of $6,525 per day, and thereafter until September 18, 2020, at the rate of $515 per day. Rather, Petitioner asserts that no penalties ought to be imposed against it because it was, in fact, compliant with regulatory requirements. I have addressed the issue of Petitioner’s noncompliance and I need not revisit it.
CMS predicated its penalty amount determination of $6,525 per day on its conclusion that Petitioner’s noncompliance with 42 C.F.R. § 483.12(a)(1) was so serious that it amounted to immediate jeopardy for Petitioner’s residents until that status was abated by corrective actions that CMS found Petitioner to have completed on July 12, 2020. It based its determination of additional penalties of $515 per day on its conclusion that Petitioner continued to manifest noncompliance, albeit at a lower level of seriousness, until September 18, 2020.
The penalty amount of $6,525 per day – even if it is not an immediate jeopardy level penalty – is close to the top of the range of penalties that CMS may impose for penalties that are not at the immediate jeopardy level. 42 C.F.R. § 488.438(a)(1)(ii); 45 C.F.R. § 102.3.
There are regulatory criteria for deciding whether a civil money penalty amount is reasonable. These criteria are stated at 42 C.F.R. §§ 488.438(f)(1)-(4) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). Those criteria include the seriousness of a facility’s noncompliance, its culpability, and its compliance history.
Applying these criteria I find, first, that the penalties of $6,525 per day were reasonable. Residents of Petitioner’s facility were at great risk of sustaining serious harm from the abusive behavior of Resident 1 even if I make no finding that the risk equaled the regulatory standard for a finding of immediate jeopardy (a likelihood of serious injury, harm, impairment, or death). That risk to other residents emanated from two factors: the unchecked and repeated abusive conduct by Resident 1 and the physical and mental conditions of the residents whom he abused. Abusive behavior that might be shrugged off by a young and healthy adult becomes extremely serious when the victim is frail, demented, or physically incapacitated.
The $6,525 per day penalties are also reasonable given the substantial number of deficiencies that Petitioner manifested. I have found that Petitioner failed to comply with seven distinct Medicare participation requirements (and there were three other findings of noncompliance that Petitioner did not challenge). In some instances, Petitioner’s noncompliance resulted in actual harm to residents. That is certainly the case with its
failure to check Resident 1’s abuse, but it is true in other instances as well. The undisputed material facts establish, for example, that Petitioner failed to do all that it should have done to protect residents from sustaining life-threatening falls. At least one resident of Petitioner’s facility died as a consequence of his or her fall.
The record also establishes, and I have discussed, that some of Petitioner’s deficiencies were repeats of previous instances of noncompliance. Petitioner has a history of noncompliance with participation requirements. The findings that are at issue in this case are not isolated.
I also conclude that Petitioner was slow to abate the noncompliance that CMS identified. In its plan of correction, it promised that it would do so by July 3, 2020. It failed to meet that self-imposed deadline.
The $6,525 daily penalties that CMS imposed thus are amply justified, both in view of Petitioner’s noncompliance with 42 C.F.R. § 483.12(a)(1), when considered in isolation, and in the context of the other deficiencies manifested by Petitioner. I stress that Petitioner’s failure to protect its residents against abuse, in and of itself, supports the penalty determination. The presence of other deficiencies simply underscores the need for a penalty amount of the magnitude that CMS determined to impose. In sum, I would sustain the penalty amount based on the abuse deficiency even if no other deficiencies were present.
I also find the penalties of $515 per day that CMS imposed after July 12, 2020, to be reasonable. CMS imposed these penalties to address residual noncompliance by Petitioner. They are quite modest – less than 10 percent of the maximum allowable civil money penalties for non-immediate jeopardy level deficiencies. Petitioner has offered neither facts nor argument to show that this modest penalty amount is unreasonable.
I have found that Petitioner failed to comply with a total of 10 Medicare participation requirements, including nine failures to comply (six disputed and three undisputed) with regulations other than 42 C.F.R. § 483.12(a)(1). I have sustained all of CMS’s allegations of noncompliance. However, any of these allegations, in and of itself, would be sufficient to sustain the very modest penalties that CMS determined to impose for deficiencies existing after July 12, 2020.
Steven T. Kessel Administrative Law Judge
1. CMS initially determined to impose civil money penalties through October 1, 2020, but subsequently amended that determination so that the penalty assessments ended on September 18. CMS Ex. 32.
- back to note 1 2. Petitioner objected to, and moved to strike, certain statements in CMS’s pre-hearing brief and motion for summary judgment, essentially asserting that they were defamatory. I deny the motion. The statements fall within the bounds of legitimate argument. However, I do not rely on them to decide this case.
- back to note 2 3. Petitioner also filed a Pre-hearing Reply (Petitioner’s reply brief).
- back to note 3 4. Petitioner speculates as to the reasons why Resident 1 was so attached to this particular chair. Petitioner’s brief at 6. I find those reasons to be irrelevant to the issue of abuse, as I explain below.
- back to note 4 5. I address Petitioner’s noncompliance with 42 C.F.R. §§ 483.12(c)(1), (4), 483.21(b)(2)(i)-(iii), and 483.25(d)(1), (2) at Subheadings 2, 3, and 5 of this decision. Petitioner did not challenge CMS’ determination of noncompliance with the requirements of 42 C.F.R. § 483.21(b)(3)(l).
- back to note 5