SUBJECT: Cherrywood Nursing and Living Center,

Petitioner,

Centers for Medicare & Medicaid Services

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

Cherrywood Nursing and Living Center (Cherrywood) appealed the December 13, 2001 decision by Administrative Law Judge (ALJ) Richard J. Smith sustaining the determination by the Centers for Medicare and Medicaid Services (CMS) to impose a $1,500 per instance civil money penalty (CMP) on Cherrywood. See Cherrywood Nursing and Living Center, DAB CR845 (2001) (ALJ Decision). CMS imposed the CMP upon a finding that Cherrywood failed to comply with the requirement set forth at 42 C.F.R. § 483.25(h)(2), as a result of two incidents in which a resident at Cherrywood sustained injuries. Following cross motions for summary affirmance, the ALJ determined that there were no factual issues in dispute and issued his decision based on the parties' written submissions. On appeal, Cherrywood argued that the ALJ erred in finding that there were no material factual issues in dispute and denying Cherrywood a hearing. Cherrywood requested that the case be remanded to the ALJ to allow in-person testimony regarding all relevant disputed facts.

For the reasons discussed below, we find that Cherrywood failed to proffer before the ALJ evidence sufficient to place material facts in dispute. Accordingly, we find that a summary disposition of Cherrywood's appeal of the imposition of the CMP was appropriate, and we accordingly sustain the ALJ Decision.

The record here includes the record before the ALJ, the parties' submissions on appeal, and an oral argument conducted by telephone. Our standard of review of an ALJ decision on a disputed issue of law is whether the ALJ erred. Our standard of review on a disputed finding of fact is whether the ALJ Decision is supported by substantial evidence on the record as a whole. See, e.g., Lake Cook Terrace Nursing Center, DAB No. 1745 (2000). The bases for modifying, reversing or remanding an ALJ decision include the following: a finding of material fact necessary to the outcome of the decision is not supported by substantial evidence; a legal conclusion necessary to the outcome of the decision is erroneous; the decision is contrary to law or applicable regulations; or a prejudicial error of procedure (including an abuse of discretion under the law or applicable regulations) was committed. See Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs, ¶ 4(b), at http://www.hhs.gov/dab/guidelines/prov.html.

Applicable Regulations

CMS determined that Cherrywood was not in substantial compliance with the Medicare participation requirement set forth at 42 C.F.R. § 483.25(h)(2), finding that one of Cherrywood's residents suffered actual harm from preventable accidents.

The participation requirement at issue here falls under the rubric of "quality of care" requirements, which share the same regulatory objective that "[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care." 42 C.F.R. § 483.25. The specific provision at issue was the following:

Accidents. The facility must ensure that -

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

42 C.F.R. § 483.25(h).

Factual Background and Procedural History

The ALJ Decision contains a full discussion of the background, which we summarize here. ALJ Decision at 5 - 6. This summary of the undisputed facts is intended to provide a general framework for understanding the decision and is not intended to be a substitute for the ALJ's findings.

Cherrywood is a long-term care facility located in Sterling Heights, Michigan. CMS's imposition of a remedy arose from incidents concerning one of Cherrywood's residents in June 2000. At that time the resident was a frail 90-year old woman, weighing 86 pounds, with numerous medical conditions, including impaired physical mobility functions due to osteoporosis and a recent left femur fracture. ⁽¹⁾ The resident's plan of care directed Cherrywood's staff to exercise care in transferring her back and forth from her bed to a cardiac (geri) chair, with special attention being made to supporting her left side during the transfer and directed that "2-3 care-givers" be used to provide adequate transfer motion.

On June 23, 2000, one of Cherrywood's nursing employees transferred the resident from her bed to a geri chair using a one-person transfer method. Following the transfer, the resident was found bleeding from her head, requiring her to be sent to the hospital where she received four staples in her head to close a scalp laceration.

Three days later, on June 26, 2000, the resident suffered a hematoma and a gash in the back of her head after another Cherrywood staffer transferred her from her bed to the geri chair, again using a one-person transfer method. The resident was again sent to the hospital where she received two staples to close the laceration on her head.

On August 17, 2000, CMS conducted a complaint survey of Cherrywood, which found a deficiency under the requirement set forth at 42 C.F.R. § 483.25(h)(2). CMS Ex. 3. On October 3, 2000, CMS notified Cherrywood that it was imposing a per instance CMP of $1,500 for an isolated deficiency that constituted actual harm that was not immediate jeopardy. ⁽²⁾ On November 22, 2000, Cherrywood appealed the CMS determination. On March 7, 2001, CMS submitted a motion for summary affirmance of the CMP, arguing that there were no genuine issues of material fact as to whether Cherrywood was in substantial compliance with 42 C.F.R.
§ 483.25(h)(2) because it failed to exercise adequate supervision to prevent accidents in regards to the resident. CMS submitted 24 exhibits with its motion. Cherrywood then submitted its own motion, arguing on behalf of its right to a hearing, or alternatively, stating that it was entitled to summary affirmance on the basis that CMS failed to establish the existence of a deficient facility practice in violation of 42 C.F.R.
§ 483.25(h)(2). The ALJ afforded each party the opportunity to respond to the other's motion. Cherrywood submitted 16 exhibits with its sur-reply.

The ALJ Decision

In reaching his decision sustaining the CMP on summary disposition, the ALJ made four findings of facts and conclusions of law (FFCLs), three of which Cherrywood specifically challenged:

FFCL 1. Summary affirmance of CMS's determination to impose a per instance CMP is appropriate in this case.

FFCL 2. Petitioner failed to comply substantially with a federal participation requirement, causing actual harm to a resident.

FFCL 3. CMS is authorized to impose a $1,500 CMP, and the $1,500 CMP is reasonable.

The ALJ found that summary affirmance of CMS's determination to impose a CMP was appropriate because Cherrywood failed to offer any affirmative evidence or argument which credibly established a genuine dispute as to the facts or to demonstrate that the disputed facts it alleged had a material bearing on the outcome of the case. The ALJ found that the evidence before him established that a deficiency under 42 C.F.R. § 483.25(h)(2) existed in that the resident's injuries resulted in all probability from the failure of Cherrywood's staff to transfer her on two separate occasions in the manner prescribed in her plan of care. The ALJ stated that while the regulation did not impose a strict liability standard on Cherrywood, Cherrywood's supervision of its staff was not adequate to prevent the accidents that befell the resident as Cherrywood did not effectively implement adequate procedures to ensure that the resident's care plan was followed. The ALJ pointed to the fact that two employees, acting independently, failed to follow the care plan within a three-day period, indicating a systemic problem that Cherrywood was deficient in addressing. The ALJ discounted Cherrywood's assertions that it should not be held responsible for its employees ignoring the care plan, agreeing with CMS that Cherrywood should have identified and corrected the problem before it caused harm to a resident. The ALJ further found that a per instance CMP of $1,500 was reasonable under the circumstances, noting that the amount was at the very low end of the range of per instance CMPs allowed by the regulations.

Discussion

On appeal, Cherrywood argued that summary disposition of its case was inappropriate because material facts were in dispute. Cherrywood stated that before the ALJ it made specific offers of proof concerning: 1) the training of the individual nursing assistants involved in the incidents and the quality of their work as indicated by in-house testing; 2) the investigation of the accidents and the prompt action it took after the first accident; 3) its responses to prevent the accidents from recurring; and 4) its quality assurance activities to determine its responses to accidents. Cherrywood argued that the ALJ, while denying Cherrywood the opportunity to present testimony regarding these material facts, nevertheless based his decision on facts for which there was no evidence in the record.

Cherrywood specifically pointed to the following language from the ALJ Decision:

Had Petitioner effectively trained and monitored its employees regarding transfers, and especially had it made sure that an adequate number of staff were available to assist with [the resident]'s transfers, [the resident] would not have been transferred by a method not recognized in her care plan.

ALJ Decision at 7. Cherrywood contended that, given the opportunity, it could have presented clear and convincing evidence to refute this statement, particularly that there was adequate staff present at the facility and that its employees were effectively trained and supervised.

Cherrywood argued that there was no evidence of a lack of substantial compliance with the requirement set forth at section 483.25(h)(2), as it did everything in its power to prevent its staff from deviating from the procedures set forth in the resident's care plan. Cherrywood maintained that the nursing aides had been appropriately trained and had received periodic in-service training on proper transferring techniques. Cherrywood insisted that the nursing aides were told of the proper transfer procedure set out in the care plan and that there was no indication that the aides would not abide by the care plan. Cherrywood stated that it had disciplined the nursing aide involved in the first incident with the resident, and terminated the nursing aide in the second incident. Cherrywood argued that CMS imposed, and the ALJ sustained, what was, in effect, a strict liability standard that was not contemplated in the regulations, in spite of the fact that Cherrywood had done all that was possible to prevent the occurrence of transfer accidents involving the resident. Cherrywood maintained that the evidence it would have presented at a hearing would have shown that CMS was not authorized to impose a CMP, and hence the imposed CMP of $1,500 was unreasonable.

The ALJ did not err in finding that a summary disposition of this case was appropriate as no material facts were in dispute.

While the regulations at 42 C.F.R. Part 498 provide that a Medicare/Medicaid provider appealing various remedies, including a CMP, is entitled to a hearing before an ALJ, the Board has recognized that this is not an automatic right:

[A]n in-person hearing is not required or even meaningful in every case. In some cases, parties waive that right; in others, no issue of material fact is presented; and, in some cases, any factual issue is resolved on the face of the written record because the proffered testimony, even if accepted as true, would not make a difference.

Big Bend Hospital Corp., d/b/a Big Bend Hospital Center, DAB No. 1814, at 13 (2002).

The procedures of the Civil Remedies Division specifically recognize that appeals brought before an ALJ may be resolved through summary disposition:

An in-person hearing . . . is not the only vehicle for the judge to hear and decide the case. If, after giving the parties the opportunity to present their views, the judge determines that there are no genuine issues of material fact, the judge might decide the case based on the undisputed facts and the applicable law.

Civil Remedies Division Procedures at 1.

Here the issue is whether there were material facts in dispute. CMS contended that there were only four relevant material facts in this case, which facts were supported by the exhibits introduced by both parties before the ALJ: 1) the resident's care plan required a 2-3 person transfer procedure; 2) on two separate occasions, involving two different nursing aides, the care plan was not followed when a one-person transfer of the resident was made from her bed to a geri chair; 3) on both occasions, injuries to the resident were first noticed immediately following the transfer, and bed linen from which she had been lifted had no blood on them, indicating that the injuries were not present prior to the transfers; and 4) her injuries on both occasions required emergency room treatment and staples to close a head wound. If these facts were not disputed by Cherrywood, CMS argued, it would have been reasonable for the ALJ to conclude that the resident had not received the adequate supervision mandated by section 483.25(h)(2) since the ALJ was entitled to draw reasonable inferences from the evidence before him about why and how the injuries to the resident occurred.

Cherrywood had two opportunities before the ALJ, in its reply to CMS's motion for summary affirmance and in its sur-reply, to offer evidence that would contradict these facts and challenge CMS's motion. Yet Cherrywood failed to do so. Cherrywood did not even dispute these particular facts on appeal. Cherrywood explained that it would have liked to have produced before the ALJ an affidavit from the fired nursing aide, but it had no means of compelling her to submit such an affidavit. Cherrywood, however, failed to offer any explanation why it failed to submit before the ALJ affidavits or declarations from individuals that it still had control over and who presumably had direct knowledge of the incidents involving the resident such as the facility administrator, the director of nursing, or the nursing aide who was disciplined but still retained. In fact, before the ALJ, Cherrywood offered only two exhibits, apart from excerpts from the State Medicaid Manual, that were not duplicates of exhibits already offered by CMS. Those two exhibits dealt with the training Cherrywood provided to its nursing aides (Cherrywood Ex. 10) and the post-incident disciplinary action it took against the two nursing aides who used one-person transfers on the resident (Cherrywood Ex. 13). Neither of these exhibits in any way refuted CMS's contention that the same resident was transferred twice by Cherrywood's employees using a transfer method in violation of her care plan, and that injuries ensued both times. We find that it was entirely reasonable on the ALJ's part to find that these two exhibits did not create a dispute of fact material to the basis for the imposition of the CMP.

Cherrywood focused its arguments on appeal on other "findings" in the ALJ Decision which Cherrywood alleged were unsupported by the evidence. Cherrywood argued that the ALJ made a finding that a two-person transfer was safer that a one-person transfer without any evidence to support that finding. According to Cherrywood, due to the small frame of the resident and her fragile physical condition, a one-person transfer actually put her at less risk to her physical safety. This argument incorrectly states the ALJ's finding. The issue before the ALJ was not whether a one-person or a two-person transfer was more conducive to the resident's well-being, but rather whether the failure to follow the resident's care plan constituted a violation of section 483.25(h)(2). Her care plan called for any transfer to be performed by more than one person. Cherrywood's staff failed to follow the care plan not just once, but twice. Each time this resulted in a trip to the emergency room for treatment of a head injury. A care plan is based on a facility's assessment of a resident's needs and represents an interdisciplinary team's best judgment of the services required for the resident, including services required under section 483.25. See 42 C.F.R. § 483.20. Even if Cherrywood presented evidence that the resident's well-being could generally be better achieved through a one-person transfer done correctly, this would not undercut the fact that the interdisciplinary team at the time determined that two to three people were needed. Cherrywood was obligated to provide services in accordance with the plan of care.

Cherrywood contended on appeal that the DAB decisions in Woodstock Care Center, DAB No. 1726 (2000)and the ALJ decision in Lakeland Continuing Care Center, DAB CR683 (2000), should lead to a finding that since it had adequate procedures in place for discovering and correcting errors, it should be found not liable. While these cases do confirm the DAB's long-standing position that the regulations do not impose strict liability - a position we again affirm here - the ALJ's findings regarding Cherrywood's actions do not constitute an imposition of strict liability in this case. Here, the injuries to the resident occurred as a direct result of actions by Cherrywood's employees. This was not a case of a facility doing everything it could to prevent an accident; here the actions of the facility's employees not once, but twice, directly resulted in the injuries to the resident. This is a far cry from strict liability. It is apparent, and there is no genuine dispute on this record, that Cherrywood's employees caused the resident's injuries, as a result of their failure to comply with the resident's care plan. Cherrywood is responsible for its failure to comply. No evidence was proffered to the ALJ which in any way indicated that there was a dispute with CMS's version of the facts. Indeed, CMS drew many of its conclusions as to the cause of the resident's injuries from Cherrywood's own reports.

Likewise, Cherrywood's attempt to rely on the State Operations Manual (SOM) guidelines (Pet. Br. at 13-14.) is unavailing. While Cherrywood highlighted that portion of the SOM language to the effect that the intent of section 483.25(h)(2) is for the facility to identify residents at risk and provide adequate care plans, Cherrywood ignored the specific language in the quoted SOM passage requiring a facility to implement procedures to prevent accidents. Cherrywood's violation is not failure to identify residents at risk nor is it failure to provide an adequate care plan; rather it is its failure to implement procedures to prevent accidents as evidenced by the fact that its own employees did not follow the plan and directly caused accidental injuries to the resident.

From the emphasis it placed on the argument in both its briefs and the oral argument, it appears that what concerned Cherrywood the most about the ALJ Decision was the language in the ALJ Decision, quoted above, that Cherrywood did not effectively train its employees or that its facility was inadequately staffed. In the oral argument, CMS labeled this language of the ALJ as "dicta" having no bearing on whether a deficiency under section 483.25(h)(2) was present.

We find that for the ALJ to have included this language in his decision was harmless error on the ALJ's part. It was, as contended by Cherrywood, unsupported by any facts in the record, but it ultimately had no effect on the result in this case. Even if Cherrywood produced testimony that it trained its employees and had adequate staff available to assist in transfers, the ALJ could reasonably find that Cherrywood was not in substantial compliance with section 483.25(h)(2) given the undisputed facts surrounding the resident's injuries.

Nor do we find that this result is tantamount to the imposition of a strict liability standard on Cherrywood. As the Board has previously stated, the standard for prevention of accidents mandated by section 483.25(h)(2) does not amount to strict liability and must be viewed as having inherent in it an element of reasonableness. See Woodstock Care Center, DAB No. 1726 (2000). If anything, Woodstock stands for the proposition that the regulations "impose an affirmative duty to provide services" to achieve "a positive outcome" (Woodstock at 25), something which Cherrywood through its employees did not accomplish here. As the ALJ correctly declared, citing Koester Pavilion, DAB No. 1750 (2000), "To ensure adequate supervision, a facility is not required to do the impossible or to be a guarantor against unforeseeable occurrences, but it is required to do everything in its power to prevent accidents." ALJ Decision at 6. We agree with the ALJ that Cherrywood did not do so here.

Cherrywood cannot simply claim that it should not be held responsible for the incidents involving the resident because the nurse aides failed to follow the care plan. The Board has consistently held that a facility cannot disavow responsibility for the actions of its employees. In a case involving a facility where a nurse had failed to respond to calls for assistance from the visiting spouse of a resident who was experiencing trouble breathing, the Board stated:

[The nurse's] employer cannot disown the consequences of the inadequacy of the care provided by the simple expedient of pointing the finger at her fault, since she was the agent of her employer empowered to make and carry out daily care decisions.

Emerald Oaks, DAB No. 1800, at 7, n.3. (2001); see also, Ridge Terrace, DAB No. 1834 (2002). Cherrywood argued that while this standard may be applied to professionals such as nurses who fail to act within the scope of their training, it should not be applied to nurse aides. Cherrywood argued that the aides here, unlike professionals, had no discretion, and acted contrary to written instructions, which Cherrywood could not have foreseen. The regulations, however, cannot reasonably be read as making a facility's responsibility for the actions of its employees dependent on the hierarchy of the employees within the facility. The facility is responsible for ensuring that services are provided to meet the residents' needs, whether those services are provided by professionals, nurse aides, or other employees.

Conclusion

For the reasons discussed above, we sustain the ALJ Decision. In doing so, we affirm and adopt all the FFCLs made by the ALJ.

Judith A. Ballard

Cecilia Sparks Ford

Marc R. Hillson
Presiding Panel Member

1. For privacy concerns, we do not identify the affected resident with more specificity in this decision. We suggest that the ALJ and the parties should have refrained from identifying the resident by her first name and last initial in the proceedings below and before the Board.

2. The October 3 notice also informed Cherrywood that it would be denied payment for all new admissions effective November 17, 2000, and that its Medicare/Medicaid provider agreements would be terminated effective February 17, 2001. CMS, however, rescinded these two remedies on November 21, 2000, based on an October 26, 2000 revisit survey. CMS Ex. 1.