SUBJECT: Georgian Court Nursing Center,

Petitioner,

Centers for Medicare & Medicaid Services

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Georgian Court Nursing Center (Georgian Court) appealed a July 8, 2002 decision by Administrative Law Judge (ALJ) Jose A. Anglada sustaining the determination by the Centers for Medicare & Medicaid Services (CMS) to terminate Georgian Court's provider agreement effective December 14, 2001. See Georgian Court Nursing Center, DAB CR928 (2002) (ALJ Decision). A series of surveys, beginning on June 14, 2001, by the Oklahoma State Department of Health (state survey agency) had determined that Georgian Court was not in substantial compliance with various requirements for participation in the Medicare program. On November 30, 2001, the state survey agency conducted a third revisit survey and determined again that Georgian Court was not in substantial compliance with three program requirements, including a finding of a deficiency that constituted actual harm to a resident of Georgian Court. CMS then notified Georgian Court that it was terminating its provider agreement, effective December 14, 2001. The ALJ found that Georgian Court was not in substantial compliance with two of the requirements cited as deficiencies in the November 30, 2001 survey, and therefore sustained CMS's termination of Georgian Court's provider agreement.

For the reasons discussed below, we find that there is substantial evidence in the record to support the ALJ's finding that Georgian Court staff failed to follow a physician's order on the proper method to transfer a resident, resulting in that resident suffering actual harm in the form of a broken arm. In addition, we find that there is substantial evidence to support the ALJ's finding that Georgian Court failed to notify the physician and family representative immediately after a change in the same resident's condition when she suffered an injury. Accordingly, we sustain the termination of Georgian Court's provider agreement, for failure of the facility to comply substantially with program requirements during a six-month period.

Standard of review

Before an ALJ, a sanctioned facility must prove substantial compliance by a preponderance of the evidence, once CMS has established a prima facie case that the facility was not in substantial compliance with relevant statutory or regulatory provisions. See Cross Creek Health Care Center, DAB No. 1665 (1998), applying Hillman Rehabilitation Center, DAB No. 1611 (1997) (Hillman), aff'd, Hillman Rehabilitation Center v. HHS, No. 98-3789(GEB), at 25 (D.N.J. May 13, 1999).

A party dissatisfied with an ALJ decision or dismissal may file a written request for review by the Departmental Appeals Board. 42 C.F.R. § 498.82(a). The request must "specify the issues, the findings of fact or conclusions of law with which the party disagrees, and the basis for contending that the findings and conclusions are incorrect." 42 C.F.R. § 498.82(b). On review, the Board may remand to the ALJ, or may modify, affirm, or reverse the ALJ's decision. 42 C.F.R. § 498.88.

The standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record. Guidelines for Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs; see also Hillman, at 6; Fairview Nursing Plaza, Inc., DAB No. 1715, at 2 (2000); South Valley Health Care Center, DAB No. 1691 (1999), aff'd South Valley Health Care Center v. HCFA, 223 F.3d 1221 (10^th Cir. 2000). The standard of review on a disputed issue of law is whether the ALJ decision is erroneous. Id. 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.

Statutory and Regulatory Background

Section 1866(b)(2) of the Social Security Act (Act) authorizes the Secretary to terminate a provider agreement after the Secretary -

(A) has determined that the provider fails to comply substantially with the provisions of the agreement, with the provisions of [title XVIII of the Act] and regulations thereunder . . .
(B) has determined that the provider fails substantially to meet the applicable provisions of section 1861 . . . . ⁽¹⁾

Section 1819(h)(2)(A) of the Act authorizes the Secretary to terminate a facility's provider agreement if the Secretary finds that the facility's deficiencies constitute immediate jeopardy to the facility's residents' health and safety. Section 1819(h)(2)(C) of the Act further provides that payments to a provider may not be continued for more than six months after the provider has failed to be in substantial compliance with the requirements of section 1819. Regulations at 42 C.F.R. § 488.412 provide that, in cases where a facility's deficiencies do not pose immediate jeopardy to resident health and safety, CMS must terminate a facility's provider agreement if the facility is not in substantial compliance within six months of the last day of the survey. Section 488.450(d)of 42 C.F.R. similarly provides that CMS must terminate a provider agreement and discontinue federal funding if a facility fails to achieve substantial compliance by six months from the last day of a survey.

The regulatory requirements for long-term care facilities such as Georgian Court are set forth at 42 C.F.R. Part 483.

The ALJ found that Georgian Court was not in compliance with two of the regulatory requirements set forth at 42 C.F.R. Part 483: sections 483.20(k)(3)(i) and 483.10(b)(11). The former section, under the rubric of resident assessment, requires that a facility must meet professional standards of quality in developing and implementing a comprehensive care plan for each of its residents that allows the resident to maintain his or her highest practicable well-being. The latter section requires, under the rubric of resident rights, that a facility must immediately notify a resident's physician and the resident's legal representative or interested family member where there has been "an accident involving the resident which results in injury and has the potential for requiring physician intervention" or a "significant change in the resident's physical, mental, or psychosocial status (i.e., a deterioration in health, mental or psychosocial status in either life-threatening conditions or clinical complications)."

Compliance with these requirements is determined through the survey and certification process, set out at 42 C.F.R. Part 488, Subpart E. Surveys are generally conducted by a state survey agency under an agreement with CMS. Subpart F of Part 488 specifies the remedies that may be imposed by CMS based on a determination that a facility is not in substantial compliance with the requirements.

The regulations define "substantial compliance" as "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F.R. § 488.301.

Factual and Procedural Background (2)

Georgian Court is a skilled nursing facility located in Tulsa, Oklahoma. On June 14, 2001, the state survey agency conducted a survey at Georgian Court to determine whether the facility was in compliance with federal requirements. The survey found Georgian Court not in substantial compliance. Subsequent revisits by the state survey agency on August 15, 2001, and September 27, 2001 found the facility again not in substantial compliance. The findings of these surveys were not contested by Georgian Court and, consequently, are not at issue before us.

On November 30, 2001, the state survey agency conducted another survey. That survey found Georgian Court not in substantial compliance with five participation requirements. On December 12, 2001, CMS, citing the five areas of noncompliance identified in the November survey, notified Georgian Court that it was terminating Georgian Court's provider agreement effective December 14, 2001, based on the facility's "continuing noncompliance with Medicare/Medicaid requirements." ⁽³⁾

Faced with its impending termination, Georgian Court moved for an expedited hearing, which the ALJ granted. A two-day hearing was held in Tulsa, beginning on January 31, 2002, at which CMS and Georgian Court presented evidence concerning Georgian Court's compliance with the above-cited regulations. ⁽⁴⁾

The ALJ sustained the finding that Georgian Court was not in substantial compliance with these two requirements, both involving the same resident of Georgian Court, designated as Resident 2. ⁽⁵⁾ At the time of the survey, Resident 2 was a 60 year-old woman, approximately 5'7", weighing 130 pounds, who was the victim of a stroke that left her paralyzed on her left side. The physician's orders for Resident 2 directed that Georgian Court use a two-person assist for all transfers of Resident 2, meaning that at least two staff persons had to be present every time Resident 2 was transferred back and forth between her bed and chair. ⁽⁶⁾ On November 25, 2001, at approximately 1:00 pm, a certified medical assistant (CMA) responded to a request from Resident 2 to assist her in moving from her wheelchair to her bed. The CMA attempted to transfer Resident 2 by himself with no other staff person present. He testified that he was not able to move the resident and further indicated that he stopped when he suddenly remembered the resident required a two-person assist. However, he told other Georgian Court personnel that he had lifted the resident as much as 4 to 6 inches and stopped only because he was unable to move her further. He undisputedly did not complete the transfer, placing Resident 2 back in her chair. He then left the resident in her room with a housekeeping employee, and called out for help ⁽⁷⁾ and went to get a certified nursing assistant (CNA). ⁽⁸⁾ The CNA arrived and then, in the CMA's presence, proceeded to transfer Resident 2 to her bed. At that time, no one informed the charge nurse of the unsuccessful transfer attempt.

Later that afternoon, shortly before dinner, Resident 2 complained of pain in her upper left arm. Resident 2 had a history of generally complaining about pain, for which she received Tylenol administered on a scheduled basis, and the narcotic drug Lortab administered on an as-needed basis. The charge nurse on duty examined Resident 2's arm, touching and moving it, and found no bruising or swelling. The Resident told the charge nurse that the CMA had hurt her arm in attempting to transfer her. The charge nurse asked Resident 2 if she wanted her doctor called, but Resident 2 replied in the negative. On the morning of November 26, 2001, the same charge nurse again examined Resident 2 after she continued to complain of pain in her arm. The charge nurse found that Resident 2's left shoulder was bruised and swollen. The charge nurse then telephoned Resident 2's physician who directed that Resident 2 be taken for X-rays. The X-rays disclosed a sub-capital displaced fracture of her upper left arm, specifically a fracture of the humeral head. After discovery of this fracture, Resident 2 was diagnosed as suffering from osteoporosis. ⁽⁹⁾

In the statement of deficiencies recorded for the November 30, 2001 survey, the surveyor reported that she observed Resident 2 with bruising on her left shoulder. P. Ex. 2, at 6. The statement of deficiencies noted that Resident 2 had a physician's order dated November 7, 2001 stating, "Two person assist for all transfers." Id. When asked by the surveyor how the bruising had occurred, Resident 2 responded:

[H]e let me fall, he was transferring me from the wheel chair to the bed and would not let my arm go when I was falling and he put me back into the wheel chair."

Id. at 6 - 7. The state surveyors cited Georgian Court for a deficiency at a scope and severity level of G, reflecting an isolated incident resulting in actual harm. Id. at 6.

The resident consistently gave the same account of her injury to the charge nurse, the director of nursing, the orthopedic specialist who treated her for the broken arm, and one of the surveyors-that the CMA, in mishandling her transfer, accidentally injured the resident.

The ALJ Decision

In his decision, the ALJ made seven findings of fact and conclusions of law (FFCLs), six of which were challenged by Georgian Court on appeal:

FFCL 1. The facility was not in substantial compliance with federal participation requirements from June 14, 2001 through December 14, 2001.

FFCL 2. The facility failed to follow the physician's order for a two-person assist for all transfers, which resulted in an injury to Resident #2.

FFCL 3. Petitioner's failure to comply with the treating physician's order for a two-person assist constitutes a violation of the professional standards of quality.

FFCL 4. Petitioner's violation of the professional standards of quality constitutes actual harm.

FFCL 5. The facility failed to notify the physician and family representative immediately after a change in Resident 2's condition when she suffered an injury.

FFCL 7. CMS appropriately terminated Petitioner's provider agreement because the facility was not in substantial compliance with federal participation requirements from June 14, 2001 through December 14, 2001.

In making his FFCLs regarding the attempted unassisted transfer of Resident 2, the ALJ noted discrepancies between the testimony of the CMA regarding the attempted transfer and statements the CMA gave to Georgian Court's Director of Nursing days after the incident. While the ALJ questioned in his decision the CMA's ability to make an unassisted transfer of Resident 2, he emphasized that it was the intention of the CMA to perform an unassisted transfer, rather than his inability to complete it, that constituted an "undeniable failure to carry out the physician's order" that called for two-person assisted transfers, and that this failure constituted an inadequacy of care in violation of 42 C.F.R. § 483.20(k)(3)(i). ALJ Decision at 7. The ALJ found that Georgian Court had failed to offer any evidence that in regard to the November 25 incident it had complied substantially with the requirement to transfer Resident 2 with a two-person assist. As to the cause of Resident 2's fractured arm, the ALJ noted that Resident 2's account of how her arm was broken was consistent at all times. The ALJ discounted Georgian Court's theory that the fractured arm resulted from the resident turning over in her bed. The ALJ found that -

I find that an inept and improper transfer attempt of [Resident 2] on November 25, 2001, was followed by a complaint of arm and shoulder pain. The resident's complaint of pain was still present the following day, when an x-ray showed a displaced fracture. A surveyor observed bruising on the left shoulder, in an area adjacent to the fracture. This cumulative evidence is contemporaneous with the transfer attempt and is more telling of a fracture arising out of the CMA's improper transfer attempt than from [Resident 2]'s rolling in bed. Of the former, there is ample evidence, but of the latter, the record is totally silent. Consequently it is my finding that [Georgian Court]'s failure to substantially comply with the standards of professional quality caused actual harm to [Resident 2].

ALJ Decision at 11.

As to the deficiency under the standard set forth at 42 C.F.R. § 483.10(b)(11) for failure to notify Resident 2's physician of a change in her status, the ALJ stated that the issue was not whether Georgian Court knew or had reason to know that Resident 2 had in fact fractured an arm on November 25, 2001, but rather whether a change occurred in the resident's condition that was significant enough to require immediate notification to the physician and family representative. In finding that Georgian Court failed to comply with the section 483.10(b)(11) standard, the ALJ cited such factors as Georgian Court knowing that an improper transfer had been attempted, Resident 2 complaining of pain in her arm hours later and naming the attempted transfer as the cause, the frailness of Resident 2 and her diagnosis of osteoporosis, and the charge nurse's conversations with the CMA about the attempted transfer. ALJ Decision at 13. The ALJ stated that Georgian Court failed to provide any persuasive reason to justify why the charge nurse did not contact the physician, finding that Georgian Court "laid no foundation for its action in this case" and concluding:

The facility had an unequivocal duty to inform the physician as well as the family representative that as a result of an aborted transfer, the resident, who had frail and brittle bones, was complaining of pain in the arm and shoulder. Once the facility discharged that duty, it was up to the physician to decide what diagnostic approach he wished to pursue. . . . It was reasonable to conclude that the pain that ensued after the aborted transfer was a result of an injury suffered by the resident.

ALJ Decision at 14.

Because Georgian Court had not been in substantial compliance at the time of the June 14, 2001 survey and had not demonstrated that it had achieved substantial compliance before the December 14, 2001 termination date, the ALJ concluded that under section 1819(h)(2)(C) of the Act termination of Georgian Court's provider agreement was required as CMS could not allow a deficient facility to continue program participation for more than six months. ALJ Decision at 19 - 20.

Discussion

I. The ALJ made no material procedural errors that warrant the reversal of his decision.

Georgian Court argued that the ALJ made a number of procedural errors in his decision. Most significantly, according to Georgian Court, the ALJ did not follow the holding of Hillman in requiring CMS to make a prima facie case of any regulatory violation. Specifically, Georgian Court questioned what kind or quantum of evidence CMS must produce, under Hillman, to meet its initial burden, or how that evidence must be presented. Georgian Court insisted that, in order to establish a deficiency under the regulations, CMS must be required to offer proof of causation to make out a prima facie case. Without this proof of causation, Georgian Court maintained, a strict liability standard would in effect be imposed, a standard which the Board in numerous decisions has ruled is not incorporated in the Medicare requirements of participation. Georgian Court argued that Hillman never addressed this issue and asked the Board, in light the recent case of Fairfax Nursing Home, Inc. v. Department of Health and Human Services, 300 F.3d 835 (7th Cir. 2002), cert. denied, 2003 WL 98478 (Jan. 13, 2003), to address the question of what evidence is necessary for CMS to meet its burden to establish a prima facie case. ⁽¹⁰⁾ Georgian Court contended that before the ALJ CMS offered no expert witnesses, and no outside treatise or memoranda on proper transfer technique or the causation of fractured humeral heads, but offered only the speculation of a state surveyor. Georgian Court urged the Board to make clear that in its prima facie case CMS must be required to offer some causative link between the act or omission it says is a deficiency and some actual harm or non-hypothetical risk of harm.

The ALJ properly applied the Hillman standard here. In Hillman, we stated that CMS "has the burden of coming forward with evidence related to disputed findings that is sufficient (together with any undisputed findings and relevant legal authority) to establish a prima facie case." Id., at 8. The ALJ correctly determined that CMS did not need to prove that the attempted transfer caused the injury to Resident 2 in order to establish a prima facie case of noncompliance since failure to meet professional standards of quality would be legally sufficient, irrespective of the result of the failure, to show noncompliance with the requirement. The elements of a prima facie case that Georgian Court did not follow a professional standard, could include either undisputed findings or evidence that (1) professional standards required the staff to follow physician's orders and (2)the staff did not obey Resident 2's physician's order for a two-person assisted transfer. The burden then would shift to Georgian Court to rebut that prima facie case. The cause of Resident 2's fracture, on the other hand, went to the scope and severity of the deficiency. From the evidence before him, including the testimony of the witnesses, the ALJ was entitled to draw inferences on how the fracture was likely to have taken place. Even if these inferences were not reasonable, however, the lack of a causative link would not be fatal to the CMS case, since a showing of actual harm was not required. If there was a potential for more than minimal harm, this facility was not in substantial compliance and CMS had a legally sufficient basis for termination.

Georgian Court further alleged that at the hearing the ALJ committed numerous material errors in evidentiary and procedural rulings which denied Georgian Court a fair opportunity to respond to CMS's allegations. Georgian Court vigorously argued that the ALJ committed a material prejudicial error by refusing to permit a re-enactment by the CMA of how he attempted to transfer the resident. Instead, the ALJ allowed the CMA only to verbally describe how he attempted the transfer. Similarly, the ALJ refused to allow Resident 2's physician to answer whether that attempted transfer, as demonstrated to him earlier by the CMA prior to the hearing, could have generated the type of shear force necessary to cause a displaced fracture. Tr. I at 143. Georgian Court contended that this was also error.

The ALJ was correct in both his rulings. First, the ALJ was entitled to restrict the use of demonstrative evidence, particularly where, as here, there was no prior request to videotape such a demonstration, and where the narrative description of the witness was sufficiently clear so as to enable the ALJ (and subsequently the Board) to understand how the lift was allegedly attempted. Indeed, the ALJ similarly restricted the testimony of a CMS witness, who also sought to demonstrate her understanding of the attempted transfer. Tr. I at 57-58. If anything, the ALJ demonstrated an even-handed approach to the taking of evidence, and was well within his discretion to not allow demonstrative testimony under the circumstances presented here.

As to the physician's testimony, the physician did testify that he was not certain how Resident 2 fractured her arm (Tr. I at 141) and speculated that it could have been caused by the resident rolling over while in bed. He further stated that people who are "debilitated" (the Resident's injured arm was hemiplegic and basically hung by her side) react more slowly in terms of showing signs of fracture, such as reddening and bruising, and that sometimes it could take days before evidence of a fracture would show. Tr. I at 150-158. Thus, the physician was permitted to opine as to the cause of the Resident's injury, and basically stated he was not certain. As to whether the physician should have been allowed to testify as to whether the injury could have occurred if the transfer attempt took place as described in the CMA's testimony, such testimony would have been immaterial given that the ALJ utterly discredited the CMA's testimony. Thus, any error in not permitting the testimony was harmless.

II. Georgian Court failed to provide the professional standard of care required by 42 C.F.R. § 483.20(k)(3)(i) by not following a physician's order on the proper method to transfer a resident.

Georgian Court argued that CMS did not show that Georgian Court violated any physician order, care plan or professional standard with respect to Resident 2. Georgian Court contended that since the CMA, according to his testimony, never began to transfer the resident, and in any event undisputedly did not complete the transfer, then Georgian Court could not be charged with violating this standard. Georgian Court further contended that CMS never showed that Georgian Court caused any injury to the resident.

Determining whether the alleged failure of Georgian Court's staff to follow the physician's order amounted to a failure to substantially comply with the requirement set forth at section 483.20(k)(3)(i), does not of itself require a determination as to whether the attempted unassisted lift of Resident 2 contributed to her fractured arm. However, whether Resident 2 suffered actual harm goes to the scope and severity of the alleged deficiency. It is manifestly obvious that the risk of injury from improperly transferring an elderly resident, which could include dropping a resident on the floor among other things, presents a significant risk of injury sufficient to constitute a lack of substantial compliance.

Georgian Court contended that CMS failed to offer any evidence whatsoever regarding any "professional quality of care" as to resident transfers. However, there was never a dispute that Resident 2's physician had ordered a two-person assisted transfer. An improper transfer of a patient in direct contravention of a physician's orders and the comprehensive care plan can reasonably be viewed as a failure to "[m]eet professional standards of quality" in violation of the cited regulation. Georgian Court seems to imply that to support a violation of this regulation CMS must present documentary evidence of professional standards or testimony of someone formally qualified as an expert. While it would seem fairly obvious that failure of a facility to follow a physician's specific orders on treating a patient would, in the absence of unusual circumstances, be failure to comply with professional standards of quality, here Georgian Court's own medical expert, who was Resident 2's attending physician, Tr. I at 78-9, testified that his expectation was that when he provides a physician's order to a nursing home, they would follow the order. Id., at 173. Likewise, a nurse/surveyor for CMS testified as to the importance of following physician orders. Tr. II at 16. In the absence of any evidence that failure to follow a physician's orders would not violate professional standards, we affirm the ALJ on this issue.

Georgian Court also questioned the reliance of the ALJ on any statements of Resident 2, because her diagnosis included being delusional. However, such a condition does not preclude reliance on all statements by the Resident. The consistency Resident 2 displayed in describing how her injury occurred is striking. On November 25, 2001, she told the charge nurse that she had been injured hours earlier in the attempted transfer. The next day she recounted the same story to the doctor who x-rayed and treated the fracture. On November 30, she repeated the same account to the state surveyor. In the absence of any other explanation as to how the injury occurred, the ALJ reasonably gave some weight to Resident 2's account as expressed to other witnesses who testified at the hearing. These accounts were contemporaneous with the events at issue and, as such, should be afforded some weight, even with Resident 2's delusional episodes, in considering the probable cause of the fracture. These accounts all appeared to be lucid, consistent, and in accord with initial statements of the CMA--even to the point of exonerating him from any intentional abuse when questioned by the physician treating her at the hospital. ⁽¹¹⁾

Georgian Court's argument that it can be cited for an improper transfer only if the transfer is complete is also unpersuasive. In making this argument, Georgian Court relied on the testimony of the CMA that he started to transfer Resident 2, but halted when he remembered that a two-person assisted transfer was mandated. Tr. II at 129. Georgian Court questioned how an attempted but never realized transfer would amount to a regulatory violation, likening the attempted transfer to the situation when a nurse picks up an incorrect medication, but then realizes her mistake and administers the correct medication. Under this analogy, it would not matter whether the CMA stopped the transfer before it started--that is, as he testified, he stopped without even moving the resident when he suddenly realized there was a two-person assisted transfer requirement-- or whether he in fact lifted the resident four to six inches or even dropped her on the floor before abandoning the transfer attempt. If the CMA did stop before he even started, there would not have been a violation of the two-person transfer requirement. However, the ALJ found that a transfer was begun but not completed. This finding was based on the CMA's contemporaneous discussions with Georgian Court staff, the statements of Resident 2, and the fact that the Resident sustained a broken arm, and thus is supported by substantial evidence in the record. ⁽¹²⁾ Even if the CMA had lifted the resident with a gait belt, as he testified, rather than by the waistband of the resident's pants, as he told the Director of Nursing (CMS Ex. 15), placing her left arm on his right arm in either case, the fact remains that substantial evidence supports the ALJ's finding that the CMA moved Resident 2 improperly, with no other staff present, and that the Resident was subsequently discovered to have a broken arm.

While there was no definitive evidence of how Resident 2's fracture occurred, the ALJ was entitled to make a reasonable inference. No other plausible event, other than the attempted unassisted transfer, was cited as to how the injury might have occurred. Resident 2's physician speculated that the injury might have occurred as a result of Resident 2 turning over on her arm while in bed. That raises the question, however, of why, considering all the times Resident 2 might have rolled over on her arm, she never fractured her arm until some time within the 18 hours following the attempted transfer.

Furthermore, the ALJ, in presiding at the hearing, was in the best position to judge the demeanor and credibility of the witnesses before him. He found the testimony of the CMA regarding the CMA's attempted transfer of Resident 2 inconsistent with prior statements the CMA had made, and accordingly found the testimony not credible. In general, as an appellate body, we do not disturb an ALJ's assessment about the credibility of testimony by witnesses who appear in person at the hearing absent a compelling reason to do so. Thus, the Board has held that --

[a] reviewing panel does not have the opportunity to evaluate the credibility of a witness by listening in person to the witness's testimony or observing the witness's demeanor. The evaluation of the credibility of a witness is properly left to the hearing officer. . . .  Thus, we defer to the ALJ's evaluations of the credibility of the witnesses who appeared before him in this matter.

South Valley Health Care Center, at 22 (1999). After reading the transcript of the hearing, we have no reason to question the ALJ's judgment on this particular issue.

Georgian Court has failed to persuade us that the ALJ's analysis in support of his finding that Georgian Court failed to substantially comply with the standards of professional care, resulting in actual harm to Resident 2, was incorrect. Accordingly, we find that Georgian Court was not in substantial compliance with 42 C.F.R. § 483.20(k)(3)(i), and that this deficiency resulted in actual harm to Resident 2.

III. The ALJ finding that Georgian Court was in violation of the requirement set forth at 42 C.F.R. § 483.10(b)(11) is supported by substantial evidence.

Georgian Court also took exception to the ALJ's FFCL 5, where he found that Georgian Court "failed to notify the physician and family representative immediately after a change in Resident 2's condition when she suffered an injury." Georgian Court argued that CMS failed to present a prima facie case that the requirement was violated, and that the charge nurse acted appropriately when she did not call Resident 2's physician and family representative until November 26, the day after the improper attempted transfer by the CMA.

Section 483.10(b)(11) requires that a facility must immediately consult with the resident's physician when there has been (A) "an accident involving the resident which results in injury and has the potential for requiring physician intervention" or (B) "a significant change in the resident's physical, mental, or psychosocial status." Here, the crux of CMS's allegation against Georgian Court was that Georgian Court did not contact Resident 2's physician concerning the incident involving the attempted transfer in the afternoon of November 25 until the morning of November 26. The ALJ Decision emphasized that the issue presented by the deficiency tagged by the state survey agency was not whether Georgian Court knew or had reason to know that Resident 2 had fractured her arm, but whether a change in Resident 2's status had occurred that was significant enough to warrant immediate notification of her physician. In finding that there was a significant change in Resident 2's status, the ALJ focused largely on the actions of the charge nurse, emphasizing among other things, her presumed knowledge of the unassisted transfer and of Resident 2's osteoporosis as indications that Georgian Court through its charge nurse should have contacted the physician. In concluding that Georgian Court had failed to comply with the requirements of 42 C.F.R. § 483.10(b)(11), the ALJ stated that Georgian Court had the duty to inform Resident 2's physician that, as a result of the attempted transfer, the resident "who had frail and brittle bones" was complaining of pain in her arm and shoulder. ALJ Decision at 14.

Georgian Court argued that the ALJ's conclusions were not supported by any evidence and were actually contradicted by the evidence in several material aspects. ⁽¹³⁾ Georgian Court specifically questioned whether there was a "significant change" in Resident 2's status, required to trigger section 483.10(b)(11), as that term is defined in CMS's State Operations Manual. Georgian Court argued that all the events listed therein as examples of significant changes shared the characteristic of having physical or behavioral manifestations readily observable by a reasonably competent nurse. Georgian Court stated that here the surveyor had improperly second-guessed the charge nurse's diagnostic skills in light of subsequent events or knowledge. Georgian Court insisted that unless the evidence showed that one of its nurses failed to respond to signs and symptoms of a serious arm injury, it cannot be said that it violated section 483.10(b)(11).

In the ALJ's analysis, the issue of whether Georgian Court met the requirements of section 483.10(b)(11) turned on the actions of the charge nurse on duty the afternoon and night of November 25, 2001. She was the only member of Georgian Court's staff who, from the record before us, had significant contact with Resident 2 for the roughly 18-hour period between the time the resident first complained of pain in her arm and the time the resident's physician was contacted. Although the ALJ based his finding in part on a diagnosis of osteoporosis that was not made until after the physician had been notified, any error made by the ALJ here was harmless, since there were other grounds on which the ALJ could have found that the facility should have known notification of her physician was required. Specifically, we find that the charge nurse should have called the physician sooner since the cited regulation requires notification when there is either "(A) An accident involving the resident which results in injury and has the potential for requiring physician intervention" or "(B) A significant change in the resident's physical . . . status." Thus, the ALJ's determination that the regulation was violated was not erroneous.

The Board has long held that a facility is responsible for the acts of its employees, and we would be reluctant to hold that a facility is absolved from compliance with the notification regulation if the employee who causes the injury does not share that information with other facility employees. Further, the fact that the CMA improperly transferred Resident 2, and that soon after Resident 2 was complaining about pain in her arm, should have in itself put the facility on notice that the accident had the potential for requiring physician intervention or that a significant change had occurred in Resident 2's physical status. Given the detailed explanation offered by Resident 2, the charge nurse could have consulted with the CMA, and the CNA who eventually accomplished the transfer properly, to determine what had transpired with respect to the transfer.

Georgian Court contended that the charge nurse, with 30 years of experience, acted appropriately here. We disagree. While Resident 2 had a history of regularly complaining, there is no evidence that her previous complaints ever focused on her hemiplegic arm. Her history of complaining was generally related to her wanting to get moved back to her room after eating. Tr. II at 213. When Resident 2 complained on the afternoon of November 25 of pain in her left arm and shoulder, the charge nurse examined Resident 2's arm, finding no evidence "of swelling, bruising, nothing out of the ordinary." Tr. II at 195; CMS Ex. 14. She manipulated Resident 2's wrist and elbow. Tr. II at 198. She inquired of Resident 2 if the resident wanted to see her physician. Resident 2 replied that she was feeling better, wanted to get up for supper, and did not want the charge nurse to call her physician. Tr. II at 225. She continued to monitor Resident 2 periodically during the rest of her shift, finding "nothing unusual with the resident." Tr. II at 198 and 224. There were no further complaints from the resident during the rest of the charge nurse's shift which ended at 11:00 p.m. Tr. II at 201 and 214. There is no indication that Resident 2 made any further complaints about pain during the night to the night nurse. Tr. II at 214. When the charge nurse returned the next morning at 7:00 a.m., she again examined Resident 2's arm, noticed a change in Resident 2's condition through signs of bruising, and immediately contacted Resident 2's physician.

While on the surface, the charge nurse's actions might appear sufficient, Georgian Court's own physician witness stated that patients such as Resident 2, who are "debilitated," would be more likely not to show the typical bruising and swelling associated with a fracture as quickly as someone who was relatively healthy. Tr. I at 150-158. Thus, while the charge nurse did not know of Resident 2's osteoporosis, she should have known that someone in her generally debilitated condition, especially someone complaining of injury to a hemiplegic limb after an improper transfer, would not show the signs she was examining her for that soon after an injury and that her examination could not substitute for a physician's intervention. Further, the charge nurse knew that Resident 2 believed that the CMA had improperly transferred her and had hurt her in the process, yet the evidence indicates no attempt by her to investigate the matter by talking with the CMA, or any other personnel. In any event, as we concluded above, the facility knew of the potential need for physician intervention based on the CMA's knowledge of what had occurred during the improper transfer. We have already found that substantial evidence supported the ALJ finding that Resident 2 suffered an injury during an improper transfer attempt, and there is no dispute that even the potential for an injury as serious as a broken arm necessitated treatment by a physician.

Accordingly, we conclude that the ALJ's ultimate conclusion that Georgian Court violated the notification requirement set forth in section 483.10(b)(11) was supported by the substantial evidence.

However, we modify FFCL 5 to read:

The facility failed to notify Resident 2's physician and family representative immediately after (1) Resident 2 was involved in an accident resulting in injury which had the potential for requiring physician intervention and (2) Resident 2's physical status had undergone a significant change.

IV. Georgian Court never proved that it had achieved substantial compliance before its termination date.

Georgian Court also argued that FFCL 1 was incorrect and that the ALJ erred in stating that Georgian Court did not demonstrate that it was in substantial compliance before the December 14, 2001 termination date. ALJ Decision at 19. Georgian Court maintained that there was no allegation that it was noncompliant with any regulatory requirement between November 26, the day following the improper transfer, and December 14, 2001, the actual termination date. According to Georgian Court, even if the Board were to accept CMS's allegations about the deficiencies at face value, CMS still failed to prove that Georgian Court was not in substantial compliance as of December 14, 2001. Georgian Court contended that CMS offered no evidence as to what deficient practices existed at the facility on December 14, 2001 as a predicate for the termination action that took effect that day. Georgian Court stated that if it corrected the deficiencies that were found by the November 30, 2001 survey before the termination date two weeks later, there was no legal basis for its termination. Georgian Court insisted that the proper remedy for past noncompliance was the imposition of a civil money penalty, not a termination.

There appears to be some confusion on the part of Georgian Court about the burden of the parties here. Once CMS established a prima facie case that Georgian Court failed to substantially comply with the participation requirements, Georgian Court had the burden of establishing either 1) that the survey findings were incorrect and that it was in compliance with all requirements, or 2) if the findings of noncompliance were established, that it had returned to compliance prior to the termination date. As we found above, Georgian Court failed to rebut CMS's prima facie case. Georgian Court therefore, if it wished to avoid termination, had to establish that it returned to substantial compliance. Georgian Court, however, failed, either before the ALJ or on appeal, to point to any corrective action it took in response to the November 30, 2001 survey findings. After the original June 14, 2001 survey, the state survey agency conducted three re-visits, all of which found Georgian Court not in substantial compliance due to varied deficiencies. There was no obligation on CMS's part to direct another re-survey of Georgian Court. In fact, there is not any indication in the record that Georgian Court even requested another re-visit after the November 30, 2001 survey. There is no basis, therefore, for Georgian Court's position that it was in substantial compliance before December 14, 2001. The result of a facility's failure to come in to substantial compliance within six months from the last day of a survey is mandatory termination, pursuant to section 1819(h)(2)(C) of the Act, and regulations at 42 C.F.R. §§ 488.412 and 488.450(d). See Cary Health and Rehabilitation Center, DAB No. 1771, at 5 (2001); Emerald Oaks, DAB No. 1800, at 39-40 (2001).

Conclusion

For the reasons discussed above, we sustain the ALJ Decision's terminating Georgian Court's provider agreement. In doing so we modify FFCL 5 and affirm and adopt all remaining FFCLs made by the ALJ.

Judith A. Ballard

Donald F. Garrett

Marc R. Hillson
Presiding Board Member

1. Section 1861 of the Act defines and details the services provided under the Medicare program.

2. The facts included in this general background are drawn from the ALJ Decision which contains relevant citations and are presented here merely to provide a general framework for understanding the rest of our decision. They are not intended to substitute for the ALJ's findings.

3. CMS's notice informed Georgian Court that it was also imposing the remedies of a denial of payment for new Medicare/Medicaid admissions effective September 21, 2001, and a civil money penalty in the amount of $100 per day. CMS, however, did not further pursue these two remedies, and, consequently, they were not raised before the ALJ.

4. A third alleged instance of noncompliance was also litigated, but the ALJ found in favor of Georgian Court and CMS did not appeal to the Board.

5. In his decision, the ALJ found that CMS had failed to prove that Georgian Court was out of compliance with 42 C.F.R. § 483.20(k)(1) regarding the development of a comprehensive care plan for another resident at the facility. CMS did not appeal that finding, and, consequently, that deficiency is not at issue before us.

6. As distinguished from a two-person transfer, requiring two people to actually move the resident. Tr. I at 56-57.

7. At least one witness claimed that the CMA "hollered "help, help, help' three times, 'help, Amber'", Tr. I, 92-93, and the CMA himself said he did not yell "at the top of his lungs" but stated "[s]omebody help me." Tr. II, 131-2.

8. The CMA was also a CNA, trained in how to transfer patients properly.

9. Although the ALJ based his noncompliance finding with respect to the immediate notification deficiency on Georgian Court's presumed notice of Resident 2's osteoporosis diagnosis, it is undisputed that that diagnosis had not been made at the time of the events at issue here. See discussion, infra, pp. 16-19.

10. In Fairfax, the court sustained the Board's affirmation of an ALJ decision to impose a civil money penalty (CMP) on a skilled nursing facility. The facility argued the standard advanced by the Board in Hillman, and applied to CMP cases in Cross Creek, was required to have been promulgated by notice-and-comment rulemaking and further was in violation of section 7(c) of the Administrative Procedure Act, which places the burden of proof on the proponent of a rule or order. In declining to decide these issues, the court noted that the Board had not explained the application of the rule in Hillman to CMP cases and stated that the Board should "set forth in more plenary fashion than it has in this case the justification for this rule." At n.4. The Court also noted that the rule in Hillman is operative only when the evidence is in equipoise, which the court found was not the situation before it.

Regarding Georgian Court's reliance on this language from Fairfax, we first note that this case, like Hillman, involved the termination of a facility, and not a CMP as in Fairfax. We further note that the evidence here was not in equipoise. Accordingly, we see no reason to revisit the Hillman analysis here, even in light of the Fairfax decision.

11. The orthopedic specialist that treated the resident in the hospital questioned her as to the cause of the injury-properly attempting to determine whether she might have been the victim of abuse. She told him that it was an accident. Tr. I at 63.

12. The ALJ had much to rely on in finding the CMA's account of events at the hearing not credible. He told the Director of Nursing that he lifted the resident 4-6 inches before abandoning the transfer attempt. He called for assistance and left the resident in the care of another staffer while he found a CNA to complete the transfer. According to the Director of Nursing, the CMA should have known how to transfer a patient but he had made it clear that he did not want to do CNA work and generally avoided doing transfers. In his earlier accounts, he stated he lifted the resident by the waistband of her pants--clearly an improper technique-but at the hearing he stated he attached a gait belt, which staff who do transfers--which would not include him-- normally carry on their person. Tr. II 230-237.

13. Georgian Court noted that the surveyor's original statement of deficiencies, P. Ex. 1, stated that the incident concerning Resident 2 had occurred on November 24, 2001, rather than the actual date of November 25, with the implication that the facility had waited an additional 24 hours before contacting Resident 2's physician on November 26.