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CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
IN THE CASE OF  


SUBJECT: Vandalia Park,

Petitioner,

DATE: August 24, 2004

             - v -

 

Centers for Medicare & Medicaid Services

 

Docket No. A-04-77
Civil Remedies CR1131
Decision No. 1939
DECISION
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REMAND OF
ADMINISTRATIVE LAW JUDGE D
ECISION

Vandalia Park (Vandalia) appealed the January 15, 2004 decision of Administrative Law Judge (ALJ) Steven T. Kessel sustaining the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a civil money penalty (CMP) on Vandalia of $250 per day for the period September 20, 2002 through October 17, 2002. Vandalia Park, DAB CR1131 (2004) (ALJ Decision). CMS had imposed the CMP based on a survey by the Ohio Department of Health (State agency) that found that Vandalia was not in substantial compliance with the Medicare participation requirements at 42 C.F.R. §§ 483.13(b) and (c), 483.15(g) and 483.25. The ALJ decided the case without an in-person hearing. He granted CMS's motion for summary judgment, which Vandalia opposed on the ground that there were genuine issues of material fact on which it was entitled to a hearing. The ALJ determined that Vandalia did not raise any disputes of material fact and that the undisputed facts supported the imposition of the CMP.

As discussed below, we conclude that Vandalia raised some genuine disputes of material fact (including with respect to "facts" the ALJ determined were material but undisputed). Our conclusion does not imply that Vandalia's evidence was necessarily credible or that the inferences Vandalia relied on were necessarily the most plausible, but only that the relative weight of the parties' evidence and contentions should not be the subject of summary judgment where such genuine disputes of material fact exist. Therefore, Vandalia was entitled to a hearing, and summary judgment in favor of CMS was not appropriate.

Accordingly, without resolving the merits of those disputes, we remand this case to the ALJ for further proceedings, consistent with our decision.

Legal Background

Vandalia is a skilled nursing facility (SNF) that participates in the Medicare program. The regulatory requirements for SNFs and other long-term care facilities participating in Medicare are set forth at 42 C.F.R. Part 483. Compliance with the participation requirements is determined through surveys performed by state agencies under contract with CMS. Survey results are reported in a Statement of Deficiencies (SOD). 42 C.F.R. § 488.325(a).

A CMP may be imposed against a facility that is not in "substantial compliance" with one or more participation requirements. 42 C.F.R. § 488.408(d). A facility is not in "substantial compliance" with a participation requirement if it is found to have a deficiency that results in actual harm to a resident or poses a risk of more than minimal harm to resident health and safety. 42 C.F.R. § 488.301. A CMP in the range of $50-$3,000 per day may be imposed for one or more deficiencies that do not constitute "immediate jeopardy" but that either cause actual harm or create the potential for more than minimal harm. 42 C.F.R. § 488.438(a). Within the applicable range, the regulations provide a number of factors to be considered by CMS in determining an appropriate CMP amount. These factors are the facility's history of noncompliance, its financial condition, its culpability for the cited deficiencies, the scope and severity of those deficiencies, and the relationship between or among the deficiencies. 42 C.F.R. § 488.438(f)(3), incorporating by reference 42 C.F.R. § 488.404.

Under 42 C.F.R. Part 498, a facility on which a CMP is imposed has a right to request a hearing by an ALJ assigned to the Departmental Appeals Board and a right to request review of an ALJ decision by the Board itself.

Case Background

The following background information is drawn from the ALJ Decision and the record before the ALJ.

The State agency conducted a complaint survey of Vandalia on September 20, 2002, during the course of which it determined that Vandalia had failed to keep Resident 106 free from physical abuse as required by section 483.13(b); failed to promptly report an incident of alleged abuse as required by 483.13(c); failed to provide Resident 7 with medically related social services as required by section 483.15(g); and failed to provide Resident 69 with adequate care and services as required by section 483.25.

CMS notified Vandalia on October 3, 2002 that it was not in substantial compliance with Medicare and Medicaid participation requirements. CMS also advised Vandalia of its decision to impose a $250 per day CMP effective September 20, 2002. The State agency performed a revisit survey on October 22, 2002. Based on the findings of that survey, CMS determined that Vandalia had achieved substantial compliance as of October 18, 2002. Accordingly, CMS informed Vandalia that the total CMP imposed was $7,000 (equal to $250 per day for the 28 days beginning on September 20, 2002 and continuing through October 17, 2002). ALJ Decision at 1 and 2; CMS Exs. 1 and 2.

The ALJ issued an initial pre-hearing order on December 9, 2002, directing the parties to file pre-hearing exchanges including:

1. A list of all proposed exhibits, with the written direct testimony of each proposed witness;
2.
A copy of each proposed exhibit;
3.
A list of all proposed witnesses; and
4.
A copy of any prior written statement by any proposed witness.

The order directed CMS and Vandalia to file their exchanges by April 7, 2003 and May 7, 2003, respectively. CMS filed its exchange as directed, providing 22 exhibits, including written direct testimony for 2 witnesses. Vandalia did not make any submission. On August 12, 2003, the ALJ issued an order directing Vandalia to file its pre-hearing exchange by August 25, 2003 and to show cause why its pre-hearing exchange should be received untimely. The order also warned Vandalia that failure to comply might result in sanctions.

On August 22, 2003, Vandalia filed a list of exhibits and witnesses. The proffered witnesses were -

    • Sharon Chasteen (Strategic Nursing Systems);
    • Jennifer Strickland (Administrator); and
    • Michael Federinko, RN, DON (Director of Nursing).

Vandalia did not include in its exhibits the written direct testimony of each proposed witness, as ordered by the ALJ. Instead, Vandalia referenced various unsworn witnesses' statements found in the proffered exhibits. Finally, Vandalia did not address the issue of good cause for its failure to file its exchange on time.

On CMS' motion to dismiss, or, alternatively, for an order to strike Vandalia's pre-hearing brief and exhibits, and to exclude Vandalia's proposed list of witnesses, the ALJ decided to sanction Vandalia by limiting its case to the evidence proffered in its August 22, 2003 pre-hearing submissions.

The ALJ scheduled an in-person hearing for February 5, 2004. CMS moved for summary judgment, alleging that there was no dispute regarding the facts underlying the deficiency findings. Vandalia opposed the motion, alleging that there were genuine issues of material fact, and that CMS was not entitled to judgment as a matter of law.

ALJ Decision

The ALJ made four numbered findings of fact and conclusions of law (FFCLs):

FFCL 1. Summary disposition is appropriate.

FFCL 2. Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.13(b), (c) and 42 C.F.R. §§ 483.15(g) and 483.25.

FFCL 3. Petitioner's noncompliance persisted during a period that began on September 20, 2002 and ran through October 17, 2002.

FFCL 4. It is reasonable to impose civil money penalties of $250 for each day of the period that began on September 20, 2002 and ran through October 17, 2002.

ALJ Decision at 2-15. The ALJ based FFCL 2 on findings involving Residents 7, 69, 106, 126, and 127.

In its request for review of the ALJ's Decision, Vandalia disputed all four FFCLs. Vandalia argued that it was entitled to an evidentiary hearing on the issue whether it substantially complied with the requirements of participation at 42 C.F.R. §§ 483.13(b) and (c), 483.15(g), and 483.25 since there were material facts in dispute. Vandalia also took exception to the ALJ's finding that the CMP amount was reasonable.

ANALYSIS
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Whether summary judgment in favor of CMS was appropriate is a legal issue that we must examine de novo. On that issue, the ALJ's analysis does not fully withstand scrutiny. Below, we first discuss the applicable standards for determining whether summary judgement is appropriate. We then consider whether those standards, properly applied, justify summary judgment on the record as developed before the ALJ.

1. The ALJ referenced the proper standard for summary judgment.

The issues of whether and when an ALJ may resolve a case under Subpart D of Part 498 by summary judgment without holding an in-person hearing have been the subject of much recent litigation before the Board and the courts. See, e.g., Madison Health Care, Inc., DAB No. 1927 (2004); Lebanon Nursing and Rehabilitation Center, DAB No. 1918 (2004); Crestview Parke Care Center, DAB No. 1836 (2002), rev'd sub nom, Crestview Parke Care Center v. Thompson, 373 F.3d 743 (6th Cir. 2004). The right to a hearing in these matters is a statutory one. The Social Security Act (Act) expressly requires that an adversely affected person have an opportunity for a hearing "on the record," which term of art triggers the provisions of the Administrative Procedure Act detailing formal adjudicatory process including an oral evidentiary hearing before an ALJ. Section 1128A of the Act; 5 U.S.C. §§ 554(a), 556(d), 557. The regulations at 42 C.F.R. Part 498 implementing the appeal rights of providers therefore generally contemplate that the ALJ will hold an oral hearing at which witnesses will testify and may be cross-examined (unless the parties have waived their right to a hearing in writing). The Board has frequently held that we do not conclude lightly that a facility has no right to a hearing to challenge imposition of a civil money penalty. See, e.g., Glen Rose Medical Center Nursing Home, DAB No. 1852 (2002)(reversing dismissal of hearing request); Alden Nursing Center-Morrow, DAB No. 1825, at 10 (2002), and cases cited therein.

Nevertheless, the Board and the courts have upheld procedures that allow alternative resolution of appeals without an oral hearing under certain circumstances. See, e.g., Crestview Parke Care Center v. Thompson, 373 F.3d 743, at 748-50 (upholding validity of summary judgment procedures in DAB Civil Remedies Division Procedures Manual). A requirement affording the opportunity for an oral hearing is not contravened by summary judgment if there are no genuine issues of material fact. Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997), citing Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994). Thus, in reviewing a case where an ALJ did not either obtain a written waiver or hold an oral hearing, we may nonetheless uphold the decision if the affected party either had conceded all of the material facts or proffered testimonial evidence only on facts which, even if proved, clearly would not make any substantive difference in the result. Big Bend Hospital Corp., DAB No. 1814 (2002), aff'd, Big Bend Hospital Corp. v. Thompson, No. P-02-CA-030 (W.D. Tex. Jan. 2, 2003). As the Crestview court pointed out, "it would seem strange if disputes could not be decided without an oral hearing when there are not genuine issues of material fact" and "bizarre if administrative agencies, which are in many respects modeled after the federal courts and which indeed often have more informal proceedings than federal courts, could not follow a similar rule" to the federal summary judgement rule. 373 F.3d 743, at 750, citing Fed. R. Civ. P. 56.

The Federal Rules of Civil Procedure (FRCP) are not directly applicable to administrative proceedings here, but provide helpful guidance as to how we are to apply a summary judgment rule analogous to the cited federal rule. Thelma Walley, DAB No. 1367 (1992). Further, the ALJ gave notice to the parties that he would decide motions for summary judgment according to the principles of FRCP Rule 56. Initial Prehearing Order at 4 (Dec. 9, 2002). We discern the framework set out here (and in additional detail our decisions in Madison and Lebanon) from thorough review of the federal rule and the case law developed under it, as well as from an informed consideration of the nature and purpose of the administrative proceedings to which it is being adapted.

Summary judgment is generally appropriate when the record shows that there is no genuine issue as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986). The movant must show that no genuine issues of material fact remain for trial, which it may do by showing that no evidence in the record supports a judgment for the non-movant. Id. at 323, 325. The non-movant must then "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). The non-movant will not prevail by mere denials, but must furnish evidence of a dispute concerning a material fact. Id. at 586, n.11; Celotex, 477 U.S. at 322. Ultimately, summary judgment lies "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party . . . ." Matsushita, 475 U.S. at 587.

The Board spelled out how this analysis proceeds in a Part 498 proceeding in Lebanon as follows:

Under the applicable substantive law, CMS has the initial burden of coming forward with evidence on any disputed facts showing that the provider was not in substantial compliance with Medicare participation requirements. However, the provider bears the ultimate burden of persuasion that it was in substantial compliance with those requirements. See South Valley Health Care Center, DAB No. 1691 (1999), aff'd, South Valley Health Care Center v. HCFA, 223 F.3d 1221 (10th Cir. 2000); see also, Batavia Nursing and Convalescent Center, DAB No. 1904 (2004).

Consequently, if CMS in its summary judgment motion has asserted facts that would establish a prima facie case that the facility was not in substantial compliance, the first question is whether the facility has in effect conceded those facts. If not, the next question is whether CMS has come forward with evidence to support its case on any disputed fact. If so, the facility must aver facts and proffer evidence sufficient to show that there is a genuine dispute of material fact. The facts on which the facility proffers evidence are not necessarily limited to facts that directly controvert the facts asserted by CMS since additional facts may be sufficient as a basis for determining that the facility was in substantial compliance. Ultimately, if the proffered evidence as a whole, viewed in the light most favorable to the facility, might cause a rational trier of fact to reach an outcome in favor of the facility, summary judgment on the issue of substantial compliance is not appropriate.

Lebanon at 5. The Board also pointed out that "where the duration of a per day CMP or the reasonableness of the amount of the CMP are at issue, an ALJ may not dispose of the case entirely on a summary judgment motion without considering whether there is a genuine dispute of fact material to resolving those issues." A logical consequence of the summary judgment principles set out here is that the same quantum of evidence that would decisively support a decision favorable to CMS after a hearing may well fail to suffice for summary judgment. See, e.g., Crestview, 373 F.3d at 755-56 (a dispute of material fact "makes the cancellation of an in-person hearing improper, but it does not prevent the ALJ from ruling against Crestview on remand").

The ALJ generally followed these principles in explaining the analysis he was using to determine whether summary judgment was appropriate in this case. ALJ Decision at 3. He correctly noted that Vandalia was not required to prove any facts or meet the preponderance of the evidence test to resist summary judgment. Indeed, as the ALJ further noted, the "relative probative value of evidence supporting the parties' fact allegations is irrelevant at this stage of the proceedings" Id. at 4.

In addition, the ALJ is required, in weighing the evidence at this stage, to draw all reasonable inferences supported by the evidence in favor of the non-moving party. See Madison at 5-6, and cases cited therein. Nevertheless, the ALJ need not resolve a purely legal dispute in favor of the non-movant (as opposed to drawing favorable inferences from the proffered evidence). In that sense, as the ALJ stated, a "dispute between the parties as to the correct conclusion to draw from undisputed facts is not an impediment to the entry of summary judgment." Id. at 3.

Thus, the facility must proffer evidence of facts which, if taken as true with all favorable inferences which could be reasonably drawn from that evidence, would be sufficient as a legal basis for determining that the facility was in substantial compliance. See Lebanon at 5. Such facts may not constitute a direct dispute of a fact alleged by CMS but rather may go to whether the facts alleged by CMS necessarily establish noncompliance. For example, even if a facility does not dispute the truth of a particular record entry or surveyor observation proffered by CMS as evidence of a deficiency, the facility may proffer evidence that what was recorded or observed actually met the relevant professional standards, or was appropriate in light of additional facts, such as a change in physician orders.

With this framework in mind, we next turn to evaluating the record on which the ALJ granted summary judgment to CMS.

2. A genuine issue of material fact precludes summary judgment here.

The ALJ found that Vandalia failed to comply substantially with four participation requirements. We address each in turn.

A. 42 C.F.R. § 483.13(b)(Tag F223)

CMS alleged that Vandalia had violated the right of a resident to "be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion." CMS Ex. 3, at 1, quoting 42 C.F.R. § 483.13(b). Section 483.10 of the regulations states that a long-term care facility "must protect and promote the rights of each resident" which include the freedom from abuse. "Abuse" is defined as "the wilful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish." 42 C.F.R. § 488.301. (1) CMS alleged noncompliance based on records regarding catheterization of Resident 106. Specifically, CMS relied on records showing that Resident 106, who suffered from dementia with agitation and depression, became combative when she awoke at 4 AM to find staff pulling down her pants to begin the procedure. CMS Ex. 3, at 1-2. Several nursing staff became involved: one assistant holding her hands or wrists, another holding her legs apart, and a nurse inserting the catheter to obtain a urine sample. Id. at 2. Four hours later, a nurse observed bruising on the resident's wrists and noted complaints of pain. Id. at 1; P. Ex. 2, at 8.

The ALJ concluded that CMS thus established abuse in that "the act of holding the resident's hands while she was being catheterized obviously was intended to prevent the resident from resisting," and the restraint was unreasonable because evidence in the care records "suggested that the resident could be cared for without being subjected to force." ALJ Decision at 5. The ALJ apparently was referring to the resident's care plan (initiated on May 30, 2002), which noted her tendency to resist care, to become verbally abusive, and to become socially inappropriate as fluctuating behaviors related to her dementia. CMS Ex. 7, at 19. The plan called for 14 interventions, including cuing, assisting and redirecting the resident "as she allows"; providing praise and positive verbal reinforcements; providing tactile stimulation such as hugs; and leaving the resident "in a safe, dignified manner" when she resists care and re-approaching her later. Id. at 19-20.

The ALJ concluded that these facts made out a prima facie case of abuse and stated that Vandalia did "not dispute any of the facts alleged by CMS except to deny" that the bruises resulted from the restraint (a point we discuss below). ALJ Decision at 6. We agree that CMS' evidence suffices to establish a prima facie case of noncompliance with the cited regulation. We find, however, that Vandalia alleged facts and proffered evidence that, if taken as true and if all reasonable favorable inferences therefrom are credited, would negate some of the elements needed to establish the noncompliance.

First, Vandalia proffered evidence from the staff members involved that could be interpreted to paint the interaction with the resident in a more benign light. The male nurse assistant (Eddie Rench) reported that he held the resident's hands (not her wrists) and that "when she want to let go and struggle, I let her hands go for a second untill she calmed down and then I held her hands again untill Stacey was done." P. Ex. 2, at 11 (spelling errors appear in written statement). Arguably, it could be inferred that the nurse assistant did not restrain the resident against her will, since he released her hands when she resisted holding hands. The nurse, Stacey Bennett, reported that when the resident woke up she "explained to her [the resident] what was going on & she reached for her pants so Eddie held her hands - talked to her explaining we needed to obtain the urine. [Resident] was able to move arms freely he just stopped her from pulling up her pants." P. Ex. 2 at 12. The Administrator, Jennifer Strickland, reported that she had investigated the bruising. P. Ex. 2, at 18. She stated that she herself initially suspected that the catheterization proceedings, even if not related to the bruises, might have involved inappropriate restraint. Id. She interviewed the staff involved more than once before concluding that "the resident was not unable to move about freely and that Eddie was merely distracting her by talking to her and holding her fingers to gain her attention so that the procedure would be less agitating." Id.

Viewing this evidence in the light most favorable to Vandalia could lead a rational trier of fact to find that the staff was attempting to use several of the approaches mentioned in the care plan in securing the urine sample, by providing the "tactile stimulation" of hand-holding, along with verbal explanation, distraction, and cuing. Since the male assistant reported that he continued only when the resident had "calmed down," it is not clear that his actions were inconsistent with the plan to re-approach when she was calm. Thus, a genuine dispute exists as to the nature of the interaction with resident which would be material to determining that the episode indeed constituted unreasonable confinement. (2)

Without expressly addressing it, the ALJ apparently rejected this evidence as being not credible. However, summary judgment is not the proper stage for determination of credibility or to weigh a party's evidence. Our conclusion does not imply either that the evidence proffered by Vandalia is credible or persuasive or that the favorable inferences and interpretations which we have discussed are the best or even particularly plausible ones. All that has been established is that Vandalia has asserted a genuine dispute about an issue material to finding abuse and proffered evidence from which favorable inferences could rationally be drawn.

Second, Vandalia's evidence raises material factual questions regarding the intent of the staff. The definition of abuse set out above implies an element of scienter, i.e., that the action be willful. The ALJ discussed the nature of the requisite intent and rejected Vandalia's argument (reiterated on appeal) that CMS must show an intent to cause harm, concluding instead that "an act of confinement may constitute abuse" under the regulatory definition if "it is intentional; it is unreasonable; and, it causes the victim to experience physical harm, pain or mental anguish." ALJ Decision at 7.

Prior Board decisions have mostly addressed the intent requirement in the context of one resident injuring another. In Rehab, the Board rejected a claim that a resident hitting another resident could not be considered capable of willful action and hence the facility could not be held to have failed to protest the victim from "abuse." The Board reasoned as follows:

Protecting and promoting a resident's right to be free from abuse necessarily obligates the facility to take reasonable steps to prevent abusive acts, regardless of their source. Hitting, kicking, or pushing down another person is conduct that would ordinarily be considered abuse because it involves the direct infliction of force, is likely to cause physical harm, pain, or mental anguish, and ordinarily involves a perpetrator who intends to injure the victim. See SOM, Appendix PP, Guidelines for tag F223 (noting that "physical abuse" includes "hitting, slapping, pinching and kicking").

DAB No. 1921, at 12-13. (3) The Board noted that the "term 'willful' has multiple meanings in the law - from 'malicious' to 'not accidental' - depending on the context in which it is used." Id. at 14 (citations omitted). Construing the term in the context here, we agree with the ALJ that the regulation does not require that the purpose of the actor be to inflict harm, but rather that the action have been undertaken deliberately. The ALJ's formula requires that the restraint itself be intentional. If Vandalia were able to demonstrate at a hearing that its staff acted with the intent merely of distracting the resident or using a comforting touch, that is to say, of implementing the care plan interventions, then they would not have intended restraint. In that case, a showing of mental anguish or even physical harm would not, in itself, prove abuse. See Beverly. Of course, if Vandalia fails to prove by the preponderance of the evidence that the staff did not intentionally restrain the resident (or did so only in a reasonable manner) and if the resident suffered physical harm or mental anguish, then CMS will prevail on this issue. The conflicting scenarios, however, require a hearing to resolve the material facts and ascertain the inferences best drawn from the facts.

Third, Vandalia disputed the evidence on which the ALJ relied to find the "resulting physical harm, pain or mental anguish" required by the regulation. The ALJ acknowledged, as already mentioned, that Vandalia disputed that any physical injury occurred in relation to the episode, claiming the bruises predated it. ALJ Decision at 6. (4) Therefore, the ALJ relied, as proof of harm, solely on the claim that the resident "sustained mental anguish as a result of being restrained against her will." Id. (italics in original). The ALJ inferred mental anguish from the resident's resistance to the staff's efforts to deliver care and from reports that the resident stayed awake and walked around the corridors afterward. Id. at 6-7. Vandalia proffered evidence about similar behavior in the patient's history to suggest that restlessness and combativeness were regular facets of her underlying condition. See, e.g., P. Ex. 4 at 7, 11, 12, 13, 15. The resident's agitation could thus be interpreted as related to the fluctuations in mood resulting from her dementia, rather than a reflection of distress specific to an involuntary confinement during the catheterization.

It is important to reiterate that, while the existence of a dispute of material fact sufficient to go forward to hearing on an issue precludes summary judgment, it says nothing about the relative merits of the parties's evidence on that issue. For example, CMS offered evidence that it would be against applicable nursing standards to attempt catheterization while a resident was asleep or to restrain the resident's arms in order to complete it, especially when other means were available to collect the urine sample and no special urgency was shown. CMS Ex. 21, at 5-6. The same surveyor reported, however, that Vandalia's administrator did not agree that it was inappropriate to attempt catheterization while a resident slept. Id. at 4. Given the sanctions imposed on Vandalia for its failure to comply with orders of the ALJ, it is constrained as to how much further support it can offer for its administrator's opinion. Nevertheless, evaluating the conflicting opinions is an exercise that belongs in resolving the merits of the case based on the preponderance of the evidence after the record is complete, rather than in making a summary judgment on undisputed evidence.

We conclude that there are genuine issues of material fact for determination relating to this deficiency finding. Therefore, the ALJ erred in granting summary judgment on this deficiency without permitting an evidentiary hearing.

B. 42 C.F.R. § 483.13(c)(4) (Tag F225).

Another portion of the same section of the regulations requires facilities to investigate all possible abuse and to report the results of all investigations to the administrator and to State officials within five working days of the incident. The ALJ found that facts adduced by CMS established that Vandalia "missed this [five-day] deadline" with regard to an allegation by two residents that a nurse aide threatened them with a knife. ALJ Decision at 8. That Vandalia failed to report the results of its investigation of the incident to the appropriate State officials within five working days is not disputed.

Vandalia argued, and offered evidence, that it had initiated an investigation immediately upon receiving the complaint from the residents, that the investigation was thorough, and that the delay in reporting the results was only four days. Vandalia Br. at 6-7. The evidence was in the form of written statements by Vandalia's administrator about her investigation and conclusions. P. Ex. 3, at 5, 6, 12. Vandalia asserted that the delay was caused because it was thwarted in its efforts to communicate with the accused agency nurse aide, partly because the Fourth of July weekend intervened. Vandalia contended that these factual allegations were material because they undercut any basis for finding that the facility was not in substantial compliance with the cited requirement. In addition, Vandalia proffered evidence that the accused agency employee was not permitted to return to the facility, and thus that no potential for harm existed. Id. at 3; Vandalia Br. at 6-7.

The regulations define the term "substantial compliance" to mean "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. Essentially, Vandalia's position was that a four-day delay was insubstantial and could pose no risk greater than the potential for minimal harm because the nurse aide was not allowed to work at the facility in the interim. The ALJ rejected this argument on the grounds that "the regulation establishes a hard deadline for compliance and does not permit exceptions to the rule." ALJ Decision at 9. This requirement, unlike those relating to abuse itself discussed above, does not embody any requirement of intent. Hence, it is irrelevant whether the administrator delayed because she wanted to be fair to the aide by getting the "other side" of the story or because she was making a "sincere effort" to be thorough. Vandalia Br. at 7. She could have met both those goals by continuing her efforts after providing the required notification to the State officials on time. It is simply inadequate to assert in the face of a specific reporting requirement that "[w]hat Vandalia Park did was not unreasonable." Id. at 6. Whether or not the Administrator's actions were reasonable in some sense, they were not acceptable under the plain language of the regulation.

Vandalia's assertion that the delay did not present a potential for more than minimal harm does not require a hearing. CMS did not dispute that the accused employee was not permitted in the facility during the pendency of the investigation. Hence, there is no dispute of material fact, but at most a purely legal argument about whether a potential for more than minimal harm existed even with that agency employee kept off the premises. The potential for harm in delayed reporting of an abuse investigation does not lie only in the risk of the same aide repeating the act. Unless a decision about whether to conduct an independent investigation can be made quickly, some opportunities to investigate effectively and thoroughly may be lost. Time, thus, is of the essence, even where the alleged perpetrator does not have access to the residents in the interim. In addition, part of a thorough investigation is also to address any conditions in the facility that made the abuse, if substantiated, possible. If such conditions persist, a potential risk may be presented of repetitions by other employees. The allegations at issue here involved an aide reported to have threatened two employees with a knife. Notably, the administrator concluded that there was indeed reason to believe that a violation occurred that frightened the residents and to suspect abuse. P. Ex. 2-3. Delaying the prospect of a prompt and disinterested investigation of whether and how an aide brought a weapon into the facility and frightened residents certainly presented at least a potential that the investigation itself might be compromised or even that further harm to residents might occur in the interim.

We conclude that the ALJ did not err in granting summary judgment on this deficiency since Vandalia failed to proffer evidence showing any genuine dispute of material fact.

C. 42 C.F.R. § 483.15(g) (Tag F250)

CMS alleged that Vandalia failed to provide "medically related social services" to Resident 7 to assist her "to attain or maintain the highest practicable physical, mental, and psychosocial well-being," as required by 42 C.F.R. § 483.15(g). The resident had a record of major depression, with psychosis, anxiety, and other psychiatric issues. CMS Ex. 9, at 12. It was not disputed that, on her return from a home visit on May 26, 2002, this resident reported to staff that her husband had verbally and physically abused her, pushing her down the front steps. Id. at 14-15. The resident disclosed a 35-year history of abuse in the marriage and indicated that she did not want to return home, but stressed that she wanted to continue to see her dog, which lived with her husband. Id. at 15-17. She also told the nurse that she wanted "facility intervention" because she was "afraid!" P. Ex. 1, at 12 (emphasis in original).

The record shows a number of steps taken by the facility in response to these developments. As the ALJ noted, the facility reported the allegations to the police. ALJ Decision at 10, and record citations therein. The doctor was notified and x-rays were performed, finding no fracture. P. Ex. 1, at 14. The administrator recorded on May 31, 2002, that, as a result of the incident, the facility would comply with the resident's wishes as to whether to visit home and whether to permit visits by the husband and had instructed the resident that the facility would intervene whenever necessary to assure her safety and comfort. Id. at 7-8. A social services progress note dated May 28, 2002, records again the resident's fear of her husband and desire to see her dog. Id. at 16-18. A follow-up note dated May 31, 2002, records a conversation with the resident's husband in which he was angry about the facility having made a police report but in which he agreed not to prevent the resident from seeing her dog (with which he had visited the resident in the facility on May 27, 2002). Id. at 14, 34.

The ALJ inferred that the resident's depression "almost certainly related, at least in part, to her fears of continued abuse by her husband." ALJ Decision at 10. He concluded that there "was no documentation of any intervention by Petitioner's staff to assist the resident in this regard after May 31, 2002." Id. He noted that Vandalia proffered evidence of "interventions made by its administrator prior to May 31, 2002," but concluded that it had not offered facts to "show it did anything to help the resident after that date." Id. at 10-11. The ALJ found that no further social services notes appear in the record and the resident's care plan was not updated to show any new interventions to address safety concerns or psychosocial problems arising from the abuse.

Vandalia argued, both before the ALJ and on appeal, that the facility supervised visits by the husband bringing the dog to see the resident, citing the note on the May 27th visit. Vandalia Br. at 9. Vandalia also argued that any "pain and fear" the resident suffered was adequately addressed by the facility by May 31st. Id. Hence, Vandalia contended that any risk of harm thereafter was purely speculative. Id. The ALJ rejected those arguments, concluding that Vandalia failed to "take even basic measures after May 31, 2002" to address Resident 7's "depression and its root causes" and that it was not "speculative to conclude that the resident remained depressed as of that date and thereafter" absent any showing to the contrary. ALJ Decision at 11. The ALJ therefore granted CMS summary judgment on this deficiency, finding Vandalia had an obligation to "at least attempt to do something to help the resident." Id.

The conclusions reached by the ALJ are reasonable, but they are based on inferences which are not the only possible ones to draw from the evidence in the record. Read in the light most favorable to Vandalia, it would not be unreasonable to infer that the interventions by the social service staff and nursing, such as calling the police, arranging for the husband to bring the dog to the facility for visits in lieu of home visits, and assuring the resident that the staff would intervene on request if she felt unsafe, sufficed to reassure and protect her. While it is fair to consider it "fanciful to assume that the resident's depression somehow resolved spontaneously on May 31, 2002," such an assumption is not necessarily required for Vandalia to establish that social services staff adequately responded to the resident's fear of her husband. The record contained evidence of the resident's treatment for major depression with psychosis by psychoactive medication and psychiatric followup. CMS Ex. 9, at 12.

CMS and the ALJ relied in part on the finding that the resident's care plan was not updated after May 31, 2002, to address the abuse or its aftermath. The care plan itself, however, already identified the depression as a problem and included the following among twelve ongoing interventions: provide all medications ordered, "discuss current/past/family events," "offer emotional support/reassurance as needed," and have social services "visit 1:1 . . . to allow her ample time to voice her concerns and help her find ways to cope with her feelings." Id., at 5-6. The care plan was indeed not changed after the abuse report but handwritten dates on it indicate that the original "target" for the goals in the plan was updated twice after May 31, 2002 (for July 31, 2002 and October 19, 2002). Id. Her short-term goals were to be able to respond verbally to her name and to make safe decisions with cuing. It would be possible to reasonably infer from this evidence that eliminating the depression may not have been a realistic goal and that the ongoing interventions were appropriately addressing her emotional needs without revision in light of the new information about the history of abuse.

We emphasize again that finding it possible to draw reasonable inferences in favor of Vandalia is not the equivalent of concluding that Vandalia proved its case on these points. In weighing the relative strength of the evidence, the ALJ may well conclude that Vandalia failed to establish that the resident's needs were fully met by the pre-May 31st interventions or that the care plan approaches were actually implemented in practice after that date (especially given the absence of nursing or social services notes to document such implementation). We conclude only that Vandalia has proffered sufficient evidence (5) on disputed material issues to establish that it should not forfeit the statutory and regulatory opportunity for a hearing on the record.

D. 42 C.F.R. § 483.25 (Tag F309)

CMS cited the facility for a quality of care deficiency under the overarching requirement that a facility must provide each resident with "the necessary care and services to attain and 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; CMS Ex. 3, at 6-7. The finding here arose from the surveyors' review of an abuse investigation report prepared by the facility in response to Resident 69's allegation that a nurse had punched her. CMS Exs. 10, at 1, and 22, at 4-5. Resident 69 had diabetes requiring testing of her blood sugar, but had a history of depression and disruptive behavior problems. CMS Ex. 10, at 5; P. Ex. 5, at 1, 8. The accused nurse wrote a statement that the resident had displayed hostility when the nurse attempted to perform a finger stick to test for blood sugar. CMS Ex. 10, at 7; see also P. Ex. 5, at 9 (nurse's note). The nurse then reported that the resident "punched this nurse several times and almost knocked glasses off face" and that "[t]his nurse took the punches and proceeded to stick res[ident's] finger . . ." CMS Ex. 10, at 7. The nurse's statement also suggested that the blood sugar reading was important because the resident's diabetes was "brittle," and asserted that the resident's claim of being struck was false. Id. The facility administrator concluded that no abuse occurred. Id. at 2. CMS did not disagree with that conclusion but argued that the nurse's statement showed a lack of compliance with the resident's plan of care. The plan of care instructed staff that if the resident was "resistive to care leave in safe position and re-approach until task is complete." CMS Ex. 10, at 11. The ALJ concluded that the evidence established that the nurse did not comply with those instructions when the resident resisted the finger stick, thus failing to provide care in accordance with the plan of care as required by the regulation. ALJ Decision at 12.

Vandalia asserted that it was possible to interpret the nurse's statement as evidencing a sequence of events in which the resident first punched the nurse and the nurse then performed the finger stick, which would not exclude a period of time intervening rather than the nurse taking the finger stick "while concurrently being punched." Vandalia Br. at 10-11. The care plan instructions did not simply require that the care occur subsequent to the resistance, but rather that a period of time intervene to allow the resident to calm down and that the staff make multiple attempts to deliver care. No amount of parsing of the nurse's brief statement can support a reading that the resident was left alone to calm down and then re-approached for another attempt. Furthermore, the nursing notes, which contain the same statement that the nurse "took the punches + proceeded to stick res[ident's] finger, record the entire episode as occurring at 6:40 PM. Had the nurse left the resident for a time and made a second attempt, presumably the second attempt would have been recorded at a later time.

Elsewhere we have made clear that all reasonable inferences must be drawn in Vandalia's favor in the summary judgment process. Reasonable inferences must be something more than pure speculation or retrospective invention, however. Vandalia stated that the nurse could appropriately be asked the sequence of events, but did not offer any statement from the nurse or list the nurse as a witness, nor offer any other witness as to what occurred. Vandalia Br. at 11. Vandalia complained that it was unable to make a further evidentiary showing that might have supported the inferences it suggested because the ALJ's sanction precluded it from offering additional facts. Id.; see ALJ Decision at 2. Vandalia did not appeal the sanction order in its request for review, however. Reasonable inferences can be drawn only from evidence that has been timely proffered. Additional evidence that might have been proffered had Vandalia complied with the ALJ's orders, cannot form the basis of a genuine dispute.

Nor do the other arguments raised by Vandalia relating to this deficiency identify a genuine dispute of material fact. Vandalia argued that the facility was faced with a Hobson's choice between either "supposedly failing to comply with R[esident] 69's care plan by permitting the resident to assault staff while purportedly giving her a finger stick; or . . . failing to comply with R[esident] 69's care plan by permitting the resident to go into diabetic complications because it did not monitor her blood sugar as required." Vandalia Br. at 11. Vandalia identified no evidence from which it would be reasonable to infer that the only alternative to proceeding with the finger stick without providing a cooling down period and re-approaching was to let the resident suffer diabetic complications. In fact, Vandalia's administrator pointed out that the blood sugar reading indicated no need for insulin at the time, so it seems unlikely that complications were so imminent that the finger stick could not be briefly delayed. CMS Ex. 6, at 3.

Vandalia also strongly objected to an allegation in the statement of deficiencies that a Vandalia administrative staff person "revealed" that the nurse involved "was a temporary staff person and was not expected to know the specific resident needs." CMS Ex. 3, at 7. Vandalia's administrator asserted that the relevant conversation was "witnessed by 'corporate' staff" and that no statement was ever made that the nurse was "not expected to know the resident's needs." CMS Ex. 6, at 4. This allegation was not necessary to the finding that the nurse did not follow the resident's plan of care and was not relied on by the ALJ. Hence, the dispute about what the facility's expectations of the nurse were is not material to resolving this deficiency.

We conclude that the ALJ did not err in granting summary judgment on this deficiency since Vandalia failed to proffer evidence of any genuine dispute of material fact.

3. Instructions on remand

The careful parsing of factual allegations and evidence as to each deficiency in which we have had to engage in this decision is necessitated by the fundamental principle that short-circuiting the right to a hearing is disfavored. This principle is the common thread in the summary judgment law discussed above. Summary judgment can deprive the decision-maker of a fully-developed record and the opportunity to observe and question witnesses, as well as presenting the risk of impairing the rights of an adversely affected party. Where the question of the existence of a genuine dispute of material fact is close, a decision-maker must err therefore on the side of granting a hearing. We therefore must remand this matter to the ALJ for further proceedings, even though some deficiency findings are already finally resolved unfavorably to Vandalia.

Based on the analysis set out above, we modify the ALJ's first two FFCLs and dispose of the other two FFCLs, as shown below:

FFCL 1. Summary disposition is appropriate, as to 42 C.F.R. § 483.13(c) and 483.25.

FFCL 2. Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.13(c) and 483.25.

FFCL 3. Affirmed.

FFCL 4. Vacated.

Since we have upheld two of the four deficiency findings, Vandalia cannot now establish that it was in substantial compliance with the participation requirements. Moreover, the period of noncompliance was not challenged on appeal, apart from the general claim that Vandalia was in substantial compliance throughout, and is not affected by the deficiencies for which we reversed the summary judgment. The consequence is that Vandalia may not assert on remand that CMS lacked authority to impose a remedy on it or seek a CMP amount of less than $50 per day.

On the other hand, the ALJ must determine anew whether the $250 per day CMP is reasonable. In discussing this question, the ALJ asserted that he would have upheld the full amount based solely on his finding that Vandalia failed to protect Resident 106 from abuse, even were the "three other less serious deficiencies" not present. ALJ Decision at 15. This assertion implies that a $250 per day CMP might not be reasonable based on only two "less serious" deficiencies as to which we have affirmed the summary judgment.

On remand, the ALJ should re-schedule a hearing in this matter. The scope of such a hearing would be limited to:

  • Only those findings as to which summary judgment has been reversed, and


  • Only the witnesses and evidence proffered by Vandalia in its August 12, 2003 pre-hearing exchange, based on the sanction imposed by the ALJ for Vandalia's failure to comply with his orders.

Conclusion

Based on the analysis explained above, the ALJ decision is reversed, the FFCLs are modified as set out above, and the matter is remanded for further proceedings consistent with this decision.

JUDGE
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Cecilia Sparks Ford

Donald F. Garrett

Judith A. Ballard
Presiding Board Member

FOOTNOTES
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1. Because Part 488 is related to Part 483 and because "abuse" is not separately defined for purposes of Part 483, the Board has upheld reference to this definition in cases involving alleged noncompliance with section 483.13(b). Western Care Management Corporation, d/b/a Rehab Specialities Inn, DAB No. 1921 (2004) (Rehab); Beverly Health and Rehabilitation Center - Williamsburg, DAB No. 1748 (2000) (Beverly).

2. The parties do not dispute that restraint is a form of confinement.

3. By contrast, in Beverly, DAB No. 1748, the Board found that abuse did not exist when one resident unplugged the respirator of another, where the victim was distressed but the resident was shown to be unaware that her act affected another person.

4. Vandalia also proffered some evidence that the resident was subject to bruising easily for medical reasons. CMS Ex. 6, at 1-2.

5. The evidence, as noted, includes statements by Administrator Strickland who was proffered as a witness by Vandalia. See, e.g., P. Ex. 1, at 7-8.

CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES