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


SUBJECT: Residence at Kensington Place,

Petitioner,

DATE: February 9, 2005

             - v -
 

Centers for Medicare & Medicaid Services

 

Docket No. A-04-114
Civil Remedies No. C-01-742
Decision No. 1963
DECISION
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REMAND OF
ADMINISTRATIVE LAW JUDGE D
ECISION

On April 29, 2004, Residence at Kensington Place (Kensington), a skilled nursing facility, appealed a March 22, 2004 decision by Administrative Law Judge (ALJ) Carolyn Cozad Hughes. Residence at Kensington Place, DAB CR1159 (2004) (ALJ Decision). In her decision, the ALJ granted a motion for summary judgment filed by the Centers for Medicare & Medicaid Services (CMS), finding that Kensington was not, as of March 30, 2001, in substantial compliance with the regulation that requires skilled nursing facilities to provide residents with adequate supervision and assistance devices to prevent accidents. The ALJ also sustained the $350 per day civil money penalty (CMP) imposed by CMS for the period of noncompliance.

For the reasons discussed below, we conclude that this case presents genuine disputes of material fact about the foreseeability of certain accidents, the effectiveness of accident prevention measures implemented by Kensington, and the practicability and probable efficacy of the additional measures suggested by CMS's witnesses, the resolution of which is necessary to determine whether the facility met the regulatory requirement for "adequate supervision and assistance devices to prevent accidents." Accordingly, we vacate the ALJ Decision and remand the case to the ALJ for an evidentiary hearing to address the factual disputes raised by the parties.

Case Background

The Ohio Department of Health (ODH) completed a standard survey of Kensington on March 30, 2001, citing deficiencies under several tags. CMS Exs. 1 and 2. Under tag F324, ODH reported that Kensington was not in substantial compliance with 42 C.F.R. § 483.25(h)(2), which requires a facility to "ensure" that each resident receives "adequate supervision and assistance devices to prevent accidents." CMS Ex. 2, at 17. The deficiency finding under tag F324 was based on the survey agency's findings concerning a single resident, referred to as Resident 17.

Before the ALJ, the parties did not raise any dispute about the following facts described in the Statement of Deficiencies (SOD) resulting from the survey. Resident 17 was a 54 year old retarded man who was "combative" and at risk for falls. CMS Ex. 2, at 17. Between January 19 and January 29, 2001, Resident 17 made attempts, some successful, to get out of his bed and mobile recliner without assistance or supervision, despite measures to prevent him from doing so. Id. at 17-18; Booth Decl. ¶¶ 3-5. On at least two occasions during this period, the nursing staff found him sitting or lying on the floor next to or near his bed or mobile recliner chair. CMS Ex. 2, at 17-18; CMS Ex. 23, at 53. On February 1, Resident 17 was found sitting on the floor beside his bed. CMS Ex. 2, at 18; Booth Decl. ¶ 5. That same day he was hospitalized and found to have a left hip fracture. CMS Ex. 2, at 18. On February 21, 2001, he again was found on the floor, lying on his right side, next to his recliner. Id. at 19. He was hospitalized the next day and found to have a fractured right hip. Id.; CMS Ex. 23, at 44, 68-69.

Based on these facts and other information, the survey agency concluded that Kensington was out of compliance with 42 C.F.R. § 483.25(h)(2) because it had failed to "adequately supervise" a resident "who had known behaviors of being restless and aggravated while in a recliner and bed[.]" CMS Ex. 2, at 19.

In an April 25, 2001 letter, CMS informed Kensington that it was not in substantial compliance, as the March survey had found, and that its most serious deficiencies included the deficiency cited under tag F324. CMS Ex. 1. The April 25 notice letter also informed Kensington that CMS had accepted ODH's recommendation to impose various enforcement remedies, including a $450 per day CMP effective March 30, 2001, and a denial of payment for new admissions. Id.

On April 24, 2001, ODH conducted a revisit survey and determined that Kensington had come back into substantial compliance with all participation requirements as of that date. CMS Ex. 5, at 1. Based on the outcome of the revisit survey and informal dispute resolution, CMS rescinded the DPNA, reduced the CMP from $450 to $350 per day, (1) and informed Kensington that the total CMP due was $8,750, which is equal to $350 per day for the 25 days beginning on March 30, 2001 and continuing through April 23, 2003. Id. at 1-2.

The ALJ Proceedings

Kensington appealed CMS's imposition of the CMP by requesting an ALJ hearing. Following pre-hearing exchanges of information and documents, CMS filed a motion for summary judgment, requesting that the ALJ sustain the CMP based solely on the facility's alleged failure to provide Resident 17 with adequate supervision and assistance devices, as required by 42 C.F.R. § 483.25(h)(2). CMS's motion was supported primarily by the SOD (CMS Ex. 1), resident medical records (CMS Exs. 23), and the declarations of two ODH surveyors -- Laura McClure (2) and Debra Bricker, R.N. These witnesses stated or implied that the February 1 and February 21 incidents, in which Resident 17 apparently suffered hip fractures, were foreseeable and could have been prevented had the facility taken specific protective or precautionary measures in addition to the ones that the facility had already taken.

The statements by McClure and Bricker, whose opinions were based on a review of medical records, address what they saw to be two distinct accident risks. The first was Resident 17's ability and propensity to crawl or climb out of his bed without the supervision or assistance of the nursing staff (something he apparently did on February 1, 2001), despite measures intended to prevent him from doing so. According to Surveyor McClure, Resident 17 had made 11 attempts, some successful, to climb or crawl out of his bed between January 19 and January 29, 2001. McClure Decl. ¶ 9. Surveyor McClure asserted that Kensington should have realized during that ten-day period that Resident 17 "would continue to climb out of bed, fall to the floor and suffer serious injury," and that the "assistive devices" being used during that period -- including bed siderails, safety alarms, call light, and fall mat next to the bed -- "were not effective in protecting [Resident 17] from falling out of bed[.]" McClure Decl. ¶¶ 9-10. "Because [Resident 17] had established a pattern of climbing out of bed," said Nurse Bricker, "the facility should have foreseen that he would continue to climb out of bed," and therefore Kensington "had a responsibility to take reasonable steps to prevent him from climbing out of bed and from suffering serious injury." Bricker Decl. ¶ 6. McClure and Bricker indicated that the additional steps the facility could have taken to prevent Resident 17 from climbing or falling out of bed included giving him a scoop mattress with wedges, discontinuing the use of siderails, moving him to a low bed, "consistently" using pressure sensitive and "tab" alarms, and using a motion detector at night to alert the staff when he became active. Id.; McClure Decl. ¶ 10.

The second risk described by CMS's witnesses stemmed from Resident 17's use of his mobile recliner. McClure Decl. ¶ 13. McClure and Bricker indicated that the February 21 hip fracture -- which Resident 17 apparently sustained after getting up out of his mobile recliner -- was foreseeable because he had "slid out of" or "fallen" from the recliner on February 12 and February 19. Id.; Bricker Decl. ¶ 7. Despite these incidents, said Nurse Bricker, Kensington "failed to consider or implement any additional devices to protect" Resident 17 until after the incident on February 21. Bricker Decl. ¶ 7. According to Bricker and McClure, the facility could have mitigated the risk of Resident 17 falling from or sliding out of his mobile recliner by giving him a specialized wheelchair or by placing a pommel cushion (with dycem beneath the cushion) on the seat of the recliner. Id.; McClure Decl. ¶ 17. Surveyor McClure stated that these additional measures should have been implemented immediately after Resident 17 was found on the floor next to his recliner on February 12. McClure Decl. ¶ 17.

Relying on these statements, CMS contended in its summary judgment motion that Kensington was not in substantial compliance with 42 C.F.R. § 483.25(h)(2) "because it failed to try to implement new, effective methods to protect [Resident 17] when it became apparent that the interventions that it chose for him were not effective in preventing repeated falls." CMS's Memorandum in Support of its Motion for Summary Affirmance at 9.

In opposing CMS's motion, Kensington relied principally on Resident 17's medical records and on the declarations of two persons: Mindy Booth, R.N., the nurse at Kensington in charge of fall prevention; and Thomas J. Schindler, R.N., a nursing home consultant with experience as a director of nursing in long term care facilities. Kensington's witnesses pointed out that, shortly after Resident 17's admission to the facility on January 19, 2001, the nursing staff implemented numerous measures (including installing movement or safety alarms and the placement of a shock-absorbing mat next to the bed) to deal with the accident risks described by CMS's witnesses. Booth and Schindler also asserted that the measures taken by the facility were adequate under the circumstances to prevent accidents. Regarding Resident 17's attempts to crawl out of bed, Nurse Schindler asserted that Resident 17 had never fallen between January 19 and January 29, 2001, and that although he had attempted to climb out of bed on a number of occasions, he was largely unsuccessful due to the nursing staff's interventions. (3) Nurse Schindler concluded that "it was not foreseeable based on the resident's history from [January 19 to January 29] that [Resident 17] would fall to the floor or suffer serious injury." Schindler Decl. ¶ 5. Nurse Schindler also asserted that the nursing staff took effective precautions, such as providing medication and one-on-one supervision when Resident 17 was found to be agitated or unable to sleep, and that a scoop mattress with wedges and a motion detector (measures suggested by CMS's witnesses) "would [have done] nothing helpful to enable the facility to supervise this resident or provide assistance that was substantively any better than what the facility provided already." (4) Id. ¶¶ 4(k), 5. Finally, Nurse Schindler suggested that Resident 17's attempts to crawl out of bed did not increase or create a risk of accidental harm, stating: "It also seems that this resident desiring to sleep on the floor and/or putting himself on the floor was a manner in which he sought attention and was a behavioral issue and something he did, without incident or injury, before he was ever admitted to the facility." Id. ¶ 4(c).

Regarding the use of the mobile recliner, Nurse Schindler asserted that, as of February 19, "it was not foreseeable based on [Resident 17's] history, conditions, and interventions" that he would fall from or slide out of his wheelchair or gerichair. Schindler Decl. ¶¶ 8-10. In addition, Nurse Schindler asserted that the interventions taken by the facility after the incidents on February 12 and 19 were "proper, professionally appropriate given his conditions, and complied with all pertinent professional standards of care." Id. Nurse Schindler also stated that an opinion about the "timing and propriety" of a specialized wheelchair or pommel cushion "can only be addressed by a licensed and qualified occupational therapist," and that a specialized wheelchair (in particular, a powered wheelchair with postural support) "would entail the use of similar types of restraint mechanisms that [Resident 17] had already defeated (e.g. seat, shoulder and waist belts)." Id. ¶ 11.

In response to CMS's summary judgment motion, Kensington asserted that its witness declarations, together with the medical records submitted, created "numerous factual issues" warranting a hearing. Petitioner's Opposition to Respondent's Motion for Summary Affirmance at 7.

The ALJ Decision

In her decision, the ALJ presented, in chronological fashion, a detailed and lengthy description of information contained in the medical records submitted by the parties concerning Kensington's care of Resident 17 between January and March 2001. In part because the parties relied on the same set of medical records and did not dispute the accuracy of the information they contain, the ALJ found that there were material facts in dispute concerning Resident 17's physical and mental condition, his reported behavior during the period at issue, the nature of the measures taken by the facility to address his behavior and prevent accidents, the circumstances leading to the injuries he suffered on February 1 and 21, and the nursing staff's responses to these and other incidents. ALJ Decision at 9-21. To the extent that facts were in dispute, the ALJ found them to be immaterial. See, e.g., ALJ Decision at 16 (noting a dispute about whether a bed alarm was in place on February 3 but finding that this fact, even if true, did not help Kensington). The ALJ further found that the only critical disputes in the case were about the conclusions to be drawn from the undisputed material facts, rendering the case appropriate for summary judgment. Id. at 6.

Based on what she determined to be the undisputed material facts, the ALJ found that the accidents that occurred on February 1 and February 21 were foreseeable, stating that --

from early in R17's stay, and certainly from before his February 1 hip fracture, the facility was on notice that R17 could - and likely would - crawl out of his bed and could - and likely would - crawl out of his mobile recliner. That such behavior will inevitably result in accidents and injury seems obvious, and the facility was therefore obligated to take reasonable steps to ensure that he received the supervision and assistance devices that [he] needed to protect him from accidents.

Id. at 21-22 (citations omitted). The ALJ also found that the record supported CMS's view that the measures implemented by the facility to prevent accidents were ineffective, that their ineffectiveness should have been apparent to the facility within the first ten days of Resident 17's stay, and that, despite the ineffectiveness of its accident prevention measures, the facility failed to adopt new, more effective measures until after he sustained injuries on February 1 and February 21. Id. at 8-9. The ALJ acknowledged that the facility had implemented some preventive measures but found that the "uncontroverted evidence establishe[d] that the level of supervision and assistance devices the facility provided was unreasonably insufficient to mitigate the foreseeable risk." Id. at 21-22. The ALJ concluded that summary judgment was appropriate on the issue of whether the facility was in substantial compliance with 42 C.F.R. § 483.25(h)(2) because CMS had made a prima facie showing of noncompliance and because the facility had "proffer[ed] no set of facts which, if accepted, would establish its substantial compliance[.]" Id. at 22.

Finally, concerning the issue of whether the $350 per CMP was reasonable, the ALJ found that this issue was not properly before her because it had not been raised in Kensington's pre-hearing submissions. ALJ Decision at 22-24. Based on all these findings, the ALJ sustained CMS's imposition of a $350 per day CMP for the period of noncompliance.

Standard of Review

Whether summary judgment is appropriate is a legal issue that we address de novo. Lebanon Nursing and Rehabilitation Center, DAB No. 1918 (2004).

Discussion

Kensington raises two issues in its request for review. The first is whether summary judgment was proper. The second issue concerns the ALJ's refusal to evaluate whether the amount of the CMP was reasonable. We address these issues in turn.

Issue 1: There are genuine issues of material fact precluding summary judgment in this case.

Kensington contends that summary judgment was improper because there are genuine issues of fact about (among other things) whether the incidents on February 1 and 21 were foreseeable and whether the nursing staff took adequate steps to prevent those incidents (or others like them). Request for Review (RR) at 2, 14-15, 21-23. Kensington also complains that the ALJ did not, as required on a motion for summary judgment, view the record in the light most favorable to the non-moving party because she unreasonably overlooked, ignored, or failed to assign weight to certain facts that tend to support a judgment in favor of the facility. Id. at 9, 10, 18, 24. In addition, says Kensington, the ALJ failed to identify the additional preventive measures that the facility could and should have taken under the circumstances. Id. at 18. In fact, Kensington suggests, the record supports a finding that there was no additional practicable measure that the nursing staff could have taken to prevent the accidents that occurred on February 1 and 21 without unacceptably impinging on Resident 17's dignity and well-being. Id. at 22, 24.

CMS responds that summary judgment was appropriate because Kensington failed to create a genuine dispute about any material fact, and because the undisputed facts established that Resident 17 did not receive adequate supervision and assistance devices. Response Brief at 3-17.

Summary judgment may be entered when the record shows that there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. (5) Lebanon. Whether there are genuine issues of material fact precluding summary judgment must be determined in light of the legal requirements governing the underlying dispute.

The Board has articulated the requirements of 42 C.F.R. § 483.25(h)(2), the regulation governing this dispute, in numerous decisions. Northeastern Ohio Alzheimer's Research Center, DAB No. 1935 (2004). The Board has held that section 483.25(h)(2) cannot properly be read to impose strict liability on facilities for accidents that occur. Instead, the Board has found that the regulatory requirement of "adequate supervision and assistance devices to prevent accidents" obligates the facility to provide supervision and assistance devices designed to meet the resident's assessed needs and to mitigate foreseeable risks of harm from accidents. (6) Id.; see also Tri-County Extended Care Center, DAB No. 1936 (2004); Odd Fellow and Rebekah Health Care Facility, DAB No. 1839 (2002). In addition, the Board has indicated that a facility must provide supervision and assistance devices that reduce known or foreseeable accident risks to the highest practicable degree, consistent with accepted standards of nursing practice. Woodstock Care Center, DAB No. 1726, at 21, 25, 40 (2000), aff'd, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003); Florence Park Care Center, DAB No. 1931 (2004). Thus, if a facility implements accident prevention measures for a resident but has reason to know that those measures are substantially ineffective in reducing the risk of accidents, it must act to determine the reasons for the ineffectiveness and to consider -- and, if practicable, implement -- more effective measures. Woodstock at 28 (affirming a CMP based on evidence that a facility failed to change its practices after it became clear that those practices were ineffective).

As indicated, based on her examination of the medical records and declarations, the ALJ determined that the facts concerning Resident 17's physical and mental condition, the nature of the facility's interventions, the various incidents in which Resident 17 reportedly left (or attempted to leave) his bed or recliner chair unsupervised, and the facility's response to those incidents were largely undisputed. The ALJ further determined that it was appropriate, on a motion for summary judgment, to draw conclusions from these undisputed facts regarding the foreseeability of particular accidents (namely, the ones on February 1 and 21), the effectiveness of Kensington's accident prevention measures, and the need for additional measures to prevent accidents. However, these broader issues (of foreseeability, effectiveness, etc.) are essentially factual: they typically require an intensive evaluation of a resident's clinical circumstances and the extent to which a facility's interventions were adequate to meet the resident's particular needs. Consequently, they cannot be resolved on a motion for summary judgment if they are in genuine dispute -- that is, if a rational fact-finder could, based on the proffered evidence (and reasonable inferences from that evidence), resolve them in favor of the non-moving party. (7) Madison Health Care, Inc., DAB No. 1927, at 14 ("where the record evidence is susceptible of a rational interpretation which would preclude summary judgment against the non-movant party, the case must go forward for a thorough evaluation of what the most reasonable inferences and the preferable interpretations are based on all credible evidence in the record after a full hearing").

We find that these broader factual issues -- namely, the foreseeability of certain accidents, the effectiveness of accident prevention measures implemented by Kensington, and practicability and probable efficacy of the additional measures suggested by CMS's witnesses -- are in genuine dispute in this case. On one hand, CMS proffered statements by two surveyors that the incidents on February 1 and February 21 were foreseeable because the interventions in place prior to those dates were demonstrably ineffective. These witnesses further asserted that Kensington could and should have taken specific actions to prevent them but did not do so. On the other hand, the facility's declarants, Booth and Schindler, offered expert opinion that, notwithstanding the fact that Resident 17 was injured on February 1 and February 21, the nursing staff had taken all reasonable and practicable steps to protect him and to reduce the risk of accidents stemming from his behavior. In addition, Nurse Schindler, who claimed to have over 20 years of nursing experience, asserted that the incidents on February 1 and February 21 were unforeseeable and implied that the facility did not have reason to know that its interventions were ineffective because they had, in most instances, prevented accidentals. In addition, Nurse Schindler asserted that the additional measures suggested by CMS would have been no more effective in preventing accidents than the measures Kensington had already implemented. He asserted, for example, that a scoop mattress (with wedges) would have done nothing to prevent an accident that might occur while Resident 17 was attempting to get out of bed because such a mattress prevents injury to persons who "roll out of bed," which Resident 17 had not done. Schindler Decl. ¶ 5.

Viewing the record in the light most favorable to Kensington, we cannot say that its witnesses' opinions lacked foundation or were otherwise insufficient to create a genuine factual dispute. As indicated, CMS's central assertion is that, at some point prior to the incidents on February 1 and February 21, the nursing staff should have been aware that its accident prevention measures for Resident 17 were ineffective and implemented specific, additional measures to prevent accidents. Kensington, however, presented some evidence that it did not stand by idly when it became aware of Resident 17's seemingly problematic behavior, and that its nursing staff periodically reevaluated the effectiveness of its accident prevention measures and made what its declarants believed were sufficient adjustments. (8) For example, on January 22, after Resident 17 was found on the floor next to his bed, the nursing staff placed a shock-absorbing mat next to the bed, a measure designed to prevent injury from a fall out of or near the bed. Booth Decl. ¶ 3. CMS did not offer, in rebuttal, an opinion about whether or why this measure was inadequate to address the accident risk associated with Resident 17's attempts to crawl out of bed. Regarding the mobile recliner, the nursing staff responded to the incidents in which Resident 17 reportedly got up or out of the recliner by giving him verbal reminders not to stand up, providing "judgment training," encouraging him to engage in more activities (so that he could be more closely supervised), and placing a pressure sensitive alarm on the recliner. CMS Ex. 23, at 62, 64-65; Booth Decl. ¶ 7. Again, CMS's declarants did not specifically contradict Nurse Schindler's assertion that these measures were "proper, professionally appropriate for [Resident 17] given his conditions, and complied with all pertinent professional standards of care." Schindler Decl. ¶ 10. Moreover, Nurse Schindler's assertions regarding the additional prevention measures suggested by CMS's declarants are not facially implausible and were not specifically contradicted by CMS's declarants.

Resident 17's plan of care seems to indicate that, during his first 10 weeks at the facility (January 19 to March 30, 2001), Kensington implemented or considered numerous measures to reduce the risk of accidents. (9) To be sure, these measures did not eliminate all accidents. However, section 483.25(h)(2) does not require perfect results or outcomes, (10) only that the facility ensure that a resident receives supervision and assistance devices designed to meet his needs and to prevent accidents to the highest practicable degree. Woodstock Care Center, DAB No. 1726, at 28. In debating the need for specific additional prevention measures, the parties' declarations show a difference of professional opinion about whether Kensington took the steps necessary to reduce the risk of accident to the highest practicable degree. We note, in this regard, that the nursing records leave an impression that Resident 17 was a behaviorally unpredictable resident who, despite his impairments, was physically capable of overcoming or thwarting measures designed to protect him from harm. These circumstances make it difficult, at best, to discern or describe the nature of the accident risks posed and to evaluate the necessity and likely efficacy of the additional prevention measures specified by CMS. Because of the difficult challenges apparently posed by Resident 17, the opinions of Kensington's witnesses that the nursing staff had implemented all reasonable measures to protect him cannot lightly be set aside without a better understanding of the accident risks involved, the manner and consistency with which Kensington implemented its prevention measures, and what those measures were expected to achieve.

We conclude that Kensington's evidence is sufficient to raise genuine disputes concerning factual issues whose resolution is material to the ultimate determination of whether Kensington provided "adequate supervision and assistance devices to prevent accidents." Consequently, we reverse the grant of summary judgment. Of course, nothing we have said here should be construed as expressing an opinion about the relative merits or persuasiveness of either party's evidence or arguments. We find only that there are genuine factual disputes warranting an evidentiary hearing.

Issue 2: The ALJ properly found that Kensington had not raised an issue concerning the reasonableness of the CMP.

Kensington contends that the ALJ erred in finding that it had failed to raise an issue concerning the reasonableness of the CMP. RR at 25-29. Kensington asserts, in particular, that the following passage from its request for hearing was sufficient to raise the issue:

Kensington . . . disputes the remedies selected, amounts and the imposition of remedies by [CMS] resulting from a survey conducted on March 30, 2001. The imposed remedies include the denial of payment for Medicare and Medicaid Admissions effective June 30, 2001. A Civil Money Penalty in an amount and effective dates yet to be determined.

Request for Hearing at 1 (emphasis added).

We agree with the ALJ that this statement is not sufficient. The statement fails to satisfy the regulatory requirements governing the contents of a request for hearing. These regulations, at 42 C.F.R. § 498.40(b), require an appellant to identify the specific issues it intends to pursue in the appeal and to "[s]pecify the basis for contending that findings and conclusions are incorrect." 42 C.F.R. § 498.40(b). The statement in Kensington's hearing request fails to meet these requirements because it is unspecific and gives no hint as the basis for Kensington's objection to the CMP amount.

Kensington had an additional opportunity (and an obligation under the ALJ's pre-hearing orders) to contest the amount of the CMP with more clarity. On September 7, 2001, the ALJ issued an order directing Kensington to submit a brief setting forth "all legal and factual issues," as well as "all evidentiary documentation upon which Petitioner intends to rely." The order directed CMS to file its issue brief and evidence two months later. In addition, the September 7 order warned the parties that failing to raise an issue in their pre-hearing briefs would preclude them from raising it later "absent a showing of compelling good cause." The ALJ found -- and we agree -- Kensington's pre-hearing brief failed to raise any issue concerning the amount of the CMP.

Kensington suggests that its silence should be excused because it was unfairly required to submit a pre-hearing brief before CMS filed its pre-hearing brief. RR at 25. We find no merit to this contention because Kensington does not explain why or how the order of briefing prevented it from raising the issue. Moreover, the ALJ's September 7, 2001 order gave Kensington the opportunity to file a reply brief to CMS's pre-hearing brief. Kensington could have specified a basis for contesting the CMP amount in its reply brief but did not do so, as the ALJ correctly found.

Kensington further suggests that the ALJ is required to determine independently whether the amount of the CMP imposed by CMS is reasonable in light of the regulatory factors in 42 C.F.R. § 488.438(f), even when the facility fails to contest the amount as unreasonable. RR at 26-28. We do not agree that the ALJ is required to do this in all circumstances. In cases in which the ALJ has not overturned or modified the noncompliance and level-of-seriousness determinations identified by CMS as the bases for the CMP, we have held that the amount of a CMP should be considered presumptively reasonable unless the facility contends that the regulatory factors do not support it. Coquina Center, DAB No. 1860, at 32 (2002) ("[T]here is a presumption that CMS has considered the regulatory factors [in section 488.438(f)] in setting the amount of the CMP and that those factors support the CMP amount imposed by CMS. Unless a facility contends that a particular regulatory factor does not support that CMP amount, the ALJ must sustain it").

For the reasons above, we affirm the ALJ's determination that Kensington did not timely raise an issue concerning the reasonableness of the CMP. Consequently, the ALJ may decline to address that issue on remand.

Conclusion

For the reasons above, we vacate the ALJ Decision and remand the case to the ALJ for further proceedings.

JUDGE
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Daniel Aibel

Judith A. Ballard

Donald F. Garrett
Presiding Board Member

FOOTNOTES
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1. As a result of informal dispute resolution, a determination was made to delete certain deficiency findings under tag F157. See CMS Ex. 4, at 2.

2. Surveyor McClure is not a registered nurse. She stated that she has had approximately eight years of experience as a surveyor as well as training regarding nursing home safety issues. McClure Decl. ¶ 1.

3. Nurse Schindler noted that Resident 17 "did not attempt to get out of his bed everyday, and there was no known trigger in particular that the facility could look at to predict when [Resident 17] might unexpectedly attempt to get our [sic] of bed." Schindler Decl. ¶ 5.

4. Nurse Schindler stated that a scoop mattress prevents injury only to persons who "roll out of bed" and that Resident 17 did not roll out of bed. Schindler Decl. ¶ 5.

5. In deciding a summary judgment motion, a tribunal may not make credibility determinations or weigh conflicting evidence to determine the truth of a matter, but must instead view the entire record in the light most favorable to the non-moving party, drawing all reasonable inferences from the evidence in that party's favor. Madison Health Care, Inc., DAB No. 1927 (2004).

6. A facility is not liable for "unavoidable negative outcomes or untoward events that could not reasonably have been foreseen and forestalled." Tri-County Extended Care Center, DAB No. 1936, at 7 (2004).

7. We distinguish this case from the types of cases we have said are generally appropriate for summary judgment. Such cases include those in which it is undisputed that the facility failed to provide necessary supervision and assistance devices called for in the resident's plan of care, failed completely to identify a fall risk about which it should have known, or failed to adopt or implement a plan to address an identified risk. Lebanon at 9-10.

8. The facility's "post fall assessment" reports seem to indicate that when Resident 17 fell, or was thought to have fallen, the nursing staff investigated the incident to determine its cause, considered whether additional preventive measures were necessary, and, in some instances, took steps to increase the level of supervision. See CMS Ex. 23, at 53-75.

9. The plan of care and nursing notes mention the following measures (among others): use (or non-use) of siderails; use of a "restraint free" or pressure sensitive alarms on the bed, wheelchair, and mobile recliner; placement of a call light near the bed; installation of a lap buddy or lap belt on the wheelchair or mobile recliner; provision of a low bed; offering safety reminders when necessary; placement of shock-absorbing floor mats next to the bed; physical or occupational therapy evaluations; medication adjustments (to reduce agitation or anxiety); movement of resident to areas of the facility where he could be more closely monitored, especially when he was agitated or unable to sleep; performance of a psychiatric examination (which was done on January 30); and provision of a scoop mattress. Some of these measures were taken in response to what the nursing staff assumed were falls or other accidents.

10. Although the occurrence of an accident is not an element of the deficiency, the circumstances of an accident may be some evidence of a lack of appropriate supervision.

CASE | DECISION | JUDGE | FOOTNOTES