SUBJECT:

Lebanon Nursing and Rehabilitation Center,

Petitioner,

Centers for Medicare & Medicaid

DECISION

I enter summary disposition against Petitioner, Lebanon Nursing and Rehabilitation Residence, and in favor of the Centers for Medicare & Medicaid Services (CMS). I find that Petitioner failed to comply substantially with a Medicare participation requirement during a period that began on February 21, 2001, and which ran through March 21, 2001. I sustain the imposition of civil money penalties against Petitioner in the amount of $400 per day for each day of this period.

I. Background

Petitioner is a skilled nursing facility in Ohio that participates in the Medicare program. Its participation in Medicare is subject to the requirements of sections 1819 and 1866 of the Social Security Act and to federal regulations at 42 C.F.R. Parts 483 and 488.

On February 21, 2001, Petitioner was surveyed for compliance with federal participation requirements by surveyors employed by the Ohio Department of Health (ODH). The ODH surveyors found Petitioner not to be complying substantially with four distinct federal participation requirements. Petitioner requested that these findings be reviewed. An informal dispute resolution proceeding was convened and it was determined that, in fact, Petitioner was not complying substantially with only one of the four participation requirements that had been cited by the surveyors. The allegations as to the other three requirements were deleted. Petitioner was re-surveyed on March 22, 2001, and was found to be complying substantially with federal participation requirements as of that date.

CMS accepted these findings of noncompliance, as modified by the informal dispute resolution outcome, and determined to impose remedies against Petitioner consisting of civil money penalties of $400 per day for each day of a period that began on February 21, 2001, and which ran through March 21, 2001. ⁽¹⁾ Petitioner requested a hearing to contest the remedy determination and the case was assigned to me for a hearing and a decision. I convened a hearing in Cincinnati, Ohio, on March 20, 2003. On that date the parties and I reported to the designated hearing site. Unfortunately, Department of Health and Human Services staff failed to discharge their responsibility to hire a court reporter and I was forced to recess the hearing.

Subsequently, CMS moved for summary disposition alleging that there were no disputed issues of material fact in the case. Petitioner opposed the motion.

As part of its pre-hearing submission, CMS filed 29 proposed exhibits (CMS Exs. 1-29). Additionally, CMS filed written witness declarations from David Thompson and Bernadette Poole. CMS did not identify these two declarations with exhibit numbers. I identify the Thompson declaration as CMS Ex. 30, and the Poole declaration as CMS Ex. 31.

Petitioner filed two proposed exhibits (P. Exs. 1-2). Additionally, it submitted a written declaration from Gregory Carpenter, D.O. and two written declarations from Kimberley T. Berner, RN, C. The first declaration from Ms. Berner is dated September 9, 2002. The second declaration from her is dated May 26, 2003. Petitioner did not identify its witnesses' declarations. I identify the Carpenter declaration as P. Ex. 3. I identify the September 9, 2002 Berner declaration as P. Ex. 4. Finally, I identify the May 26, 2003 Berner declaration as P. Ex. 5.

I am receiving all of the parties' proposed exhibits, including the witnesses' declarations that I have just discussed, into the record of this case. I note, however, that most of the allegations of material fact in this case arise from, or are supported by, only a few of these exhibits. Below I discuss or allude to the exhibits which support those allegations.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. Summary disposition is appropriate;

2. Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(h)(2);

3. Petitioner's noncompliance persisted during a period that began on February 21, 2001, and which ran through March 21, 2001; and

4. It is reasonable to impose civil money penalties of $400 for each day of the period that began on February 21, 2001, and which ran through March 21, 2001.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. Summary disposition is appropriate.

Summary disposition in administrative cases involving CMS is governed by the principles of summary judgment that are set forth at Rule 56 of the Federal Rules of Civil Procedure. Livingston Care Center, DAB CR906 (2002) aff'd, DAB No. 1871 (2003). Summary disposition is appropriate where there are no disputed issues of material fact. A material fact is a fact which, if established, might affect the parties' dispute over a particular issue. The moving party has the obligation to aver the material facts that it is relying on and which it alleges to be undisputed. Fed. R. Civ. P. 56(c). It is appropriate to grant summary disposition where conclusions favorable to the moving party may be drawn from undisputed material facts and applicable law.

Summary disposition is not appropriate if material facts are genuinely disputed. But, a genuine dispute as to material facts does not exist simply because a party avers that a dispute exists. In order to prevail against a motion for summary disposition, a party opposing the motion must aver facts of its own which place into dispute those facts that are relied on by the moving party. Or, alternatively, the opposing party may argue that the undisputed facts do not, as a matter of law, establish a basis for disposition of the case. But, it is simply not enough for an opposing party to aver that facts exist which refute the moving party's averred facts without saying what those opposing facts consist of.

It is also an insufficient basis to oppose summary disposition for the opposing party to claim that unspecified facts exist to challenge a moving party's averred facts, but that they must be introduced on the record at an in-person hearing. A party who opposes a motion for summary disposition need not prove in its response to the motion the existence of facts that it alleges create a dispute as to material facts. But, it must specifically allege those facts which, if true, would create a dispute.

Furthermore, a party may not resist a motion for summary disposition by speculating that direct testimony or cross-examination might bring out unspecified facts that contradict those facts that are averred by the moving party. As I held in Livingston:

The right to confront and cross-examine a witness is a fundamental right. But, that does not mean that a party may impose an absolute bar against imposition of summary disposition simply by asserting that right. If that were so, no motion for summary disposition ever could be granted.

DAB CR906, at 5.

Finally, the concept of material facts must not be confused with conclusions that are based on material facts. A conclusion is a finding that may be drawn from material facts. A dispute between the parties as to the correct conclusion to draw from the facts will not be an impediment to the entry of summary disposition if the material facts are not disputed.

There are no disputed issues of material fact in this case. CMS's noncompliance allegations all relate to the care that Petitioner gave to two of its residents who are identified in the report of the February 21, 2001 survey as Resident Nos. 39 and 57. CMS Ex. 9, at 1-4. All of the facts that are relevant to the care that Petitioner gave to these residents are alleged in the report of the February 21, 2001 survey, and are evidenced by the residents' treatment records that were created and maintained by Petitioner's staff. Indeed, all of the allegations of noncompliance are based on ODH surveyors' review of these treatment records. None of the allegations are based on surveyors' contemporaneous observations of activities at Petitioner's facility. And, although both sides listed witnesses to give potential testimony, none of these witnesses' written declarations describe any facts which are relevant to the case and which exist independently from the residents' treatment records. ⁽²⁾

In opposing CMS's motion for summary disposition, Petitioner has not averred any material facts that call into question or rebut the facts on which CMS bases its allegations of noncompliance. Petitioner asserts that, "at the very least a credibility battle exists to thwart summary judgment in favor of CMS . . . ." Lebanon Nursing and Rehabilitation Residence's Memorandum in Opposition to Motion for Summary Judgment (Petitioner's Brief) at 2. I find that this argument fails in part because it reduces to speculation that cross-examination might benefit Petitioner's case without explaining how such cross-examination could benefit Petitioner's case. Petitioner has offered no statement of facts that might even possibly emerge from cross-examination that would arguably change the outcome of this case.

The argument fails also because the testimony of CMS's proposed witnesses adds no material facts to the case. The testimony consists entirely of opinions about the significance of the facts that are contained in the treatment records of Resident Nos. 39 and 57. This is as much as admitted by Petitioner. In Petitioner's own words:

[I]t appears that all of the "analysis" from the declarations of CMS's witnesses come from the static "interpretation" of documents. CMS's declarants did not prepare the documents.

Petitioner's Brief at 3.

Petitioner also argues that, at one time, CMS believed that an in-person hearing would be necessary in this case. Petitioner alludes to this evidently to support its contention that an in-person hearing is necessary now. However, whether a hearing is necessary or unnecessary depends not on the opinions of the parties at some point during the proceedings, but on the presence or absence of undisputed material facts on which a decision may be made.

The most important reason for rejecting Petitioner's arguments against summary disposition lies in the fact that nothing that Petitioner submitted in this case raises a dispute as to any of the material facts. Indeed, as is apparent from Petitioner's opposition to CMS's motion, CMS and Petitioner rest their arguments on identical fact allegations. It is beyond question that the parties offer decidedly different arguments about the significance and legal import of these facts. But, nonetheless, the underlying material facts are not in dispute.

2. Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(h)(2).

CMS alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(h)(2). The regulation requires that each resident of a facility receives adequate supervision and assistive devices in order to prevent accidents from occurring.

The regulation has been the subject of considerable litigation and a facility's duties pursuant to the regulation are well-established. The regulation does not contain a "per se" liability standard. A facility is not liable for an unforeseeable accident that may occur to a resident. But, a facility is obligated to take all measures that are within its capability to prevent any accident that is reasonably foreseeable. This standard means that a facility is under an obligation to assess each resident individually and to ascertain the hazards that the resident might encounter based on that resident's physical and mental condition. And, the facility has a duty to do whatever it can do that are within its powers to protect the resident against such hazards. If, for example, a resident is prone to falling, a facility must take all steps that are within its powers to guard the resident against sustaining falls. If a resident has mental limitations or dementia the facility must anticipate how these limitations or dementia might place the resident at risk for harm and it must do what it can to protect the resident against such possible harm.

CMS alleges that Petitioner failed adequately to supervise or to assist Resident Nos. 39 and 57 with the consequence that each of these residents fell and was injured. It urges that Petitioner's failures to supervise and assist these residents are evidence from which I may infer noncompliance by Petitioner with the requirements of 42 C.F.R. § 483.25(h)(2). CMS asserts that the falls which each of the two residents sustained were foreseeable and, yet, Petitioner did not take adequate measures to protect the residents. And, CMS argues that the failures in the two cases is emblematic of broader problems at Petitioner's facility.

CMS contends that Resident No. 39's records show that she had physical and mental impairments which placed her at risk for falling. It argues that the resident had a well-documented history of falls. CMS asserts that, moreover, the resident was at a heightened risk for falling as a consequence of injuries that she had sustained shortly prior to November 26, 2000, and her mental state on the day of her fall. But, according to CMS, Petitioner's staff left the resident alone in her room in a standing position, and under circumstances where any reasonable health care worker knew or should have known that the resident was at a high risk for a fall or an injury. Ultimately, while left alone the resident fell.

CMS relies on the following facts to support its allegations: ⁽³⁾

• Resident No. 39 had a constellation of illnesses and impairments that placed her at risk for falls. The resident suffered from dementia and Alzheimer's disease, had poor vision, found it difficult to maintain her balance while standing, was unsteady on her feet, and required partial physical support to maintain her balance while sitting. P. Ex. 1, at 14, 33, 35, 40.

• The resident had fallen in the days that preceded the fall that she sustained on November 26, 2000. On November 8, 2000, the resident fell while attempting to sit in a chair. P. Ex. 1, at 28. On November 15, 2000, the resident was found on the floor next to her bed. Id.

• The resident sustained an injury to her left hand on November 25, 2000, the day prior to her November 26, 2000 fall. As a consequence of this injury the resident's left hand was heavily bandaged. P. Ex. 1, at 7. Protective mittens were placed on the resident's hands and soft wrist restraints were applied to both of the resident's arms in order to prevent her from inadvertently removing her bandage. Id. at 1-7, 9, 26, 37, 82.

• On November 25, 2000, the resident received medication including ativan and demoral, which could produce side effects of sedation, drowsiness, and dizziness, lasting up to 24 hours. P. Ex. 1, at 22, 25. On November 26, 2000, the resident received additional medications, including cogentin, ativan, and trilafon, which could produce side effects of sedation, drowsiness, and dizziness. Id. at 22, 24, 25.

• On November 26, 2000, the resident was observed by Petitioner's staff to be confused and showing signs of impaired judgment. P. Ex. 1, at 22.

• Petitioner's staff was aware of the fall risk presented by Resident No. 39. Her care plan and fall risk assessment noted her to be at risk for falls. CMS Ex. 22, at 68; P. Ex. 1, at 35, 49.

• At 2:30 p.m. on November 26, 2000, the resident asked to use the bathroom. One of Petitioner's nursing staff instructed a nurse's aide to assist the resident. P. Ex. 1, at 23, 26. While in the bathroom, the resident stood up and urinated on the floor. A nurse's aide assisted the resident out of the bathroom. The aide instructed the resident to hold on to a bed frame while the aide left the room to search for an incontinence brief for the resident. Id. at 23. The nurse's aide then left the resident standing alone in the room. Id.

• At some point after the aide left the room, she heard the resident utter a noise. The aide reentered the resident's room. She observed the resident lying on the floor near the sink. P. Ex. 1, at 26.

• The resident complained of left hip pain. Resident No. 39 was transported to a hospital and was diagnosed with a fracture of the left hip. P. Ex. 1, at 27, 62, 67.

CMS contends that, as was the case with Resident No. 39, Resident No. 57 had a medical history that put her at high risk for sustaining an injury-producing fall from her bed. The resident had a history of falls and some of these incidents involved falling out of her bed. CMS contends that Petitioner's staff provided inadequate supervision and assistance to the resident to protect her against falling from her bed in spite of the resident's known risk factors and history of falling out of bed. CMS argues that the assistance that Petitioner gave to the resident - stationing a wheelchair and a walker next to the resident's bed so as to remind the resident of the need to have assistance in getting out of bed and in ambulating - was totally inadequate in light of the resident's obvious cognitive deficits. CMS contends that the failure to provide adequate supervision and assistance to Resident No. 57 led to her falling out of bed on February 11, 2001, and sustaining a head injury.

The facts which CMS asserts support its allegations of noncompliance in the case of Resident No. 57 consist of the following: ⁽⁴⁾

• Resident No. 57 suffered from dementia and Alzheimer's disease. P. Ex. 2, at 8, 12. The resident was observed to be disoriented and to be unable to follow even simple directions. Id. at 34.

• The resident had a history of falls during her stay at Petitioner's facility. The resident sustained a fall on December 30, 2000 which resulted in a hip fracture. P. Ex. 2, at 3-4, 24. She sustained a second fall, from her bed, on January 16, 2001, and a third fall, also from her bed, on January 31, 2001. Id. at 24-25.

• After the January 16, 2001 fall, the intervention that Petitioner's staff implemented as a fall preventative consisted of placing a wheelchair on the left side of the resident's bed and a walker on the right side of the bed. P. Ex. 2, at 8, 25.

• After the January 16, 2001 fall, Petitioner's staff concluded that Resident No. 57 was not capable of comprehending the staff's instructions to her that she should not attempt to get out of bed without assistance. P. Ex. 2, at 8.

• After the January 30, 2001 fall, the intervention that Petitioner's staff implemented was to "keep resident up after dinner as tolerated. If resident is restless in bed get back up to allow for close observation." P. Ex. 2, at 25. Petitioner's staff implemented no additional interventions.

• On February 11, 2001, a nursing assistant heard a cry from Resident No. 57's room. The resident was found to be lying on the floor between the bed and the wheelchair that had been placed near the bed. P. Ex. 2, at 15. The resident was sent to a hospital where she was found to have sustained a subdural hematoma. CMS Ex. 23, at 46.

The foregoing facts describe a prima facie case of failure by Petitioner to provide its residents with supervision necessary to prevent accidents. The facts which relate to Resident Nos. 39 and 57 tell a similar story in each case. In each case, the resident was highly vulnerable to falling and, indeed had a history of falls. In each case, Petitioner's staff was aware of the resident's vulnerabilities. Yet, in each case, Petitioner's staff failed to provide aid to the resident that was reasonably necessary to prevent the resident from falling. In each case, the consequence was that the resident sustained a fall.

The inference that I draw from the facts presented by CMS about Resident No. 39 is that the resident sustained a fall on November 26, 2000, because Petitioner's staff failed to supervise the resident consistent with the resident's limitations and needs. The prima facie facts show that Resident No. 39 was at great risk for falling. The resident's gait and balance were so impaired that she needed assistance in ambulating. Her dementia affected her judgment. Moreover, on November 26, 2000, the resident's ability to balance and steady herself were further impaired as a consequence of her left hand being heavily bandaged and her wearing mittens and flexible wrist restraints. Petitioner's staff was well-aware of these limitations. Yet, on November 26, 2000, a nurse's aide left the resident alone, in a standing position. Consequently, the resident fell.

I draw a substantially identical inference from the facts presented by CMS about Resident No. 57. This resident sustained a fall on February 11, 2001, because Petitioner's staff failed to take appropriate actions to prevent the resident from falling from her bed. The staff knew that the resident was at a great risk for falling from bed. She had fallen from bed twice in the month prior to February 11, 2001. The staff also knew that the interventions that they had implemented to prevent the resident from falling from bed were ineffective. Placing a wheelchair and a walker next to the resident's bed after the January 16, 2001 fall did nothing to protect the resident against falling subsequently. Notwithstanding, the resident was left alone in bed on February 11, 2001, without additional protections against falling having been implemented. On that date, she fell from her bed and was injured.

The cases of Resident Nos. 39 and 57, when read together, are a basis for me to conclude that Petitioner was not complying with the requirements of 42 C.F.R. § 483.25(h)(2) as of February 21, 2001, the date of the OHD survey of Petitioner. The fact that episodes of failure to properly supervise residents, resulting in their sustaining falls occurred over a period of several months prior to February 21, 2001, gives reason for me to infer that Petitioner had a systemic problem with failing to protect its residents. The likelihood of harm to the residents is evident.

As I discuss above, at Finding 1, Petitioner has not offered any facts which contradict or rebut the facts on which CMS relies to make its case. Petitioner relies on the opinions of Ms. Berner in order to refute CMS's assertions. P. Exs. 4, 5.

In making this conclusion, I am not suggesting that Ms. Berner's declarations - or for that matter, Petitioner's other exhibits - are completely devoid of facts. Ms. Berner, for example, cites numerous facts in support of her opinions. But, none of the facts on which Ms. Berner relies, other than those that are cited by CMS, are material to the allegations of noncompliance that are at issue here. For example, in her May 26, 2003 declaration, Ms. Berner avers that Resident No. 39 was not found in her bathroom after she fell but by the sink in her room. P. Ex. 5, at 2. I will accept that representation as true, although Petitioner has not offered evidence to show that its residents' rooms are equipped with sinks that are located outside of the bathrooms. But, assuming the truth of the assertion, it is irrelevant. The issue here is not where Resident No. 39 fell, but whether she fell as a result of being left unattended.

I find Ms. Berner's opinions not to be persuasive for the reasons that I discuss below.

Ms. Berner asserts that Resident No. 39 was right-handed and that it was her left hand that was bandaged on November 26, 2001. P. Ex. 5, at 1. Ms. Berner contends that the resident could still use her left hand to assist in balancing herself. I will accept Ms. Berner's opinion as true on this point. But, it does not detract from CMS's assertion that the resident was deprived of necessary supervision on November 26, 2001. The hand injury and the bandages and mittens that the resident was wearing on November 26^th certainly did not add to the resident's ability to stand unassisted. But, she should not have been left alone even if she could balance herself by using only her right hand. The resident was an individual whom Petitioner's staff identified as unsteady on her feet and in need of support even before she sustained an injury to her hand. It was inappropriate to leave the resident standing alone on November 26, 2001, even had she sustained no injury to her hand.

Ms. Berner states that it was "inconsequential" that the resident may have needed assistance to stand early in the morning of the 26^th of November 2001, or that "on one or maybe two occasions" the resident was placed in a geri-chair with a tray to prevent her from removing the bandages on her left hand. P. Ex. 5, at 2. In making this assertion she seems to suggest that Resident No. 39 was not so unsteady on November 26, 2001, that it was inappropriate to leave her unattended. I find this to be unpersuasive. I will accept as true, for purposes of making my decision, Ms. Berner's implicit assertion that the resident's unsteadiness had improved somewhat by the afternoon of November 26, 2001, although it is not based on any clinical findings. But, it is also irrelevant. The possibility that the resident was more unsteady than was her usual state early on the morning of November 26, 2001 is no reason for Petitioner's staff to have left her standing unattended on that afternoon. The undisputed facts establish that, even under the best of circumstances, the resident needed assistance due to her balance and gait problems. That is made evident by the resident's well-documented history of falls. Indeed, the fact that she was in need of assistance on the morning of the 26^th of November served as a reminder to Petitioner's staff that this resident needed help whenever she stood.

Ms. Berner disputes that the resident was suffering from medication side effects on November 26, 2001. P. Ex. 5, at 2. She also denies that the resident was suffering from delirium on that date. Id. I will assume for purposes of my decision that these opinions are correct. However, they do not provide reasons which justify leaving the resident standing and unattended. This was a demented individual whom suffered from numerous impairments that made her a serious risk for falling if left unattended. The resident would have been at serious risk for falling, even accepting as true Ms. Berner's speculation that she was not delirious or experiencing the effects of medications on the afternoon of November 26^th. The possibility that the resident might have had additional problems, including delirium or medication side effects on the afternoon of November 26^th gave Petitioner's staff even more reason to stay with her at all times. But, she should have had assistance whether or not she was suffering from delirium or medication effects.

Ms. Berner also asserts that Resident No. 39 did not actually slip on November 26, 2001. Rather, according to her, the resident "sustained a pathological break of her leg/hip, then fell as a result." P. Ex. 5, at 3. I find no support for this assertion in the record. There simply is no evidence to show that the resident fell "as a result" of a hip fracture. Petitioner's other witness, Dr. Gregory Carpenter, opined that the resident's hip fracture may have preceded her fall on November 26, 2001. P. Ex. 3, at 2. Assuming that to be true, that is not proof that the fracture caused the fall, as Ms. Berner asserts. But, more important, Ms. Berner's assertion is irrelevant. The precise cause of the resident's fall is not important. What matters here is that the resident was highly susceptible to falling and Petitioner's staff knew that. Her diagnoses of record included osteoporosis and that was all the more reason not to leave the resident standing unattended on November 26, 2001.

With respect to Resident No. 57, Ms. Berner averred that: "[a]ssessments were performed, multiple therapies were consulted, the physician and psychiatrist were involved, and interventions were implemented not only in response to each fall . . . but in anticipation of the next fall . . . ." P. Ex. 4, at 4. However, CMS is not alleging that Petitioner failed to propose or undertake interventions to address the resident's frequent falls. CMS's allegations are that Petitioner failed to undertake appropriate interventions. The prima facie facts that I discuss above support this assertion.

Ms. Berner asserts that it was unavoidable that Resident No. 57 would fall. P. Ex. 4, at 4. She contends that imposing additional restrictive devices would have been inappropriate to deal with the resident's propensity for falling. Id. at 5. For purposes of this decision I accept both of these assertions as correct. But, that does not suggest that Petitioner did all that it reasonably could do to protect the resident against the consequences of repeated falls from her bed. Saying that further falls were inevitable does not absolve Petitioner of its obligation to try to prevent the resident from falling, and to protect the resident from injuries that the resident might sustain from falls.

Finally, Ms. Berner avers that the decision to place a wheelchair and a walker next to the resident's bed was made by Petitioner's physical therapy department in conjunction with Petitioner's falls committee. P. Ex. 4, at 5. She contends that this was a "successful intervention" between January 17 and 31, 2001. She asserts that the fall Resident No. 57 sustained on January 31, 2001 was "an attempted self-transfer that was complicated by a cardiac episode producing syncopy, that could not be anticipated nor prevented by any other interventions." Id. All of this may be true but it begs the question of whether Petitioner was doing enough to protect Resident No. 57. Petitioner's staff knew, as of January 31, 2001, that placing a wheelchair and a walker next to the resident's bed was an ineffective intervention because the placement of those devices did nothing to deter the resident from falling out of bed on that date.

What Ms. Berner fails to address throughout her testimony is Petitioner's failure to take needed measures to protect its residents. In the case of Resident No. 39, Petitioner knew that the resident was a fall risk at any time that the resident was on her feet. Petitioner's staff never should have left the resident standing unattended. Nothing that Ms. Berner says derogates from this unavoidable conclusion. In the case of Resident No. 57, Petitioner knew that the resident was highly likely to fall out of bed, and yet it failed to take reasonable, protective actions. As CMS contends, at the very least, Petitioner could have placed padding on the floor next to the resident's bed. Or, Petitioner could have lowered the bed to minimize the distance between the bed and the floor. Or, Petitioner could have put an alarm in the resident's bed that would alert Petitioner's staff to attempts by the resident to get out of bed unassisted. Saying that falls from bed were inevitable, as Ms. Berner contends, does not excuse Petitioner from failing to protect the resident. To the contrary, Ms. Berner's opinion only reinforces my conclusions that more needed to be done, that Petitioner knew that more needed to be done, and that Petitioner failed to do what was reasonably necessary.

3. Petitioner's noncompliance persisted during a period that began on February 21, 2001, and which ran through March 21, 2001.

The duration of noncompliance is a potential issue in any case where it is shown that a facility failed to comply substantially with one or more Medicare participation requirements. Here, CMS contends that Petitioner's noncompliance extended from February 21, 2001, the date of the survey at which noncompliance was first established, until March 21, 2001, the day before a followup survey at which Petitioner was found to be complying substantially with participation requirements.

In other cases, I have held that once a facility is found not to be complying substantially with a participation requirement or requirements, a presumption exists that the facility remains out of compliance until that facility is resurveyed and found to have corrected its deficiencies. A facility may rebut that presumption by proving, by a preponderance of the evidence, that it came back into compliance at an earlier date than the resurvey date. Petitioner offered no facts in this case, nor has it argued, that if it was not complying substantially with a participation requirement as of February 21, 2001, then it came back into compliance before March 21, 2001. Consequently, I find that Petitioner's noncompliance with the requirements of 42 C.F.R. § 483.25(h)(2) extended from February 21, 2001 through March 21, 2001.

4. It is reasonable to impose civil money penalties of $400 for each day of the period that began on February 21, 2001, and which ran through March 21, 2001.

I find civil money penalties of $400 per day for each day of the February 21 through March 21, 2001 period are reasonable. I do so because: (1) Petitioner's noncompliance was relatively serious; (2) Petitioner showed a significant degree of culpability for its noncompliance; and (3) Petitioner had a history of noncompliance involving the same deficiency. Moreover, Petitioner did not prove that its financial condition makes unreasonable imposition of penalties totaling $11,600.

My authority to hear and decide this case is de novo. In deciding what civil money penalty amounts are reasonable I do not simply review CMS's civil money penalty determination. Instead, I conduct a de novo review of the facts which relate to the issue of penalty and I make an independent decision as to what is reasonable. In doing so I am bound by the regulatory factors for deciding penalty amounts that are stated at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). These factors include: a facility's history of noncompliance; the seriousness of its noncompliance; its financial condition; and its culpability. Id.

The range of civil money penalty amounts that may be imposed for a deficiency or deficiencies that does not place residents of a facility at immediate jeopardy is from $50 to $3,000 per day. The deficiency at issue here is not an immediate jeopardy level deficiency so any penalties that I sustain must fall within the $50 to $3,000 daily range.

The undisputed material facts of this case support penalties of $400 per day. First, the facts show that Petitioner's deficiency was relatively serious. Petitioner put its fall-prone residents at risk of sustaining serious injuries by not supervising or assisting them adequately. Resident Nos. 39 and 57 were frail, sick individuals, who clearly were vulnerable to serious injuries if they fell. Petitioner unnecessarily exposed them to such risks.

I note that Petitioner disputes whether Resident No. 39 actually was injured as the result of her fall on November 26, 2000. Petitioner contends that the hip fracture that was diagnosed after the fall actually preceded the fall. I will assume that contention to be true for purposes of my decision. But, that does not detract from my conclusion that Petitioner put the residents at risk for serious injury as a result of not supervising or assisting them adequately. Moreover, there is no dispute that Resident No. 57 was seriously injured from the fall that she incurred on February 11, 2001.

Second, the undisputed facts establish a relatively high degree of culpability on Petitioner's part. In both the cases of Resident Nos. 39 and 57, Petitioner's staff knew that there were risks to the residents that had to be addressed and yet failed to address those risks. In the case of Resident No. 39, the staff disregarded those known risks by leaving the resident unattended. In the case of Resident No. 57, Petitioner's staff failed to provide additional assistance to the resident when their interventions proved themselves to be ineffective.

Third, Petitioner's noncompliance history establishes that previously, in September 2000, Petitioner was cited for the same deficiency - failure adequately to supervise residents - that is at issue here. CMS Ex. 29, at 1. Petitioner's compliance history put it on notice that it had to be attentive to the needs of its residents. Petitioner ignored the lessons that it should have learned and repeated its deficiency.

Petitioner has not disputed any of the facts which are the basis for my conclusions. Instead, Petitioner makes two arguments. First, Petitioner contends that CMS failed to "establish what CMS did in actually assessing the propriety of the . . . [civil money penalties] in this case." Petitioner's Brief at 20. Second, Petitioner seems to argue that its financial condition does not justify imposing the total penalty amounts of $11,600 that are at issue here. Id.

I find neither of these arguments to be persuasive. Petitioner's first argument is not persuasive because it is irrelevant as a matter of law what CMS did to determine the penalty amounts. As I state above, this case is not a review of the propriety of CMS's determination. It is a de novo proceeding in which I look at the evidence independently. Consequently, the way in which CMS made its determination is not significant.

Petitioner's second argument is not persuasive because Petitioner has not made any showing that it lacks the wherewithal to pay penalties totaling $11,600. Petitioner asserts that "one is left to speculate as much as CMS does in its Motion what effect the imposition of the CMP will have and whether it will put the facility out of business." Petitioner's Brief at 20. Implicit in this argument is that CMS has the burden of proving the negative proposition that a facility's performance will not be injured by civil money penalties. I disagree with this construction. It is not CMS's burden to prove that a facility will not be seriously injured financially by civil money penalties. Indeed, CMS is under no obligation - nor may it reasonably be expected - to offer prima facie proof of a negative proposition. It is a facility's burden to prove that it will be seriously injured if it wishes to argue that its financial condition precludes it from paying penalties.

Here, Petitioner has offered nothing. Petitioner asserts that:

One presumes that by imposing the . . . [civil money penalties] that CMS wishes for the facility to come into compliance as opposed to cutting services and staff. Yet, that seems to be what would result.

Petitioner's Brief at 20-21 (emphasis added). The assertion that cutting services and staff would seemingly be the result of $11,600 in civil money penalties is speculative. Petitioner has not offered any facts that would show this to be the case and, consequently, I make no findings that Petitioner's operations will be affected adversely.

Steven T. Kessel

Administrative Law Judge

1. Originally, CMS made its remedy determination based on the findings of four deficiencies that had been made at the February 21, 2001 survey. It determined, among other things, to impose civil money penalties of $500 per day against Petitioner. CMS reduced the penalty amounts to $400 per day after three of the four deficiency findings were deleted as a consequence of the informal dispute resolution proceeding.

2. In a pre-hearing order, I directed the parties to reduce all of their witnesses' proposed testimony to writing and to submit it as affidavits or declarations made under oath.

3. I note that many of CMS's fact allegations concerning this resident are supported by the contents of Petitioner's proposed exhibits.

4. As is the case with the previous resident, the fact allegations made by CMS find support in Petitioner's proposed exhibits.