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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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North Woods Village, |
DATE: March 09, 2004 |
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The Inspector General
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Docket No.C-01-117
Decision No. CR1152 |
| DECISION | |
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DECISION
This matter is before me on the Centers for Medicare & Medicaid Services (CMS's) Motion for Summary Judgment, and Petitioner's Cross-Motion for Summary Disposition. (1) I sustain CMS's determination for the mandatory denial of payment for new Medicare admissions, effective October 27, 2000, and the imposition of a civil money penalty (CMP) of $9,700 for the period covering July 23, 2000 through October 27, 2000. Therefore I hereby grant CMS's motion for summary affirmance and deny Petitioner's cross-motion.
North Woods Village (Petitioner) is a skilled nursing facility located in Kokomo, Indiana. On July 27, 2000, a complaint investigation of Petitioner was completed by the Indiana State Department of Health (State survey agency) to determine whether it was in compliance with federal requirements for nursing home participants. The survey found that Petitioner failed to provide each resident with adequate supervision and assistive devices to prevent accidents. The survey cited an isolated deficiency that constituted actual harm that is not immediate jeopardy. By notice dated September 6, 2000, CMS advised Petitioner of its determination to impose a CMP of $100 per day (totaling $9,700). CMS Exhibit (CMS Ex.) 11, at 1. On November 6, 2000, Petitioner filed a request for hearing. This case was assigned to me for a hearing and decision. My decision is based on the memoranda and other pleadings filed by both parties, and on the documents attached to those memoranda. CMS submitted 12 proposed exhibits (CMS Exs. 1 - 12) with its initial brief (CMS Br.). Petitioner submitted what it designated as three proposed exhibits with its opposition and cross-motion (P. Opp.) on March 23, 2001. Petitioner marked its three exhibits as "Petitioner's Exhibits (P. Exs.) 1, A, and B." For the sake of consistency, I have re-marked Petitioner's proposed exhibits as follows: P. Ex. 2 - Employee Performance Improvement Plan; and P. Ex. 3 - 7/24/2000 Progress Report Notes. CMS filed a reply brief (CMS Reply) in support of its motion for summary affirmance and in opposition to Petitioner's motion for summary judgment. Petitioner filed a reply (P. Reply) in support of its cross-motion on April 25, 2001. CMS filed a motion to strike Petitioners reply, or in the alternative, motion for leave to file a sur-reply. I deny CMS's motion to strike, et al., as moot. Without objections from either party, I have admitted the proposed exhibits as CMS Exs. 1 - 12 and P. Exs. 1 - 3.
The issues in this case are:
The Social Security Act (Act) (42 U.S.C. § 1320a-7a(c)(4)) sets forth requirements for nursing facility participation in the Medicare and Medicaid programs, and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing the statutory provisions. Act, sections 1819, 1919. The Secretary's regulations governing nursing facility participation in the Medicare program are found at 42 C.F.R. Part 483. To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements. 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. Under the statute and the "Quality of Care" regulation, each resident must receive, and the facility must provide, the necessary care and services to allow a resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident's comprehensive assessment and plan of care. Act, section 1819(b); 42 C.F.R. § 483.25. Specifically, the regulations mandate that the facility must ensure that:
42 C.F.R. § 483.25(h)(2). If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, which include the imposition of a CMP. See Act, section 1819(h). The regulations specify that a CMP that is imposed against a facility will fall into two broad ranges of penalties. 42 C.F.R. §§ 488.408, 488.438. The upper range of CMPs, of from $3,050 per day to $10,000 per day, is reserved for deficiencies that constitute "immediate jeopardy" to a facility's residents, and in some circumstances, for repeated deficiencies. 42 C.F.R. §§ 488.438(a)(1), (d)(2). The lower range of CMPs, of from $50 per day to $3,000 per day, is reserved for deficiencies that do not constitute "immediate jeopardy," but either cause actual harm to residents, or cause no actual harm, but have the potential for causing more than minimal harm. 42 C.F.R. § 488.438(a)(2). In determining the amount of the CMP, the following factors specified at 42 C.F.R. § 488.438(f) must be considered:
When a CMP is imposed, CMS must make a prima facie case that the facility has failed to comply substantially with federal participation requirements. To prevail, a long-term care facility must overcome CMS's showing by a preponderance of the evidence. Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehab. Ctr. v. U. S. Dept. of Health & Human Services, Health Care Financing Administration, No. 98-3789 (GEB), slip op. at 25 (D.N.J. May 13, 1999). The Act and regulations make a hearing before an administrative law judge (ALJ) available to a long-term care facility against whom CMS has determined to impose a CMP. Act, section 1128A(c)(2); 42 C.F.R. §§ 488..408(g), 498.3(b)(12), (b)(13). The hearing before an ALJ is a de novo proceeding. Anesthesiologists Affiliated, et al., DAB CR65 (1990), aff'd, 941 F.2d 678 (8th Cir. 1991).
I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below in italics as a separate heading followed by a discussion of these Findings.
Summary judgment is appropriate when there is no genuine issue as to any material fact and one of the parties is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. If the moving party meets this burden, the onus shifts to the opposing party to establish that a genuine issue does exist. The opposing party will have shown that genuine issues of fact are present "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 249 (1986). To accomplish this, the opposing party must go beyond mere allegations and come forward with factual evidence that creates a genuine issue of material fact. All reasonable inferences are to be drawn in the opposing party's favor. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3rd Cir. 1986). I have considered all of the evidence set forth in the papers submitted and conclude that all of that evidence and all of the inferences drawn from such evidence permit no doubt as to the propriety of granting CMS's motion for summary judgment inasmuch as there is no issue of material fact to be tried. Carrier Mills Nursing Home, DAB No. 1883 (2003). CMS's motion is properly supported by the documentary evidence. In the case before me, CMS has filed a request for summary judgment and Petitioner responded by filing a cross-motion and response briefs. Petitioner concedes that the event in question did occur, as set forth in the Form 2567 statement of deficiencies (July 27th survey report) prepared by the State survey agency on July 27, 2000. P. Opp. at 3; CMS Ex. 9, at 3 - 4. CMS does not dispute the facts. Inasmuch as there are no material facts in dispute, and the findings made by the Indiana State survey agency are sufficient to resolve the issues in this case, summary judgment is proper without an evidentiary hearing. Carrier Mills Nursing Home, supra.
The regulation at issue requires that a facility must meet certain requisite standards. At F Tag 324 of the July 27th survey report, CMS determined that Petitioner was not in substantial compliance with the regulation concerning resident quality of care, 42 C.F.R. § 483.25(h)(2) at a G-level of severity. The regulation at 42 C.F.R. § 483.25(h)(2) requires that:
The regulation does not create a "per se" liability. However, the regulation does create a requirement whereby a facility is bound to take all reasonable measures to prevent any foreseeable harm. Lebanon Nursing and Rehabilitation Center, DAB CR1069 (2003). Simply stated, a facility must take steps to evaluate each individual resident and determine the foreseeable hazards to each resident based upon such evaluation. Ultimately, the facility must take all reasonable measures within its power to circumvent any potential for anticipated hazards. The facts are undisputed. As of July 23, 2000, Sharon Robbins was a certified nurse's aide (CNA), employed at Petitioner's facility. P. Ex. 1, at 1. Among others, CNA Robbins was assigned to care for Resident #1 (R1). R1 is an 84-year-old female who suffers from heart and lung disease, dementia, and high blood pressure. CMS Ex. 2, at 1. R1 cannot ambulate and uses a wheelchair, but cannot move the wheelchair without assistance. CMS Ex. 3, at 1. In order to be placed and removed from her bed or wheelchair, a Hoyer lift is needed. CMS Ex. 2, at 3; CMS Ex. 3, at 1; CMS Ex. 4, at 1 - 2, 5. Such a requirement is noted by numerous references in the resident's patient record. CMS Ex. 2, at 3; CMS Ex. 3, at 1; CMS Ex. 4, at 1 - 2, 5; CMS Br. at 3 - 4. On July 23, 2000, R1 was scheduled to be removed from her bed for her meal. When making efforts to proceed with this task, CNA Robbins discovered that both the primary and secondary batteries for the Hoyer lift needed to be recharged. P. Ex. 1, at 1; CMS Ex. 6, at 1; CMS Ex. 7, at 2 - 3. CNA Robbins was instructed by her supervisor to recharge the lift batteries for 30 minutes, and specifically instructed not to attempt a manual transfer of R1. P. Ex. 1, at 1. However, contrary to her supervisor's instructions, CNA Robbins, with the assistance of another aide, attempted a manual transfer using the sheet transfer method. P. Ex. 1, at 1 - 2; P. Opp. at 3; CMS Br. at 4. While attempting the manual transfer, R1's knees buckled, causing the two aides to lower her to the floor. Id. R1 was examined by a podiatrist who determined that injury to R1's third toe on her left foot occurred, with the resulting injury being the loosening and bleeding of the toe nail. CMS Ex. 9, at 6; P. Opp. at 3; CMS Ex. 8, at 1, 2. CNA Robbins was ultimately given a written reprimand for her actions. P. Opp. at 3; P. Ex. 1, at 2. Petitioner does not dispute the facts as presented. However, Petitioner makes a valiant attempt to evade all responsibility for the occurrences of July 23rd. CNA Robbins has been more than candid in her admissions as they pertain to the accident in question. She readily accepts liability for her negligent behavior. In contrast, Petitioner makes a concerted effort to disassociate itself from CNA Robbins' actions. In arguments before this tribunal, Petitioner sought to demonstrate that the appropriate policies and safeguards were in place and that CNA Robbins deliberately chose to disregard them. P. Opp. at 6; P. Reply at 3. I cannot accede to Petitioner's argument. From the evidence presented, it is apparent that, but for the absence of fully-charged, functional batteries for use with the Hoyer lift, the incident which occurred on July 23rd more than likely could have been prevented. There is no question of Petitioner's part in the chain of events leading up to the accident involving R1. The brunt of Petitioner's argument is focused on showing that everything that could have been done was done to ensure the adequate assistive devices were in place for residents' use and, at any rate, this was an isolated incident. Petitioner asserts that it could not have been out of compliance in that there was nothing more it could have done to prevent the incident in question. P. Opp. at 9. Petitioner contends that, because the facility had a Hoyer life and spare batteries available for use, there can be no violation of 42 C.F.R. § 483.25(h)(2). Id. at 6. Petitioner then argues that the mere fact that the batteries were drained and required charging "does not equate to the facility failing to have assistive devices at the facility." Petitioner further contends that the fact that CNA Robbins elected not to follow the instructions of the nursing supervisor or utilize the Hoyer lift "is not a violation of 42 C.F.R. § 483.25(h)(2)." P. Reply at 3. In support of its position, Petitioner relies primarily on several Departmental Appeals Board (Board) decisions which, it contends, "demonstrate[s],one minor incident, such as this, is inadequate, as a matter of law, to establish a participation non-compliance with a requirement of participation and to support a CMP." P. Opp. at 7. Petitioner argues that the cases of Lifecare Center of Hendersonville, DAB CR542 (1998), Lake City Extended Care Center, DAB CR494 (1997), and Heath Nursing and Convalescent Center, DAB CR610 (1999) are "instructive in this case." Id. at 9. Petitioner further asserts:
Id. In Lifecare, the petitioner was cited for alleged toleration of physical and mental abuse of several of the facility residents. DAB CR542, at 1. Specifically, a nurse's aide lifted a patient without using a Hoyer lift, contrary to express instructions to the staff by the petitioner. The facts in Lifecare are analogous to the facts in the instant case. However, the regulatory provision under which the deficiency was cited in Lifecare was 42 C.F.R. § 483.13, which relates to a facility's implementation of policy to prevent abuse, mistreatment or neglect of its residents or "anti-abuse" policies. Although the ALJ entered a determination in favor of the petitioner, he did allude to the possibility of a violation had CMS:
DAB CR542, at 36-37. Lake City addressed the surveyors' determination that the petitioner, in one isolated incident, did not substantially comply with the requirement relating to standard of care for monitoring and reporting changes in a patient's condition. DAB CR494, at 10. Specifically, the surveyors alleged that the petitioner failed to monitor fevers of two of its residents and subsequently failed to advise the attending physicians when the fevers surpassed 101 degrees. DAB CR494, at 10. The ALJ found that a single incident of not reporting a significant change in a resident's condition had the potential for more than minimal harm; however the ALJ was not "persuaded that the resident was harmed by this omission by Petitioner's staff." Id. at 15. In both instances, the ALJ determined that the petitioner was not in violation of the regulations. Petitioner then cites to Heath Nursing and Convalescent Center, DAB CR610 (1999) for the proposition that the regulations:
P. Opp. at 9 (citing DAB CR610, at 4.) Ultimately, in its analysis of Heath Nursing, Petitioner concluded that the standard set forth in that case did not require a guarantee of favorable results but only that "adequate supervision and preventive measures" had been taken. Id. CMS challenges Petitioner's assertions, and I am in agreement with those challenges. CMS points to Petitioner's mistaken reliance, in one instance, upon partially reversed case law (in the case of Lake City) and, in another instance, an overly broad legal interpretation (in the case of Life Care). CMS Reply at 3-6. Since the ALJ determination in the intial Lake City case, it has become established law that a single, isolated occurrence which involves findings of more than a potential for minimal harm constitutes noncompliance with the applicable regulations. See Koester Pavilion, DAB No. 1750 (2000); Lake City Extended Care Center, DAB No. 1658 (1998); Coquina Center, DAB No. 1860, at 23 (2002) ([U]nder the regulatory scheme, any deficiency that has a potential for more than minimal harm is necessarily indicative of problems in the facility that need to be corrected.) (citing Lake City Extended Care Center, DAB No. 1658, at 14.) Based upon the established law, Petitioner's argument in this particular instance must fail. Likewise, Petitioner's reliance on the decision in Lifecare is unfounded and it too must fail. As discussed above, although the petitioner in that case was absolved from liability, it was pursuant to a regulatory provision not presently before me, i.e., 42 C.F.R. § 483.13, which would have a different outcome when applying the same set of facts as those in the instant case. Lastly, Petitioner's deficiency citation is not based upon Petitioner's failure to provide adequate supervision and assistive devices to prevent accidents. Basically, the violation stems from Petitioner's failure to implement procedures to prevent accidents. The Board in Cherrywood Nursing and Living Center, DAB No. 1845 (2002), when presented with a similar issue, determined that the facility's violation was the result of "its failure to implement procedures to prevent accidents as evidenced by the fact that its own employees did not follow the plan and directly caused accidental injuries to the resident." Cherrywood, at 9. The Board went on to determine that:
Id. at 10 (citing Emerald Oaks, DAB No. 1800, at 7, n.3 (2001); Ridge Terrace, DAB No. 1834 (2002)). Therefore, based upon the arguments and evidence, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(h)(2) on July 23rd.
Next, Petitioner raises the question of the "appropriateness" of the G-level scope and severity determination by CMS. P. Opp. at 10. Petitioner contends that, even assuming the existence of a section 483.25(h)(2) violation, the surveyor incorrectly assessed a G-level finding. Petitioner argues that "[s]ince the alleged deficient practice in fact caused a limited consequence to the resident (a bent toenail), it is not actual harm." Id. at 11 (emphasis in the original). In support of its position, Petitioner relies on the State Operations Manual (SOM) guidelines. Specifically, Petitioner leans heavily on the SOM definition of a Level 3 severity, which states:
SOM, Appendix P at 72; P. Opp. at 11. Petitioner argues that, based upon this definition, the SOM only provides for "two specific circumstances where an alleged deficient practice is not actual harm," i.e., "a deficient practice that only could cause limited consequence to the resident or a deficient practice that has caused limited consequent to the resident." P. Opp. at 11 (emphasis in the original). Petitioner concludes that, since the injury to R1 only caused "a limited consequence to the resident," and it did not "involve a 'negative outcome that has compromised the resident's ability to maintain and/or reach his/her highest practicable physical, mental and psychosocial well-being, . . .'" it is not actual harm. Id. CMS contends that Petitioner's reading of the SOM's provision is interpreted too narrowly. CMS Br. at 10. According to CMS, it does not matter that the injury suffered by R1 was not more serious. Id. What matters, according to CMS, is the "severity of the injury the deficient practice could have caused." Id. CMS argues that the act in question, i.e., not transferring R1 using a Hoyer lift as indicated in the resident's records, could have resulted in more serious injuries from which the resident's compromised health condition could not have recovered. Id. CMS also argues that administrative review of the scope and severity level in this case (i.e., the G-level determination) is prescribed by the regulations. CMS Reply at 7 - 8. The regulations dictate that a facility may not appeal a CMS determination as to the level of noncompliance, unless a successful challenge would effect the range of the CMP amount to be collected by CMS. 42 C.F.R. § 498.3(b)(14)(i). Petitioner has not argued that a change in the level of noncompliance would alter the CMP amount. As it presently stands, the CMP amount imposed is set at the extreme lower range of CMP amounts. See 42 C.F.R. § 488.438(a)(2). Even if CMS reduced the severity level from a Level 3 to a Level 2, the amount of the CMP would not be effected. The regulations dictate that CMS's determination as to the scope and severity of a deficiency must be upheld unless there is a showing that the determination is clearly erroneous. 42 C.F.R. § 498.60(c)(2). I concur with CMS's
interpretation of the regulations as they pertain to the reviewability
of a CMS scope and severity determination. Petitioner has not successfully
demonstrated that the G-level determination is erroneous, nor that the
amount of the CMP would be effected by a successful challenge. Therefore,
I must sustain the CMS's G-level determination.
As to the sufficiency and specificity of a party's request for hearing, 42 C.F.R. § 498.40(b) requires a party to:
In its initial brief, CMS argues that Petitioner did not raise the issue of the reasonableness of the CMP in its hearing request and, therefore, did not preserve the issue for hearing. CMS Br. at 12, 13. In support of its proposition, CMS relies on the decisions in Belmont Nursing & Rehabilitation Center, DAB CR507 (1997) and Midland Care Center, DAB CR611 (1999). In both cases, the petitioners raised issues related to the survey deficiency citations; however, the issue of the reasonableness of the CMP amount was not specifically contested. Petitioner counters CMS's argument by asserting that it did, in fact, challenge the amount of the CMP when it challenged the alleged noncompliance and the level of the noncompliance. P. Response at 12. Petitioner contends that, in specifically challenging "the findings of fact, the level of determination, and the alleged section 483.25(h)(2) violation, the reasonableness of the CMP is necessarily at issue." Id. at 13. Petitioner also disputes the applicability of the caselaw relied upon by CMS. In particular, Petitioner argues that neither case supports CMS's position. Id. at 12. In Belmont, according to Petitioner, "hearing request was so factually different for the hearing request at issue, that it deserves no further discussion." Id. As for the Midland Care case, Petitioner argues that the issue did not deal with a challenge of the CMP, but whether CMS had considered the petitioner's financial condition in determining the CMS amount. Id. I concur with CMS's argument and analysis of the regulation and caselaw. The regulations are explicit in the requirements that a request for hearing must address, with pecificity, precisely what issues are in dispute. See 42 C.F.R. § 498.40(b). Petitioner's hearing request states:
Petitioner Request for Hearing dated November 6, 2000, at 1 (emphasis in the original). The regulations grant, to a party, the right to challenge the amount of a CMP imposed. Expressly, 42 C.F.R. § 488.438(e) provides an ALJ with authority to review the amount of a CMP as it pertains to its reasonableness. In this instance, however, Petitioner did not raise an issue of the amount of the CMP even though it had a right to do so. I disagree with Petitioner's utter dismissal of the relevance of the Belmont decision. In fact, the Belmont decision is on point. In Belmont, the issue was whether the petitioner waived its right to challenge the reasonableness of the CMP amount by not including the same in its request for hearing. The petitioner, like in the case before me, attempted to argue that "[l]ogically, a challenge to the basis of the penalty presumes a challenge to the penaly itself." DAB CR507, at 14. The ALJ in Belmont was not convinced by the petitioner's argument. Likewise, I am not convinced by Petitioner's similar argument in the matter before me. The fact is that Petitioner did not raise a challenge to the reasonableness of the CMP amount in its hearing request. Therefore, the issue is deemed waived and not a matter before this tribunal.
For the reasons discussed above, I grant CMS's motion for summary judgment and deny Petitioner's cross-motion for summary judgment. I find that Petitioner was in violation of 42 C.F.R. § 483.25(h)(2). I further find that the CMP imposed of $100 per day is reasonable, and therefore uphold the total CMP amount of $9,700. |
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| JUDGE | |
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Richard J. Smith Administrative Law Judge |
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| FOOTNOTES | |
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