CASE | DECISION | JUDGE | FOOTNOTES

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


SUBJECT:

Residence at Kensinton Place,

Petitioner,

DATE: March 22, 2004
                                          
             - v -

 

Centers for Medicare & Medicaid Services.

 

Docket No.C-01-742
Decision No. CR1159
DECISION
...TO TOP

DECISION

Petitioner, Residence at Kensington Place (Petitioner or facility), is a long-term care facility certified to participate in the Medicare and Medicaid programs as a provider of services. Petitioner challenges the Centers for Medicare & Medicaid Services' (CMS's) determination that, from March 30, 2001 through April 23, 2001, it was not in substantial compliance with program participation requirements. For the reasons set forth below, I conclude that, for this period, the facility was not in substantial compliance with the quality of care requirement, 42 C.F.R. § 483.25(h)(2), and that CMS therefore had a basis for imposing a Civil Money Penalty (CMP). CMS correctly calculated the amount of the CMP. Petitioner raises no other challenges to the reasonableness of the amount of the CMP, $350 per day for 25 days (total $8,750).

I. Background

As a condition for participation in the Medicare and Medicaid programs, skilled nursing facilities (SNFs) (Medicare) and nursing facilities (NFs) (Medicaid) periodically undergo surveys to determine whether they are in substantial compliance with program requirements, and the Secretary of Health and Human Services contracts with state survey agencies to conduct those surveys. Social Security Act (Act), section 1864(a); 42 C.F.R. § 488.20. The regulations require that each facility be surveyed at least once every 12 months, and more often, if necessary, to ensure that identified deficiencies are corrected. 42 C.F.R. § 488.20(a).

In this case, on March 30, 2001, the Ohio Department of Health (State Agency) completed its standard survey and concluded that the facility was not in substantial compliance with federal requirements for nursing home participation in the Medicare and Medicaid programs. Among other deficiencies, the State Agency found that the facility did not meet requirements for quality of care, 42 C.F.R. § 483.25(h)(2). CMS Ex. 3 at 15. Specifically, the survey team cited problems with the facility's efforts to prevent accidents and serious injury to a resident who repeatedly fell, suffering two broken hips in rapid succession.

The State Agency advised CMS of its survey findings, and, by letter dated April 25, 2001, CMS told the facility that it agreed that the facility was not in substantial compliance and that the facility's most serious deficiencies constituted actual harm, but not immediate jeopardy. CMS also concurred with the State Agency recommendations to impose a DPNA (denial of payment for new admissions), effective June 30, 2001, and a CMP of $450 per day, effective March 30, 2001. The letter warned that if the facility did not achieve substantial compliance by September 30, 2001, its program participation would be terminated. CMS Ex. 1.

The State Agency conducted a follow-up survey on April 24, 2001, and, by letter dated June 13, 2001, CMS advised Petitioner that it had achieved substantial compliance as of April 24. As a result of the survey findings, and in consideration of the results of informal dispute resolution, the letter advised that neither the DPNA nor termination would be imposed. The $450 per day CMP was reduced to $350 per day and was effective from March 30, 2001 through April 23, 2001, discontinued as of April 24, 2001, the day the facility achieved substantial compliance. CMS Ex. 5. (1)

The facility timely appealed, and the case was assigned to me. The parties filed readiness reports, and, responding to my subsequent orders, briefed the issues and submitted proposed exhibits. Petitioner filed a Prehearing Brief (P. Brief). CMS filed a Brief in Response and Petitioner filed a Reply Brief. Petitioner submitted 12 exhibits (P. Exs. 1-12) and multiple declarations from witnesses. CMS submitted 37 exhibits (CMS Exs. 1-37).

CMS has now moved for summary judgment, arguing that no material facts are in dispute with respect to one very serious deficiency, which, by itself, justifies the penalty imposed. CMS Memorandum in Support of Summary Judgment (CMS MSJ Brief). Petitioner opposes, arguing, first, that the motion should be stricken because CMS has "failed to abide by the rules and orders of this tribunal . . . ." Second, Petitioner points to the declarations of two facility witnesses, and - without actually articulating what the facts might be - asserts that "once one examines the sworn statements . . . it is clear that numerous factual issues remain for hearing." P. Motion to Strike or Opposition to Motion for Summary Affirmance (P. Opp. Brief) at 2, 7.

In support of its motion, CMS also submitted the declarations of two State surveyors, Laura McClure (McClure Decl.) and Debra Bricker (Bricker Decl.). Petitioner relies on the declarations from three witnesses: facility administrator, Jennifer Strickland (Strickland Decl.; see P. Reply); Registered Nurse, Mindy Booth (Booth Decl.; see P. Reply); and, nurse consultant, Thomas J. Schindler (Schindler Decl.; see P. Opp. Brief). For purposes of this summary judgment ruling, I admit P. Exs. 1- 12, CMS Exs. 1- 37, and the McClure, Bricker, Strickland, Booth, and Schindler declarations.

II. Issues

I consider first whether summary judgment is appropriate.

On the merits, the issue before me is whether, from March 30, 2001 through April 23, 2001, the facility was in substantial compliance with program participation requirements, specifically, 42 C.F.R. § 483.25(h)(2) (Quality of Care). (2) The reasonableness of the amount of the CMP is not in question.

III. Statutory and Regulatory Background

The Act sets forth requirements for nursing facility participation in the Medicare and Medicaid programs and authorizes the Secretary of Health and Human Services to promulgate regulations implementing the statutory provisions. Act, sections 1819 and 1919. The Secretary's regulations governing nursing facility participation in the Medicare program are found at 42 C.F.R. Part 483.

Facilities must maintain substantial compliance with program requirements. To be in substantial compliance, a facility's deficiencies may pose no greater risk to resident health and safety than "the potential for causing minimal harm." 42 C.F.R. § 488.301. Under the statute and "quality of care" regulation, each resident must receive and the facility must provide the necessary care and services 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 facility must ensure that each resident receives adequate supervision and assistance devices to prevent accidents. 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 imposing a CMP. See Act, section 1819(h). CMS may impose a CMP for the number of days that the facility is not in substantial compliance with one or more program requirements or for each instance that a facility is not in substantial compliance. 42 C.F.R. § 488.430(a). In situations where the deficiencies do not constitute immediate jeopardy, but have caused actual harm or have the potential for more than minimal harm, CMS may impose a CMP in the lower range of $50 to $3,000 per day. CMS increases the per day penalty amount for any repeated deficiencies for which a lower level penalty was previously imposed. 42 C.F.R. § 488.438.

IV. Discussion

A. Summary disposition is appropriate because Petitioner has not demonstrated any dispute over genuine issues of material fact. (3)

Unless the parties raise a genuine issue of material fact, an administrative law judge (ALJ) may decide a case on summary judgment without an evidentiary hearing. Carrier Mills Nursing Home, DAB No. 1883 (2003); Livingston Care Center, DAB No. 1871 (2003); Crestview Parke Care Center, DAB No. 1836 (2002); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997); Carmel Convalescent Hospital, DAB No. 1584 at 27 (1996). To defeat a motion for summary judgment, the nonmoving party may not rely on the denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits and/or admissible discovery material, in support of its contention that a dispute exists. Crestview, DAB No. 1836 at 6 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986)).

In determining whether this case can be decided by summary judgment, I apply the standard articulated by the Departmental Appeals Board (Board) in Crestview, DAB No. 1836. I evaluate Petitioner's rationale for its alleged disputes of fact and its proffered evidence "to see if a genuine dispute of fact has been raised." If I conclude that such a dispute has been raised, for summary judgment purposes, I resolve that dispute in favor of the nonmoving party, "just as if it had been established by a preponderance of the evidence." Crestview at 8; see also, Carmel Convalescent, DAB No. 1584, at 22. (Where the petitioner had the opportunity to present its case with briefs and supporting documentation, but did not demonstrate a genuine dispute of material fact, the Board affirmed summary disposition) and Glenburn Home, DAB No. 1806 at 17 (2002) ("[I]n reviewing a case where an ALJ failed to either obtain a written waiver or hold an oral hearing, we may nonetheless uphold the decision if the affected party either had conceded all of the material facts or proffered testimonial evidence only on facts which, even if proved, clearly would not make any substantive difference in the result.").

Here, CMS lists what it characterizes as undisputed facts relating to the deficiency cited under Tag F324, and argues that those facts constitute substantial noncompliance. CMS MSJ; CMS MSJ Brief at 3-5. Petitioner does not specifically challenge any one of those facts but refers generally to its witness declarations in which facility witnesses describe the facility actions and opine that those actions were sufficient. Petitioner suggests that disputes of material fact are embedded in the declarations. I am troubled by Petitioner's unwillingness (or inability) to articulate a specific fact in dispute, particularly since CMS has provided a discrete list, and Petitioner could easily have identified from that list the assertions of fact with which it disagrees. A party opposing summary judgment is supposed to state in its opposition those material facts that it asserts are in dispute, and Petitioner's failure to do so suggests that it is not able to articulate a single dispute of material fact. See, e.g., Fed. R. Civ. P. 56; Livingston, DAB No. 1871 at 7 ("A hearing is not required if . . . the non-moving party . . . fails to dispute the material facts."). The judge is simply not responsible for developing either party's case. Nevertheless, I reviewed Petitioner's declarations and exhibits to determine whether they present a dispute of material fact.

As explained in detail below, to establish its account of the relevant facts, each party relies almost exclusively on its witnesses' review of facility records, rather than on any first-hand observations. See Booth Decl. at 1 ¶ 2; Schindler Decl. at 1 ¶¶ 3, 4 ("From my review of R17's records . . . ." "Having read the nurses notes . . . ."). The facility's documents describe the incidents about which CMS complains and the facility's responses to those incidents. The parties thus rely on a common set of documents and the facts derived from those documents. Only the conclusions drawn from those facts are in dispute. A dispute as to the conclusion to be drawn from facts does not preclude entry of summary disposition so long as the material facts are not in dispute. Livingston Care Center, DAB CR906 at 4-5, aff'd, DAB No. 1871; see also, Crestview, DAB No. 1836 at 8 (in which the Board affirmed the ALJ conclusion that whether undisputed facts amount to substantial noncompliance constitutes a conclusion of law rather than an allegation of fact); Big Bend v. Thompson, No. 03-50201 (5th Cir. Jan. 30, 2004).

Petitioner also objects to the timing of CMS's motion and argues that the motion violates my orders and suggests that CMS had earlier waived its right to seek summary judgment. In support of these claims, Petitioner points to the readiness report that CMS filed in response to the initial order in this case. CMS did not then indicate that it would seek summary judgment but instead said that "the parties believe that there is a need for testimonial evidence." P. Opp. Brief at 2. In Petitioner's view, this statement "would not suggest that the facts are settled and that a hearing is not required." I find no merit in Petitioner's contention.

First, both parties subsequently presented testimonial evidence in the form of witness declarations, so CMS's readiness report is, in fact, consistent with its declaration that this case may now appropriately be decided on summary judgment.

Second, and more significant, even an unambiguous declaration of the need for an in-person hearing would not preclude a party from later seeking summary judgment when it determines that no material facts are in dispute. And no one should find it surprising that a party first recognizes the appropriateness of summary judgment after a matter has been fully briefed, the evidence submitted, and the issues narrowed. Here, for example, when CMS filed its readiness report, this record was limited to little more than Petitioner's very broad hearing request. I subsequently issued orders directing the parties to file briefs and to submit their proposed exhibits and the names of their witnesses. The orders warned that "[s]hould a party fail to include an issue or fact in its brief, then the party will not be permitted to bring it up later at the hearing absent a showing of compelling good cause," (Sept. 7, 2001 Order, emphasis in original) and reminded the parties that, at the close of the briefing, they would have an opportunity for an in-person hearing "if the submissions establish that any material facts are in dispute." Oct. 4. 2001 Order at 1. The evidence has now been submitted and the arguments have been made. I find it completely reasonable for a party to determine at this point in the proceedings that summary judgment is appropriate.

I note also that, notwithstanding whether either party moves for summary judgment, I may, on my own, review the record and determine that it presents no dispute of material fact that would require an in-person hearing.

Nor am I persuaded that CMS's motion and accompanying declarations came too late. Petitioner has not demonstrated that it was prejudiced in any way by the timing of the motion, inasmuch as it had the opportunity to respond and to submit a counter-declaration. I recognize that a motion for summary judgment might be denied, based solely on its timing, if filed too near the scheduled date of the hearing. But if, as here, the motion is filed sufficiently in advance to allow for a response, and, if, after the motion has been fully briefed, its merits are evident, no purpose is served by requiring an in-person hearing solely because of the timing of the submission.

The Federal Rules do not directly apply to these administrative proceedings, but the rationale underlying those rules is sound, and they offer guidance as to what is reasonable. Under the Federal Rules, a party may move for summary judgment "at any time after the expiration of 20 days from the commencement of the action," and the motion should be served "at least 10 days before the time fixed for the hearing." Fed. R. Civ. P. 56. Here, CMS's motion, dated December 22, 2003, was served on Petitioner by overnight mail, approximately seven weeks prior to the February 9, 2004 "time fixed for hearing," well within the time frames set by less flexible court procedures. With respect to CMS's declarations, about which Petitioner also complains, I note that my order invited the parties to submit declarations with their prehearing submissions, but did not require them. Sept. 7, 2001 Order. Under Rule 56, the moving party may accompany its motion with supporting declarations, although they are not required. Fed. R. Civ. P. 56(a) and (b). (4)

Due process does not demand an in-person hearing that serves no purpose. At a minimum, the nonmoving party must articulate some reason for holding the in-person hearing, i.e., a material fact in dispute. Here, Petitioner was afforded the opportunity to do so through argument and supporting documentation. However, review of the parties' submissions does not establish any material fact in dispute to justify convening an in-person hearing. Summary judgment is therefore appropriate.

B. From March 30, 2001 through April 23, 2001, the facility was not in substantial compliance with program participation requirements, specifically 42 C.F.R. § 483.25(h)(2)(Quality of Care).

The quality of care regulation, 42 C.F.R. § 483.25, imposes on facilities an affirmative duty designed to achieve favorable outcomes "to the highest practicable degree." Windsor Health Care Center, DAB No. 1902 at 16-17 (2003); Woodstock Care Center, DAB No. 1726 at 25-30 (2000). Among other requirements, the facility must ensure that its supervision is adequate to prevent accidents. This requirement does not amount to strict liability or require absolute success in an obviously difficult task. Using an outcome-oriented approach, facilities have the flexibility to use a variety of methods, but they are responsible for achieving the required results. In ensuring adequate supervision, the facility is not required to do the impossible or be a guarantor against unforeseeable occurrence, but it is required to "take reasonable steps to ensure that a resident receives supervision and assistance devices designed to meet his or her assessed needs and to mitigate foreseeable risks of harm from accidents." Windsor, DAB No. 1902 at 5; Asbury Center at Johnson City, DAB No. 1815, at 12 (2002); Koester, DAB No. 1750 at 25-26; Woodstock, DAB No. 1726 at 25; 42 C.F.R. § 483.25(h) .

The following facts are not in dispute: R17 was admitted to the facility on January 19, 2001, just a few days before he turned 54 years old. P. Ex. 10; Booth Decl. at 1 ¶ 3. He was mentally retarded and suffered from seizure disorder. Among his other problems, the facility listed insomnia at night, repetitive physical movement, and resistence to care. P. Ex. 10 at 4. He required "extensive to total" assistance with most activities of daily living and mobility. P. Ex. 10 at 2. He used both a wheel chair and a mobile recliner (geriatric chair or geri-chair) to move about the facility. P. Ex. 10 at 2, 7; CMS Ex. 23 at 11. The facility identified him as at risk for falls based on his history of falls, his decreased neuromuscular function, decreased cognition, and the psychoactive medication he took for anxiety. P. Ex. 10 at 7; CMS Exs. 22 at 12; 23, at 9, 11. At the time of his admission, he used full side rails on both sides of his bed, and a lap buddy when up in his wheel chair. CMS Ex. 23 at 11. The facility also applied a "restraint-free alarm/tab unit" to his bed. Booth Decl. at 1 ¶ 3; CMS Ex. 23 at 13.

CMS acknowledges that the facility accurately identified R17 as at serious risk for falls, and that it implemented some interventions to prevent such accidents and injury. CMS argues, however, that the facility nevertheless violated 42 C.F.R. § 483.25(h) because the interventions it relied on were not reasonably calculated to prevent accidents, and, even though they soon proved ineffective, the facility continued to use them rather than to implement new, more effective approaches. CMS also complains that some interventions - particularly the facility's use of tab alarms and one-on-one supervision - were not implemented when necessary. CMS MSJ Brief at 11. In CMS's view, the ineffectiveness of the facility interventions, particularly its reliance on side rails, was apparent within R17's first 10 days at the facility, yet the facility did not change that approach until after he suffered a serious accident and broken hip. Even then, the facility did not provide adequate supervision and assistance devices and R17 suffered a second serious accident and a second broken hip.

The record supports CMS's view.

January 20-21, 2001: From the time of his admission, the record establishes that R17 was not happy to be at the facility. He displayed persistent anger related to his long-term-care placement and presented significant behavioral problems. The nursing notes describe him as "restless" and "anxious." At 9:30 p.m. on January 20, the day after his admission, he was observed deliberately gagging himself and throwing up. P. Ex. 10 at 15.

At 2:00 a.m. the following morning, January 21, staff describe him as "restless," and "anxious," and "climbing out of bed." Although the nurse's note itself is ambiguous, according to RN Booth, he was not successful in these attempts, and, for purposes of this motion, I accept RN Booth's factual assertion. Booth Decl. at 1-2 ¶ 3. Staff subsequently assisted him into a chair and took him to the nurses' station, where he remained restless, trying to get out of the chair, wanting to go to the hospital, and asking for his mother. Staff gave him Ativan, and he calmed down, and staff put him to bed at 3:00 a.m. P. Ex. 10 at 15; CMS Ex. 23 at 29; Booth Decl. at 1 - 2 ¶ 3.

Later that day, at 11:30 a.m., he was up in a chair in the hallway "continuously" standing up and asking to use the phone. Staff asked him to sit down "several times," but he refused. At his insistence, staff called his sister, but no one answered. R17 continued to yell, demanding to use the phone. He took his medications from the nurse, put them into his mouth, spit them out, and "threw them across the nurses station." P. Ex. 10 at 15-16; CMS Ex. 23 at 29-30.

According to the nurses' notes, at 8:30 p.m. R17 was wrapped in a blanket and lying on the floor. How he got into that position is not explained, but he would not cooperate with staff efforts to get him up, saying that he wanted to sleep on the floor. Staff told him that the floor was too hard and cold, and that he needed to get into his bed or his chair. He eventually acquiesced, but at 9:30 p.m. he was again climbing out of his bed. Staff then put him into his mobile chair and took him out to the nurses station. They gave him more Ativan. P. Ex. 10 at 16; CMS Ex. 23 at 30.

January 22, 2001: Describing him as "calm," staff put R17 to bed at 12:30 a.m. on January 22. At 2:30 a.m., however, he used his urinal and then threw it across the room. He complained of left leg pain and was given Tylenol. P. Ex. 10 at 16; CMS Ex. 23 at 30. At 3:00 a.m. he "crawled out of [the] end of [his] bed and crawled to the door of his room." His full side rails were up and his call light was within reach but he did not use it. He said that he was trying to get to the staff. Staff explained the importance of the call light, and put him in his geri-chair at the nurses station for one-on-one observation. P. Ex. 10 at 16; CMS Ex. 23 at 30; Booth Decl. at 2 ¶ 3. He must have been returned to bed sometime thereafter, because at 5:30 a.m., he was "found out of bed again on [the] floor [with] side rails up." He had a small skin tear on his elbow. He told staff that he had been trying to retrieve his remote control, which he had dropped, and that he had crawled over the foot of the bed. Staff again told him to use his call light for help and not to get up alone. They put a fall mat next to his bed. P. Ex. 10 at 16-17; CMS Ex. 23 at 30-31; Booth Decl. at 2 ¶ 3. At 10:15 that morning he was agitated, wanting his mother and sisters, and trying again to climb out of bed. The nurse gave him more Ativan with "effective" result, and nurses' notes subsequently describe him as "sleeping peacefully." P. Ex. 10 at 17; CMS Ex. 23 at 31; Booth Decl. at 2 ¶ 3. (5)

Orders dated January 22, 2001 call for "full side rails x2" to enable the resident to identify bed boundaries due to his sporadic movements secondary to his seizure disorder. A second order calls for a lap buddy when up in his wheel chair due to his decreased awareness of his physical abilities secondary to his mental retardation. CMS Ex. 23 at 95. According to RN Booth, the lap buddy could not be used when R17 was in his mobile recliner "as the manufacturer's recommendations prevent that combination from being used." Booth Decl. at 2 ¶ 3.

January 23, 2001: A nurse's note, written at 10:30 a.m. on January 23, mentions increased anxiety and "PRN given," although the note does not identify the medication given (presumably Ativan). P. Ex. 10 at 17; CMS Ex. 23 at 31. At 11:00 a.m., R17 moved his feet, arms, and legs freely without complaints of pain. P. Ex. 10 at 17; CMS Ex. 23 at 31. At 4:45 p.m., his right arm was x-rayed, apparently to be sure that it had not been seriously injured when he sustained the skin tear after climbing out of bed the previous morning. P. Ex. 10 at 17; CMS Ex. 23 at 31. Thereafter, he climbed out of bed again, and staff put him into his geri-chair. He was upset, asking for his family, and saying that he wanted to leave. "1:1 ineffective. PRN Ativan ineffective." P. Ex. 10 at 17; CMS Ex. 23 at 31; Booth Decl. at 2 ¶ 3.

January 24, 2001: The nurses' notes indicate that at 6:00 a.m. on January 24, R17 refused to go to bed and climbed out of bed twice. He was assisted into a geri-chair but then attempted to climb out of the chair. "PRN meds, routine meds noneffective." He was unable to relax; his anxiety increased. One-on-one supervision was needed. CMS Ex. 23 at 32. At 10:00 a.m. he is described as disoriented to time and place. He continued to try to climb out of bed and out of his mobile recliner. One-on-one supervision was given. His appetite was poor and he drank fluids with difficulty. CMS Ex. 23 at 32.

At 10:00 p.m. he climbed out of bed again. Staff put him into his geri-chair and gave him Ativan, which was ineffective. He was then taken to the nurses station for one-on-one supervision. CMS Ex. 23 at 32. According to RN Booth, one-on-one supervision was needed throughout the night to assure his safety. Booth Decl. at 2 ¶ 3.

January 25, 2001: R17's behaviors continued the following morning. According to the nurse's notes, at 9:00 a.m., he was disoriented to time and place, and he continued to climb out of his chair, and to remove his lap buddy. CMS Ex. 23 at 32. Although he was in the hallway for observation, he wheeled himself back into his room, took off his lap belt, and, attempting to get up by himself, he fell. At 11:45 a.m., a housekeeper found him on the floor next to his bed, his left leg under his right leg. The wheel chair was beside him and the lap belt was on the floor beside the wheel chair. CMS Ex. 23 at 53, 79.

The facility offers no explanation for this incident. Its witnesses' declarations are conspicuously silent on the issue. (6) Facility staff had plainly recognized an immediate and heightened risk for accident and injury. R17 was agitated. He was disoriented, had demonstrated his ability and willingness to remove his lap buddy, and had "continued to climb out of his chair." Recognizing the risk, staff put him in the hallway "for observation," yet they did not adequately observe him, and he managed to return himself to his room. Even this early in his stay, that he would attempt to get out of his chair, and that doing so placed him at risk for accident and injury was plainly foreseeable. Yet, nothing suggests that nursing staff were even aware of his movements between 9 a.m. and 11:45 a.m. They only learned of his movements by happenstance, when a housekeeper, who was presumably not responsible for monitoring him, found him on the floor.

A document titled "Initial Post Fall Assessment" describes R17's aggressive verbal outbursts and agitation, noting his anger about the nursing home placement and his desire to go home. CMS Ex. 23 at 54. Cited as "factors related to this fall" were his cognitive status/confusion, orthopedic problems, that he was a new admission, and his judgment. CMS Ex. 23 at 55. Interventions "to prevent future falls" include restraints, monitoring devices, ongoing monitoring of the resident's status, medication adjustments, and a psychiatric evaluation. Specifically, the facility planned to continue using the lap belt, securing it tightly in the back of the chair, so that he would not be able to remove it. It also planned to use a pressure sensitive alarm to alert staff of his intentions to get up by himself and to continue using a mat on the floor beside his bed. The facility decided that the lap buddy was ineffective and discontinued its use. CMS Ex. 23 at 56, 96; Booth Decl. at 2 ¶ 4.

A document titled "Plan of Care for Physical Restraint/Enabler," with an initiation date of January 25, describes R17's problems as decreased awareness of bed boundaries/spastic movement, poor positioning at times due to weakness, and decreased awareness of physical abilities. It lists devices ordered as of January 25 as "full side rails x2," mobile recliner with lap belt, and a lap belt. P. Ex. 10 at 8.

According to RN Booth, on the night of January 25, R17 again received one-on-one supervision "to assure his safety." Booth Decl. at 2 ¶ 3.

January 28, 2001: R17 apparently learned to use his call light, because 10:00 a.m. and 3:00 p.m. entries in the January 28 nurses' notes indicate that he was putting his call light on "constantly," wanting staff to call his sister and his mother. A 3:00 p.m. entry indicates that his family was called, said they would be in for a visit, and he calmed down for a while. However, when the nurse subsequently answered his light, he was "very agitated" and pulling off his alarm bracelet. "PRN medication" was given. CMS Ex. 23 at 33.

At 6:30 p.m. staff answered his call light and discovered that he had pulled off his Wanderguard bracelet. He was very agitated and wanted to call his mother. He was taken to the nurses' station where he talked to his mother. P. Ex. 10 at 20; CMS Ex. 23 at 36.

January 29, 2001: Another Wanderguard bracelet was put on R17's left wrist. But at 3:00 a.m. on the morning of January 29, he was standing in his bedroom, having climbed over the bed rail. Staff put him in a geri-chair and gave him Ativan. P. Ex. 10 at 20; CMS Ex. 23 at 36. At 5:00 a.m. staff put him back to bed and he slept without problems for the rest of the morning. P. Ex. 10 at 20; Booth Decl. at 2 ¶ 5. In an addendum note, dated February 6, RN Booth writes that on January 29, the resident refused to wear the tabs unit, chair alarm, or Wanderguard, taking it off and throwing it across the room. P. Ex. 10 at 42; CMS Ex. 23 at 76.

January 30, 2001: During the early morning hours of January 30, R17 continuously rang his call light, demanding x-rated materials. CMS Ex. 23 at 37. At 1:00 a.m., a housekeeper called the nurse into his room because he was using a butter knife in an attempt to remove his Wanderguard bracelet from his wrist. Staff removed the bracelet and placed it on his ankle. CMS Ex. 23 at 37. But at 1:30 that afternoon he refused placement of the Wanderguard on his ankle, attempted to kick the nurse, and began yelling and screaming. CMS Ex. 23 at 37. RN Booth writes that at 1:30 p.m., he "began to throw chair alarm down the hall; took chair pad off [and] threw it on the floor [and] took off lap belt and threw it down." At 2:00 p.m., RN Booth attempted to put the Wanderguard on his wheelchair, but he immediately pulled it off. At 2:30 p.m., she again placed it on his wheelchair, but he pulled it off and threw it across the room. At 3:30 p.m. he was given Ativan with "good effects."

Dr. Braumiller evaluated the resident and issued a new order for mood stabilizers and an anti-depressant. P. Ex. 10 at 42; CMS Ex. 23 at 57, 76. Dr. Murphy wrote an order for Restoril at bedtime for insomnia. P. Ex. 10 at 19, 21.

In the meantime, the facility developed R17's care plan. Dated January 30, 2001, it lists 23 approaches for preventing falls; nine of them have been typed in, and the remaining written in, suggesting that the approaches evolved over time. P. Ex. 10 at 7; CMS Ex. 22 at 12. They include maintaining his bed in the lowest position, knowing that he uses a wheelchair and/or mobile recliner for locomotion, "full side rails X2 to enable him to identify bed boundaries," a lap belt on his wheelchair, a pressure sensitive chair alarm on his wheel chair, a "tabs unit while in bed," a mat beside his bed, a low bed with a mattress beside it, pressure sensitive bed alarm, tabs unit when up in his mobile recliner, a lap belt on his mobile recliner, taking the resident to common areas for observation while in his mobile recliner, providing a "pummil cushion [with] dycem beneath cushion," scoop mattress on his bed, bed against the wall with wedges under the sheet. P. Ex. 10 at 7.

On its face, the plan is ambiguous as to when and under what circumstances a particular approach was implemented. However, no evidence suggests that the approaches were all in place when the plan was developed. To the contrary, witness' declarations and other portions of his treatment record help to establish a time line for the facility's implementation of many of these interventions, as well as for the numerous incidents that prompted them.

February 1, 2001: The facility records are not wholly consistent as to the precise time, but sometime between 5:00 and 5:15 a.m. on February 1, R17 climbed out of his bed and "was found" on the floor, having suffered an elbow laceration. His call bell was within reach, and full padded side rails were up on both sides. P. Ex. 10 at 7, 8, 18; CMS Ex. 23 at 58, 82; Booth Decl. at 2-3 ¶ 5. A follow-up report refers to this incident as a "repeat fall." CMS Ex. 23 at 57. According to RN Booth, staff then put him in a recliner chair and took him to the nurses' station. They put his bed on the floor and discontinued the side rails. Booth Decl. at 2-3 ¶ 5; P. Ex. 10 at 7, 8, 18, 19, 21; CMS Ex. 23 at 59, 82. An addendum written by RN Booth on February 6 adds that a Wanderguard was taped beneath the seat of his wheel chair. P. Ex. 10 at 42; CMS Ex. 23 at 76.

R17 was later sent to the emergency room for the laceration on his elbow and was admitted to the hospital with a fractured hip. P. Ex. 10 at 21, 42; CMS Ex. 23 at 60, 76. (7)

I agree with CMS that this accident was foreseeable, and that the facility failed to take sufficient steps to protect R17. From the time of his admission, staff regularly put him into bed with full side rails up. CMS reckons that R17 either attempted or succeeded in climbing over his side rails on 11 separate occasions over the 10 days immediately following his admission, January 19-29, 2001. CMS MSJ at 2; CMS MSJ Brief at 3. Petitioner does not exactly challenge these numbers, but, in his declaration, Nurse Consultant Schindler, points out that, for some of these incidents (January 24 at 6:00 a.m., January 24 at 10:00 a.m., and January 24 at 10:00 p.m.), staff "observed R17 attempting to climb out of bed" and assisted him to his geri-chair, with no negative outcome, no injury, and no fall. Schindler Decl. at 4 ¶ 4(k). No one disputes this assertion. These are examples of R17's conduct that should have alerted the facility that, left unsupervised in his bed, R17 would eventually attempt to climb out of it.

Nurse Consultant Schindler also concludes that "[R17] had never fallen in these dates while residing in the facility." Schindler Decl. at 5 ¶ 5. By this, he seems to be claiming that R17 did not experience a single fall between January 19 and January 29, 2001. Consultant Schindler also asserts that R17 "never climbed over the side rails," (8) and "did not attempt to get out of his bed every day." Schindler Decl. at 5 ¶ 5. Whether or not R17 actually "fell," the uncontroverted record establishes that on at least four occasions between January 19 and 29, he started out in a bed or recliner and ended up lying on the floor (January 21 at 8:30 p.m., January 22 at 3:00 a.m., January 22 at 5:30 p.m., and January 25 at 11:45 a.m.). On numerous other occasions, he unsuccessfully attempted to climb out of his bed or recliner. He may not have attempted to climb out of bed every day, but he attempted to climb out of bed on many days - January 21, 22, 23, 24, and 29 - and he successfully climbed out of his mobile recliner on January 25. Whether he attempted to climb over the rails, went out the foot of his bed, or got out by some other maneuver, such efforts put him at risk for falls and injury, which the facility well knew.

On February 1, R17 started out in bed with side rails up and a call bell within reach. He may also have had a tabs unit in place, although the treatment notes do not mention one. In her declaration, RN Booth does not say that one was in place at the time. Booth Decl. at 2 ¶ 5. Her post-fall assessment update lists the appliances that R17 was using at the time - full side rails, wheel chair lap belt, chair alarm - but a bed alarm is not listed. CMS Ex. 23 at 58. Only Consultant Schindler, who was not employed at the facility, and who offers no support for his claim, asserts that bed alarms were in place on February 1. Schindler Decl. at 5 ¶ 6. According to Consultant Schindler, I should assume, based on the nurse's failure to document, that an alarm was in place and that the alarm went off appropriately. I do not find this a particularly reasonable interpretation. However, accepting that pressure sensitive bed alarms were in place and functioning properly does not help Petitioner's case, since it means that staff did not satisfactorily respond to the sounding alarm. Either they did not hear it, or they heard it but did not respond quickly enough to what they should have viewed as an emergency, or they responded as quickly as possible, but were not able to get to his room in time to prevent the accident. Under any of these scenarios, the response fell short of what was reasonable to prevent an accident. (9)

If a facility chooses an intervention that does not work, it must respond by attempting to find one that will work. Woodstock, DAB No. 1726 at 28, 30. Here, the facility responded with essentially the same ineffective interventions, and achieved essentially the same poor results.

February 3, 2001: R17 returned from the hospital on the afternoon of February 3. Notwithstanding the facility's earlier decisions to put his bed on the floor and to discontinue his side rails, because of his fractured hip, staff put him into a regular bed with full side rails up. P. Ex. 10 at 42; CMS Ex. 23 at 60, 76. Although none of the treatment records - including an addendum note that she herself wrote - mention a bed alarm in place, RN Booth now declares that R17 was placed in a regular bed "with side rails and a bed alarm." Booth Decl. at 3 ¶ 6; but see P. Ex. 10 at 42; CMS Ex. 23 at 60, 76. This presents a real factual dispute, and, for purposes of this ruling, I accept that the bed alarm was in place. Again, that fact does not help Petitioner's case. Assuming the alarm worked, staff did not respond quickly enough, because R17, even with a broken hip, managed to crawl out of the end of the bed before anyone responded. At 9:30 p.m. he "was found" uninjured, on a mat on the floor.

According to one note, staff then put R17 back to bed with the bed alarm in place. CMS Ex. 23 at 38. As staff left the room, the alarm went off and the nurse saw the alarm "fall from [the] bed." The resident insisted that he did not kick the alarm off the bed. CMS Ex. 23 at 38. A 9:45 p.m. note then says that the resident was very angry that he isn't allowed to use the phone, and he tore the bed alarm apart. Another alarm was put on his bed, and he tore that one up. A personal alarm was then put on and "routine and PRN" medications were given. CMS Ex. 23 at 38; Booth Decl. at 3 ¶ 6. An addendum note, written February 6, says that his mattress was placed on the floor and against the wall with a mat beside it. P. Ex. 10 at 42; CMS Ex. 23 at 76.

February 4, 2001: At 2:00 a.m. the following morning, R17 woke and was very agitated. He complained of pain and asked for a pain pill. The nurse crushed "DCN" and Ativan into applesauce, which he spit at her and then at her supervisor. At 5:00 a.m. she successfully gave him his medications. He was "restless," but the personal alarm was intact. CMS Ex. 23 at 39.

February 5, 2001: After several unsuccessful attempts, early in the morning of February 5, R17 again climbed out the foot of his bed with two side rails up and "was found lying on the floor beside the bed on the mat that was on the floor." He was apparently uninjured. Staff put him in his mobile recliner and took him to the nurses' station for closer supervision. P. Ex. 10 at 23, 24; CMS Ex. 23 at 61, 83.

Again, R17 appears to have been left in his room, without supervision, even though he had unsuccessfully attempted to climb out of his bed. Luckily, he was not injured, but the behavior was dangerous, and the facility efforts to prevent it were inadequate. He was moved to a north secured unit for better observation of his behaviors. P. Ex. 10 at 25, 42; CMS Ex. 23 at 62, 76. An order dated February 5, 2001, discontinues the full side rails. P. Ex. 10 at 22. The order also says that he may be up in a mobile recliner. P. Ex. 10 at 22; CMS Ex. 23 at 98. According to his care plan, the lap belt on his wheelchair was also discontinued on February 5. P. Ex. 10 at 7, 8.

Follow-up notes describe R17's ongoing complaints about the tabs unit. An 8:45 p.m. note says that the tabs unit was in place but that he "takes off per self." Staff reminded him to leave it alone. CMS Ex. 23 at 86. A 10:00 p.m. nursing note describes him as cussing and screaming out names. He is given Ativan. CMS Ex. 23 at 40.

February 6-11, 2001: Between February 5 and 12, the resident "was without any attempts to climb out of the bed." Booth Decl. at 3 ¶ 6. That one week passed without a serious incident or injury does not establish the facility's ongoing compliance. In Woodstock, Petitioner argued that its interventions worked because "weeks passed" without incident. The Board correctly rejected such reasoning, and held:

[T]hat dangerous episodes did not occur daily or even that the Woodstock staff may have been providing supervision that was effective at times does not counteract the clear evidence in the record as a whole that serious and recurring problems existed before and after periods in which there were no negative outcomes.

Woodstock, DAB No. 1726 at 15.

February 12, 2001: On February 12, 2001, at 7:45 a.m. R17 was "found . . . sitting on the floor beside mobile recliner stating that he had 'wanted to stand up.'" He did not complain of pain, and initially showed no signs or symptoms of any injury. He was assisted back into the mobile recliner and put in front of the nurses station. P. Ex. 10 at 27, 29; CMS Ex. 23 at 64, 84; Booth Decl. at 3 ¶ 6. Staff also attempted to place a tray table on the mobile recliner to remind him to ask for assistance, but the tray did not fit properly so his knees rubbed against it; he then removed the tray and threw it on the floor. "Will continue use of tabs unit at this time." P. Ex. 10 at 30, 42; CMS Ex. 23 at 65, 76. Thereafter, R17's left foot and ankle became "very edematous" and the foot was flaccid. The resident complained of pain with movement, his foot and ankle were x-rayed, but the x-rays showed no sign of a fracture or dislocation. P. Ex. 10 at 31-33. In a postfall assessment, the facility listed as "interventions to be tried to prevent future falls:" monitoring devices, ongoing monitoring of resident status, judgment training, and encourage activities. P. Ex. 10 at 30; CMS Ex. 23 at 65; Booth Decl. at 3 ¶ 6. (10)

Suggesting that the February 12 accident was not foreseeable, Consultant Schindler claims, "I am not aware of any evidence or records which suggest, let alone establish, that until February 12, 2001, R. 17 was even at risk of potential injury while in his mobile recliner." Schindler Decl. at 6 ¶ 8. But R17's care plan plainly recognizes that R17's behavior put him at risk of injury while in his mobile recliner. P. Ex. 10 at 7. And even if I agreed (which I do not) that the facility could not have foreseen any risk based on R17's multiple efforts to climb out of bed, Consultant Schindler has overlooked the earlier incidents involving R17's mobile chair. At 6:00 a.m. on January 24, staff put him in a geri-chair, but he attempted to climb out of the chair. CMS Ex. 23 at 32. Hours later, he continued to climb out of his mobile recliner. Id. The following morning, he continued to climb out of his chair and to remove his lap buddy. Id. According to facility records, on that occasion, he subsequently took off his lap belt, and, attempting to get up by himself, fell. Id. at 53, 79. (11)

February 19, 2001: At 2:30 a.m. on February 19, R17, who had been in his mobile recliner with the call light in place, "was found" on the floor on his buttocks in front of the recliner, apparently having "slid out of [the] chair." P. Ex. 10 at 34; CMS Ex. 23 at 87. He apparently refused to sleep in his bed, preferring the recliner chair, and he slid out of his chair when trying to fix pillows under his feet. P. Ex. 10 at 36; CMS Ex. 23 at 67. The RN wrote that "pressure sensitive alarm placed on chair and [minutes] later ripped alarm off [and] threw it in hall." P. Ex. 10 at 34; CMS Ex. 23 at 87.

He complained of left leg pain later that day, was given Darvocet, and was sent to the orthopedist. CMS Ex. 23 at 88; Booth Decl. at 3 ¶ 7. The resident psychiatrist was called who issued new orders for treatment. Booth Decl. at 3 ¶ 7.

February 20 , 2001: A note written at 2:30 p.m., February 20, says that he continues climbing out of his chair, stating "I'm going home." One-on-one given with little success. CMS Ex. 23 at 88.

February 21-22, 2001: At 1:15 p.m. on February 21, the resident got up out of his recliner chair and "was found" on the floor of his room, lying on his right side beside his mobile recliner. He was put back in his low bed with a mattress pad on the floor beside it. P. Ex. 10 at 36; CMS Ex. 23 at 67, 89. A postfall assessment update dated February 22, 2001, discusses the repeat falls that occurred on February 19 and February 21, 2001. The assessment also notes deep vein thrombosis in his left leg, increased behavioral outbursts, and increased agitation. P. Ex. 10 at 36; CMS Ex. 23 at 67. Under interventions to be tried, "medication changes/further observation" and "lab value monitoring" are circled. His Depakote levels were checked and his Ativan increased. His physician also ordered x-rays of his right hip and leg due to complaints of pain. P. Ex. 10 at 37; CMS Ex. 23 at 68.

R17 was admitted to the hospital with a right hip fracture on the evening of February 22. P. Ex. 10 at 39, 40; CMS Ex. 23 at 44.

February 26, 2001: R17 was readmitted to the facility on February 26. He is again described as uncooperative with staff. They put him in a low bed. Staff reported his screaming and other inappropriate behaviors through the afternoon and evening, and into the following day. CMS Ex. 23 at 45-46.

March 6, 2001: A 9:00 p.m. March 6 nurse's note states that R17 continues to have hiccups, which appear to be a chronic problem. He is described as "agitated" with another resident for purportedly closing his door. He would not be redirected, and was given Ativan for anxiety and Restoril for insomnia. A 10:00 p.m. note describes him as "crying out," and says that he threw his urinal against the door. The nurse gave him PRN "DCN." CMS Ex. 23 at 48. In an addendum prepared March 28, RN Booth writes that on March 6 the resident threw the pressure sensitive alarm monitor across the room, breaking it. A new monitor with pad was put on his bed, and he was given one-on-one supervision. He said "get me out of this Hell Hole, I want to go home." He was taken to the nursing station and given a phone so he could call his mother. P. Ex. 10 at 43; CMS Ex. 23 at 77.

March 7, 2001: At 6:00 a.m. on March 7, the resident "was found" lying on his left side on the floor of his room, beside his mobile recliner. The CNA had checked on him 10 minutes before the incident and his call light was within reach. The staff responded by putting him back in bed with the call light within reach. CMS Ex. 23 at 70, 91. A March 8 update describes the fall, reiterates R17's continuous behavior problems, and lists interventions: a lap belt on the mobile recliner and a high back reclining wheel chair, more appropriate for his positioning. CMS Ex. 23 at 70-71. An order dated March 8, calls for a lap belt on his mobile recliner. Thorazine was also ordered for his hiccups. CMS Ex. 23 at 48.

March 14, 2001: A nursing note dated March 14 at 9:25 a.m. says the resident continues to yell out at the staff, demanding to use the phone at five minute intervals. He pulls himself into the hall in his geri-chair. P. Ex. 10 at 46; CMS Ex. 23 at 50.

March 15, 2001: On the night of March 15, R17 again refused to sleep in his bed and was sleeping in his recliner with a soft waist restraint. His bedside table and call light were next to him. At about 6:00 a.m., he called out for assistance and the nurse "was called" to his room. He was lying on the floor on his side, saying "I'm going home." The recliner chair was in an upright position with the lap belt intact. He denied injury. They assisted him into his low bed and put a mat next to his bed. P. Ex. 10 at 12, 46, 48; CMS Ex. 23 at 50, 93.

To prevent future falls, the facility's plan called for "ongoing monitoring of resident status." CMS Ex. 23 at 74. The report also indicates that "therapy" is arranging for him to have his own wheelchair, and that he "will be brought out into common areas for closer observation while in his mobile recliner chair." P. Ex. 10 at 12-13; CMS Ex. 23 at 73-74. In a March 28 addendum, RN Booth writes that at 5:00 p.m. on March 15, the resident "has thrown tabs unit and pressure sensitive chair alarms of chair continuously," causing increased behavioral problems and that the facility "will discontinue the pressure sensitive chair alarms at this time due to their ineffectiveness." P. Ex. 10 at 43; CMS Ex. 23 at 77.

March 16-27, 2001: A series of nurses' notes, written between March 16 and 24, 2001, describe an agitated resident, complaining of hip pain, yelling and cursing at staff and other residents. He would throw things, and, on one occasion, urinated on the floor. Staff kept him in his recliner, sometimes monitoring him at the nurses' station, and liberally administered Ativan. (12) Less often, staff gave him Vicodin for pain. P. Ex. 10 at 49-52, 54; CMS Ex. 23 at 51, 52.

March 28, 2001: At the time of the survey, the facility began to implement some additional changes. RN Booth reported that the resident complained that he was not comfortable in the low bed and wanted a higher bed. The facility gave him a slightly higher bed with a scoop mattress, positioned it against the wall, with wedges on the open sides of the bed to enable him to identify bed boundaries. The facility planned to continue using a pressure sensitive bed alarm "to alert staff of his intentions of getting [up] by self," and to put a floor mat beside his bed "to [decrease] impact of floor." RN Booth also reported that the resident was pleased with his new bed. At the same time, he was assessed for positioning in his mobile recliner, the lap belt on it was discontinued, the facility put a pummil cushion with dycem beneath the cushion on the chair to decrease his risk of sliding. A soft head support was added to the chair to properly position his neck and to decrease his leaning. The resident said that the cushion with head support "feels good." The note also indicates that he had been evaluated for a new wheelchair. P. Ex. 10 at 8, 44, 55; CMS Ex. 23 at 105.

Subsequent addenda from RN Booth, dated March 28, 29, and 31 indicate that R 17 was happy with the new arrangement and had not attempted to get up by himself. P. Ex. 10 at 45.

Based on this evidence, I conclude 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 needed to protect him from accidents. Windsor, DAB No. 1902 at 5; Woodstock, DAB No. 1726 at 25. I agree that the facility implemented some approaches to prevent accidents, but the uncontroverted evidence establishes that the level of supervision and assistance devices the facility provided was unreasonably insufficient to mitigate the foreseeable risk.

In reaching this conclusion, I have accepted the factual allegations contained in RN Booth's declaration. I note that her characterization of the facility approaches as "aggressive interventions" and her conclusion that "there was adequate supervision" are not statements of fact. They are conclusions which I need not and do not accept. Booth Decl. at 3-4 ¶ 8.

For her part, Administrator Strickland has little to offer with respect to this deficiency, except the general statement that staff was "aware" and that R17's "concerns and issues were specifically discussed" during "huddle meetings," which were meetings of administrative staff and department heads held at the beginning of each week-day. Strickland Decl. at 2. I accept that such meetings occurred but they were not reasonably sufficient to meet the requirements of the regulations.

Because CMS has made a prima facie showing that the facility was not in substantial compliance, and Petitioner proffers no set of facts which, if accepted, would establish its substantial compliance with 42 C.F.R. § 483.25(h)(2), CMS is entitled to summary judgment on that issue. Livingston Care Center, DAB CR906 at 6.

I also conclude that, by itself, the facility's noncompliance with 42 C.F.R. § 483.25(h)(2) provides CMS a sufficient basis for imposing a CMP. The ALJ need not "address all of the deficiencies in order to conclude that CMS had a basis for imposing a CMP." Batavia Nursing and Convalescent Center, DAB No. 1904 at 23 (2004) (Where the ALJ properly found a Level G deficiency, CMS was authorized to impose a CMP and "could do so irrespective of whether Batavia was in substantial compliance with other participation requirements."); see also, Beechwood Sanitarium, DAB No. 1824 at 19 (2002) (Within the ALJ's discretion to limit his decision to findings necessary to support the remedies imposed.).

C. Petitioner has not challenged the reasonableness of the $350 per day CMP.

I consider now whether Petitioner has preserved the issue of the reasonableness of the amount of the CMP.

CMS asserts that Petitioner has not challenged the amount of the CMP as unreasonable and points out that Petitioner did not address the issue in its prehearing brief. At the time Petitioner filed its hearing request, the CMP was set at $450 per day. Petitioner's hearing request mentions the CMP but in an ambiguous way. The hearing request asserts generally that the facility

disputes the remedies selected, amounts and the imposition of remedies by [CMS] resulting from a survey conducted on March 30, 2001. . . . A Civil Money Penalty in an amount and effective dates yet to be determined. (sic)

Request for Hearing at 1. Later, the request says

The deficiencies were improperly and inappropriately cited and the remedies imposed should be withdrawn. These remedies include . . . the Civil Monetary Penalty.

Id. at 7. My September 7, 2001 order directed Petitioner to set forth in its pre-hearing brief "all factual and legal issues" and "all evidentiary documentation upon which Petitioner intends to rely." The order concludes with the warning that failure to raise an issue in the pre-hearing brief would preclude a party from raising it later "absent a showing of compelling good cause."

Aside from its claim that CMS had no basis for imposing a CMP, Petitioner does not argue that the amount of the $350 per day CMP is unreasonable based on the criteria for assessing reasonableness, which are set forth at 42 C.F.R. § 488.438(f). In its prehearing brief, Petitioner limits itself to a general complaint that "the facts do not support" the imposition of the CMP, and, as discussed above (see n.1, supra), incorrectly asserts that CMS miscalculated by one day the total amount of the CMP. P. Brief at 8. CMS argues in its response brief that Petitioner has not challenged the reasonableness of the amount of the CMP, and, therefore, reasonableness is not an issue. CMS Response at 22. In its reply brief, Petitioner does not refute CMS's assertion but merely repeats, verbatim, the statement of its prehearing brief. P. Reply at 8. Thus, aside from its general claim that CMS had no basis for imposing a CMP, and its one-day challenge to CMS's calculations, Petitioner has not preserved the issue.

Moreover, any doubt that Petitioner waived the issue is resolved by review of the summary judgment submissions. In its Motion for Summary Judgment, CMS again asserts that "Petitioner has not challenged the amount of the CMP imposed as being unreasonable. Therefore the reasonableness of the CMP is not an issue in this case." CMS MSJ Brief at 8. In responding to CMS's Motion for Summary Judgment, Petitioner is silent on the reasonableness of the amount of the CMP. See, P. Opp. Brief.

Petitioner has thus had multiple opportunities to articulate any challenge to the amount of the CMP and has not done so. That issue is therefore not before me.

Moreover, the penalty imposed, $350 per day, is at the low end of the mandatory range for non-immediate jeopardy situations ($50-$3,000 per day). Applying the criteria set forth at 42 C.F.R. § 488.438(f), Petitioner has not claimed that its financial condition makes the amount of the CMP unreasonable. See Community Nursing Home, DAB No. 1807, at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 (2001). The quality of care deficiency was serious, with serious harm to the resident, for which the facility was culpable. Even if Petitioner had preserved the issue, it could not have prevailed because the amount of the CMP is reasonable.

V. Conclusion

For all of the reasons discussed above, I uphold CMS's determination that from March 1, 2001 through April 23, 2001, the facility was not in substantial compliance with program participation requirements, specifically 42 C.F.R. § 483.25 (Quality of Care).

JUDGE
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Carolyn Cozad Hughes

Administrative Law Judge

FOOTNOTES
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1. The June 13, 2001 notice letter contains an obvious error. In the second paragraph, the letter accurately says that the revisit found the facility in substantial compliance "effective April 24, 2001." However, in listing the remedies imposed, the letter says that the CMP is "discontinued effective April 25, 2001." Later, however, the letter sets the period of noncompliance at 25 days, "beginning March 30, 2001 and continuing through April 23, 2001." CMS Ex. 5 at 1-2. The parties agree that the period in question runs from March 30 through April 23, 2001. CMS lists those dates in its submissions. CMS Response to Petitioner Brief (CMS Response) at 1-2; CMS Motion for Summary Judgment (CMS MSJ) at 1. In its reply brief, Petitioner points out the mistake, but then, in error, claims that $350 (one day CMP) should be deducted from the $8,750 total. Petitioner Reply Brief (P. Reply) at 8. In fact, CMS had the correct total (March 30 through April 23 = 25 days; $350 x 25 days = $8,750); it simply misstated the effective date of compliance at one place in the letter.

2. The State Agency also conducted a Life Safety Code (LSC) survey and concluded that the facility was not in substantial compliance with life safety code requirements, citing two D-level deficiencies, isolated instances that cause no actual harm but have the potential for more than minimal harm. CMS Ex. 3 at 21-22. Petitioner elected not to appeal these citations. P. Brief at 8. Presumably, these unappealed deficiencies by themselves would provide a basis for CMS's imposing a penalty, including a CMP of no less than $50 per day. 42 C.F.R. § 488.438. However, CMS has not pressed the LSC issue, so I decline to consider it here.

3. I make Findings of Fact and Conclusions of Law (Findings) to support my decision in this case. I set forth each Finding in italics as a separate heading.

4. Nor are the declarations critical here. Summary judgment is supportable based solely on the treatment records upon which both parties rely.

5. A late entry in the nurses' notes (entered the following morning) says that at 11:00 p.m. he complained of left leg pain, and that his hospital records indicate an incident occurred there, although no x-rays were taken at that time. P. Ex. 10 at 17; CMS Ex. 23 at 31. His left leg was x-rayed on January 23, 2001, and the results were negative. CMS Ex. 23 at 54-55.

6. Indeed, in his declaration, Nurse Consultant Schindler responds virtually point by point to the statements of the McClure declaration, but stops just short of responding to Surveyor McClure's description of this incident. Surveyor McClure discusses the incident in ¶ 9(j) of her declaration. Nurse Consultant Schindler responds "to Ms. McClure's declaration at ¶¶ 9(g)-(i)," and then responds to the assertions found at ¶ 10, but omits reference to ¶ 9(j). Schindler Decl. at 4-5 ¶¶ 4(k) and 5.

7. Nurse Consultant Schindler speculates, without any authority, that "it is just as possible, if not more so, that R17 had fractured his hip occurred (sic) at the hospital on 1/19/01 than at the facility." Schindler Decl. at 5 ¶ 6. In fact, a note written by RN Booth indicates that R17's left leg was x-rayed on January 23 and the results were negative. CMS Ex. 23 at 55; see also, P. Ex. 10 at 17; CMS Ex. 23 at 31 (On January 23, he moved his feet, arms, and legs freely without complaints of pain.). Of course, even if R17's broken hip were not directly attributable to a fall from his bed, the evidence would still establish actual harm, an elbow laceration and an emergency room visit. Moreover, the regulations do not require a finding of actual harm to justify a finding of substantial noncompliance, so long as the deficiency has the potential for causing more than minimal harm. 42 C.F.R. §§ 488.301; 488.404. For R17, climbing out of bed, by itself has the potential for causing more than minimal harm.

8. According to RN Booth, on January 29, 2001, at 3:00 a.m., the resident "climbed over the bed rail." Booth Decl. at 2 ¶ 5. The January 29 nurses' note says "climbed over rail [and] was standing in bedroom." CMS Ex. 23 at 36. I have discussed elsewhere, the references to "falls" contained in the nurses' notes and reports. See CMS Ex. 23 at 53-55, 57, 79.

9. Without foundation or citation, Consultant Schindler declares that on February 1, 2001, the facility had "at least the following interventions in place to supervise and assist R. 17 from sustaining an injury: a wanderguard (which he destroyed), calllight (sic), siderails, tabs unit, pummil cushion, PSA chair alarm and bed alarms, a bed mat, medications, and a lap belt." Schindler Decl. at 5 ¶ 6. Neither of the other facility witnesses, who were actually in the facility at the time, made such a claim. The treatment records do not support the claim and, in its briefs, Petitioner does not make that argument. I would have expected Petitioner to articulate specifically its position as to which interventions were in place at any particular time, and to resolve any discrepancies among its witnesses and between its witness' declarations and other evidence. Petitioner has not done so here. However, these discrepancies are of no material significance. I accept that a call light, side rails, bed mat, and tabs unit/bed alarm were in place, but find that they were ineffective. The other interventions Consultant Schindler mentions, the chair alarms and pummil cushion would have been placed on his chair and/or mobile recliner, obviously not affecting his ability to climb out of his bed.

I note also that an expert opinion has value only to the extent that the expert can support it. Here, Consultant Schindler has not supported many of his opinions with any verifiable facts. Indeed, some of his opinions, like the assertion that R17 likely broke his hip on January 19, before he was admitted to the facility, are belied by the record evidence. CMS Ex. 23 at 31, 54-55; P. Ex. 10 at 17.

10. In the meantime, a Doppler study showed deep vein thrombosis in his left leg, and he was put on bed rest. CMS Ex. 23 at 24. A February 12 note refers to his Coumadin therapy. P. Ex. 10 at 32. An individual taking Coumadin may be at an even greater risk for serious injury from a fall. However, CMS has not here suggested any facility failure to monitor appropriately for unusual bleeding or bruising.

11. I note that the report, which is cosigned by RN Booth, uses the term "fall" in the narrative ("Res was in hallway prior to fall . . .).

12. I note that the facility's liberal administration of Ativan seems to have created some problems for R17. On February 28, his occupational therapy evaluation notes that his ability to use his upper extremities and to stand was hampered by the increase in his Ativan. "Pt. very lethargic which means he can't help [with] standing. Ativan level needs to be [changed] if he is to benefit from therapy." P. Ex. 23 at 22. The therapist also noted that R17 was progressing before his last hip fracture and had the potential to improve. Id. at 23.

 

CASE | DECISION | JUDGE | FOOTNOTES