CASE | DECISION |JUDGE | FOOTNOTES

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


SUBJECT:

Vandalia Park,

Petitioner,

DATE: January 15, 2004
                                          
             - v -

 

Centers for Medicare & Medicaid

 

Docket No.C-03-117
Decision No. CR1131
DECISION
...TO TOP

DECISION

ENTERING SUMMARY DISPOSITION

I enter summary disposition against Petitioner, Vandalia Park and in favor of the Centers for Medicare & Medicaid Services (CMS). In doing so, I sustain the imposition of civil money penalties of $250 per day against Petitioner for each day of a period that began on September 20, 2002 and which ran through October 17, 2002.

I. Background

Petitioner is a skilled nursing facility that is located in Vandalia, Ohio. It participates in the Medicare program. Its participation in that program is governed by sections 1819 and 1866 of the Social Security Act and by regulations at 42 C.F.R. Parts 483 and 488.

This case arises from a survey of Petitioner's facility that was conducted on CMS's behalf on September 20, 2002 (September 2002 survey) by the Ohio Department of Health (ODH). At that survey, the ODH surveyors found that Petitioner was not complying substantially with Medicare participation requirements.

CMS concurred with these noncompliance findings. It determined, ultimately, that Petitioner was noncompliant during a period that began on September 20, 2002 and that ran through October 17, 2002. CMS determined to impose remedies against Petitioner consisting of civil money penalties of $250 per day for each day of the period of noncompliance. The total civil money penalties that CMS determined to impose against Petitioner is $7,000.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I issued a pre-hearing order to the parties in which I established deadlines for the parties to submit pre-hearing exchanges which included briefs, proposed exhibits, and written declarations or affidavits of witnesses. CMS complied with the deadline that I established for its exchange. Petitioner did not do so. I issued an order to show cause to Petitioner in which I directed it to file its pre-hearing exchange. I also directed Petitioner to explain why it had not filed its exchange timely. Petitioner ultimately filed an exchange more than three months after the expiration of its deadline for filing an exchange. Petitioner failed to make any explanation for its untimely filing. CMS then moved that I dismiss Petitioner's hearing request.

On October 14, 2003, I issued an order in which I denied CMS's motion to dismiss. However, I sanctioned Petitioner by restricting it to presenting only the evidence which it offered in its August 12, 2003 pre-hearing exchange. As a consequence Petitioner may not now offer any facts or fact allegations which it did not offer in its pre-hearing exchange. I also scheduled a hearing for February 5, 2004. CMS then moved for summary disposition and Petitioner opposed CMS's motion.

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 Medicare participation requirements;

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

4. Civil money penalties of $250 per day for each day of Petitioner's noncompliance are reasonable.

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 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); Lebanon Nursing and Rehabilitation Center, DAB CR1069 (2003); Madison Health Care, Inc.; DAB CR1094 (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 on which it relies 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.

Facts are not material to the outcome of a case if they are not probative of the issue which is in dispute. A motion for summary disposition will not be defeated by a dispute as to irrelevant facts. Moreover, 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 undisputed facts is not an impediment to the entry of summary disposition.

The surveyors who conducted the September 2002 survey found that Petitioner failed to comply substantially with four distinct Medicare participation requirements. In moving for summary disposition CMS alleges that there are no disputed material facts pertaining to Petitioner's noncompliance with these requirements. Petitioner asserts that there are disputed material facts.

Below, at Finding 2, I analyze CMS's allegations and Petitioner's responses with respect to each of the four alleged deficiencies. I find that Petitioner did not dispute the core fact allegations that are the basis for the deficiency findings. Consequently, summary disposition is appropriate. In some instances, facts which Petitioner alleges to be disputed are not, in reality, material to the question of whether Petitioner was complying with a participation requirement. Some of Petitioner's arguments relate to conclusions which might be drawn from the material facts offered by CMS but do not raise additional facts which controvert those facts that CMS offered. Finally, Petitioner asserts legal interpretations of regulations which are not fact-dependent.

Petitioner argues that it is being held to an unfair burden of persuasion at this stage of the case. Petitioner asserts that, in order to prevail on CMS's motion for summary disposition, it is being required to prove by the preponderance of the evidence that it complied with participation requirements. Petitioner's Brief at 6. This argument is a straw man. Petitioner has no burden of persuasion at this stage of the proceeding and is not required to prove anything to resist successfully CMS's motion for summary disposition. In order to prevail on CMS's motion Petitioner must only allege facts which, if they are true, would dispute those facts relied on by CMS in support of its motion. The relative probative value of the evidence supporting the parties' fact allegations is irrelevant at this stage of the proceeding.

Petitioner also argues that the Departmental Appeals Board's decision in Hillman Rehabilitation Center, DAB No. 1611 (1997), which apportioned the ultimate burden of persuasion to the provider in a case involving CMS, is incorrect and unlawful. Petitioner's Brief at 2 - 5. It is unnecessary that I address this argument inasmuch as I have ruled that burden of persuasion is not in question in deciding whether to issue summary disposition.

2. The undisputed material facts establish that Petitioner failed to comply substantially with Medicare participation requirements.

As I explain above, the ODH surveyors who conducted the September 2002 survey concluded that Petitioner failed to comply substantially with four participation requirements. In this Finding I discuss the undisputed material facts which relate to each of these four deficiency findings and explain why I conclude that Petitioner failed to comply substantially with the four participation requirements.

a. The undisputed material facts establish that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.13(b).

At Tag 223 of the report of the September 2002 survey, the surveyors alleged that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.13(b). CMS Ex. 3. This regulation provides that a resident of a facility "has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion." The word "abuse" is defined elsewhere in the regulations, at 42 C.F.R. § 488.301, to mean "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish."

CMS contends that undisputed facts establish that Petitioner's staff abused a resident, who is identified in the report of the September 2002 survey as Resident # 106, by confining the resident against her will. CMS Ex. 3. The facts on which CMS bases this allegation, and which CMS asserts are undisputed, are as follows:

• Resident # 106 had impairments which included dementia with agitation and depression. Petitioner's staff concluded that the resident resisted efforts to provide care to her but they noted also that the resident was easily redirected. CMS Ex. 7 at 17. Petitioner's staff was instructed to use interventions for the resident which included cuing the resident, redirecting her as allowed, leaving her in a safe and dignified manner when she became agitated, and re-approaching her after she calmed down until care was provided. Id. at 19 - 20.

• On July 3, 2002, at approximately 4:00 a.m., Petitioner's staff decided to obtain a urine specimen from Resident # 106 by catheterizing the resident. CMS Ex. 7 at 7. A nurse and two nursing assistants entered the resident's room while the resident was asleep. Id. at 9, 13, 14, 18.

• The three staff members did not awaken the resident before attempting to catheterize her. The resident awakened and became combative when the nurse attempted to pull down the resident's pants. P. Ex. 2 at 12.

• Resident # 106 attempted to pull her pants back up, thereby interfering with the attempt to catheterize her. P. Ex. 2 at 12.

• One of the nursing assistants held the resident by the hands to prevent Resident # 106 from pulling up her pants. P. Ex. 2 at 12. The nurse catheterized the resident. Id. The resident remained agitated and attempted to strike Petitioner's staff members. Id. The resident remained awake after being catheterized and walked in the facility's corridor during the remainder of the shift. Id.

• At 8:00 a.m. on July 3, 2002, a nurse observed that the resident had a large dark bruise on her right wrist and a smaller bruise on her left wrist. CMS Ex. 2 at 8. The nurse noted that the resident cried and complained of pain with palpation of her right wrist. Id.

The facts adduced by CMS satisfy the regulatory definition of abuse. They establish that Petitioner's staff willfully and unreasonably confined the resident against her will. Petitioner's records establish that the resident was restrained involuntarily by the staff while she was being catheterized. That is "confinement" by any definition. The records show that the resident struggled against physical restraint, supporting a conclusion that she was confined against her will. There is no doubt from the facts adduced by CMS that Petitioner's staff intended to restrain the resident. The act of holding the resident's hands while she was being catheterized obviously was intended to prevent the resident from resisting.

The facts show that the restraining of Resident # 106 was unreasonable. There is nothing in the resident's records to show that she needed to be restrained. Petitioner's staff resorted to force in order extract a urine specimen from Resident # 106 without even attempting to use non-coercive measures to obtain the specimen. Indeed, the facts adduced by CMS show that the resident was restrained despite entries in the resident's record that suggested that the resident could be cared for without being subjected to force.

Finally, the facts show that the resident suffered harm as a consequence of Petitioner's staff's actions. The resident's struggles and attempts to resist being catheterized and her subsequent wakefulness early on the morning of July 3, 2002 are enough to show that the resident experienced mental anguish as a consequence of the staff's actions.

Petitioner does not dispute any of the facts alleged by CMS except to deny that Resident # 106 was bruised as a consequence of being restrained by Petitioner's staff. (1) Petitioner asserts that the bruises actually predated the episode of July 3, 2003. See P. Ex. 2 at 13, 14. Petitioner argues that there thus is a dispute as to whether the resident was harmed physically by being restrained. Petitioner argues also that, in any event, the facts do not show that its staff intended to inflict injury to Resident # 106. According to Petitioner, intent to inflict injury is an essential element of willfulness. From this Petitioner asserts that CMS has not offered facts sufficient to establish that the resident was abused.

I find these arguments to be without merit. First, it is not an element of my finding that Resident # 106 was abused that the resident sustained bruises as a consequence of being restrained on July 3, 2003. Bruises are evidence of physical harm. Facts showing that the staff's holding the resident's hands against her will on July 3, 2003 caused her wrists to be bruised might be proof that the resident was harmed physically by the unreasonable confinement that was inflicted on her on that date. Petitioner has disputed these facts, and for that reason, I do not rely on them to decide that Resident # 106 was abused. Facts not disputed by Petitioner show that the resident sustained mental anguish as a result of being restrained against her will. It is these facts on which I rely to conclude that Petitioner's staff abused the resident.

A finding that a facility allowed one or more of its residents to be abused does not require a conclusion that a resident was harmed physically by abusive conduct. The definition of abuse is satisfied by facts showing that a resident sustained "physical harm, pain, or mental anguish." 42 C.F.R. § 488.301. In this case, the undisputed facts clearly show that Resident # 106 sustained mental anguish as a result of being restrained. The undisputed facts show that the catheterization caused the resident to become highly agitated. Her agitation is demonstrated by her attempts to resist the catheterization. Agitation persisted after the catheterization was completed as is demonstrated by the resident's wakefulness after the catheterization was completed and her walking the corridors of Petitioner's facility early on the morning of July 3, 2002.

Second, I disagree with Petitioner's assertion that the intent to inflict injury is a prerequisite of willfulness. Facts showing intent to commit harm clearly would be facts sufficient to establish willfulness. But, intent to commit harm is not a necessary element of willfulness. That an action is willful means only that it was deliberate in the sense that the actor intended that the act have a specific consequence. An act may be abusive if it is deliberate and if the indirect - and not just the intended - consequence of the act is to injure someone or to cause that person to experience harm. The definition of abuse at 42 C.F.R. § 488.301 makes that plain. The regulation explains that an act of confinement may constitute abuse if: it is intentional; it is unreasonable; and, it causes the victim to experience physical harm, pain, or mental anguish.

Here, the undisputed facts establish that, notwithstanding Petitioner's arguments, the actions of Petitioner's staff met the regulation's definition of abuse. The actions were deliberate. The staff intended that Resident # 106 be restrained against her will, and the act of holding the resident's hands while she was catheterized was intended to accomplish that result. The actions were unreasonable because there was no medical justification for restraining the resident and because the staff did not even attempt to obtain a urine specimen from the resident through non-coercive measures. (2) And, the actions were harmful because they caused the resident to experience mental anguish.

b. The undisputed material facts establish that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.13(c).

At Tag 225 of the report of the September 2002 survey, the ODH surveyors alleged that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.13. Subpart (c) of this regulation establishes, among other things, investigative protocols that a facility must comply with when it is put on notice of a possible incident of abuse. Specifically, subpart (c)(4) states that:

The results of all investigations must be reported to the [facility's] administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.

CMS asserts that Petitioner failed to comply with this requirement in that it failed to report the results of an investigation of abuse within five working days of the incident. (3) CMS contends that the following facts support this conclusion:

• On June 28, 2002 two of Petitioner's residents, identified as Residents # 126 and # 127, reported to Petitioner's staff that an employee of Petitioner entered their room and threatened to injure them with a knife. CMS Ex. 3 at 6 - 7; P. Ex. 3 at 7 - 8.

• On June 28, 2002 a report of the residents' complaint was given to Petitioner's administrator for further investigation. CMS Ex. 8 at 8 - 10; P. Ex. 3 at 9 - 11.

• Petitioner did not submit a report of the alleged incident to ODH until July 12, 2002, nine working days after Petitioner's administrator was apprized of the alleged incident.

On their face these facts establish a failure by Petitioner to comply with the requirements of 42 C.F.R. § 483.13(c)(4). The regulation gives a facility no leeway in its duty to report to a State survey agency, such as ODH, the results of an investigation into an allegation of abuse within 5 working days of the incident. The facts adduced by CMS plainly show that Petitioner missed this hard deadline.

Petitioner has not disputed any of the facts on which CMS relies in support of its motion for summary disposition. See Petitioner's Brief at 13 - 14. Instead, Petitioner argues that it thoroughly investigated the incident in question and that it did so despite the refusal of involved staff to cooperate with Petitioner. That may be true, but that begs the question of whether Petitioner complied with the requirements of the regulation. CMS is not alleging in its motion that Petitioner was less than thorough in investigating the alleged abuse episode. CMS premises its motion on facts showing that Petitioner failed to complete its investigation timely. Petitioner offers nothing to refute those facts.

Petitioner argues also that, if it failed to comply with the requirements of 42 C.F.R. § 483.13(c)(4), its failure was insufficient to constitute a substantial failure to comply with a participation requirement. This argument is premised on the fact that Petitioner was "only" four days late in submitting its report to ODH.

I disagree that the failure to comply with timeliness requirements was insubstantial. As I discuss above, the regulation establishes a hard deadline for compliance and does not permit exceptions to the rule. This deadline reflects the reality that an incident of abuse in a facility may be evidence of an ongoing problem that jeopardizes the safety and even the lives of residents. The regulation requires that every alleged episode be treated with utmost seriousness by a facility and that the relevant State survey agency be notified promptly in order to protect residents against even a remote possibility that there is an ongoing problem that jeopardizes their safety or lives.

Here, the allegation was that a staff member threatened to cut residents with a knife. That allegation may have been false or completely fanciful. But, it was incumbent on Petitioner to get the matter resolved and reported immediately given the potential for harm that would be present if the allegations were true. Petitioner's management had no way of knowing whether the allegation was true or false when it was made. Petitioner was obliged, given that, to act with dispatch. And, if in fact, it was faced with a stone wall of non-cooperation by its staff it should have reported that within the five day period mandated by the regulation.

Finally, the failure by Petitioner to report the investigation of this incident timely suggests a failure by Petitioner to understand the need to act promptly when abuse allegations are made. That failure is disturbing because it may be evidence of a systemic problem.

c. The undisputed material facts establish that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.15(g).

At Tag 250 of the report of the September 2002 survey, the ODH surveyors allege that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.15(g). This subsection requires that a facility must provide medically related social services to each resident in order to assist him or her to attain or maintain the highest practicable physical, mental, and psychosocial well-being.

CMS contends that Petitioner failed to provide social services to a resident, identified in the report of the September 2002 survey as Resident # 7, after she reported to Petitioner's staff that she had been verbally and physically abused by her husband during a visit to her home and over the 35-year duration of her marriage. To support this argument it relies on the following facts, which it contends are undisputed:

• Resident # 7 was diagnosed as experiencing depression and was assessed as being anxious, withdrawn, and sad. CMS Ex. 9 at 12.

• On May 26, 2002, Resident # 7 returned to Petitioner's facility after an at home visit with her husband. CMS Ex. 9 at 14; P. Ex. 1 at 16. The resident was crying on her return to the facility and alleged that her husband had pushed her down some stairs while she was at home with him. CMS Ex. 9 at 15; P. Ex. 1 at 17. She reported additional incidents of abuse by her husband which allegedly occurred on this home visit. Ids. She told Petitioner's staff that her husband had abused her during the previous 35 years. Ids.

The resident told Petitioner's staff that she was afraid of her husband and that she no longer desired to return to her home. CMS Ex. 9 at 15; P. Ex. 1 at 17. She averred, however, that she desired to see her puppy, which lived with her husband. Ids.

Petitioner's administrator reported the allegations made by Resident # 7 to the local police. CMS Ex. 9 at 6; P. Ex. 1 at 18.

• After May 31, 2002 there are no social services notes to document what, if anything, Petitioner's social services staff did to deal with the concerns and fears that had been voiced by Resident # 7. Nor was Petitioner's care plan updated, either to address any safety concerns that might relate to the resident's interaction with her husband, or to address any ongoing psychosocial problems manifested by Resident # 7.

The facts adduced by CMS, if not refuted by Petitioner, establish a substantial failure by Petitioner to provide Resident # 7 with medically related social services, as is required by 42 C.F.R. § 483.15(g). The resident suffered from depression that was almost certainly related, at least in part, to her fears of continuing abuse by her husband. Yet, there is no documentation of any intervention by Petitioner's staff to assist the resident in this regard after May 31, 2002.

Petitioner does not deny the facts upon which CMS relies nor does it offer facts of its own to refute them. Petitioner asserts that "the record is replete with CMS's own evidence that R.7's desire not to be abused by her husband and her concurrent desire to see her puppy were accommodated." Petitioner's Brief at 15. Evidently, the evidence that Petitioner refers to are the interventions made by its administrator prior to May 31, 2002. However, CMS predicates its motion on Petitioner's failure to take action to help the resident after May 31, 2002. Petitioner has offered no facts to show that it did anything to help the resident after that date.

Petitioner asserts that it did all that it was reasonably required to do to provide care for Resident # 7:

[T]he facility is not obligated to buy the resident her own puppy nor is [it] required to do the impractical task of making a psychotically-depressed resident with a recently-discovered 30+ year history of abuse by her husband "happy."

Petitioner's Brief at 15. Perhaps not, but Petitioner is obligated to address a resident's depression and its root causes to the extent that it is aware of them and reasonably can do so. Here, the facts adduced by CMS show that Petitioner failed to take even basic measures after May 31, 2002 to address those problems and Petitioner has not refuted those facts. Whether or not efforts undertaken by Petitioner would have succeeded is a matter of conjecture that is not necessary for me to resolve. But, Petitioner had an obligation to at least attempt to do something to help the resident. I conclude from the undisputed facts presented by CMS that Petitioner failed to do that.

Petitioner argues also that it is speculative to assume that the resident continued to suffer emotionally after May 31, 2002. However, it is not speculative to conclude that the resident remained depressed as of that date and thereafter inasmuch as Petitioner has offered no facts to show that the resident's depression was resolved by May 31, 2002. It would be fanciful to assume that the resident's depression somehow resolved spontaneously on May 31, 2002.

d. The undisputed material facts establish that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25.

At Tag 309 of the report of the September 2002 survey, the ODH surveyors concluded that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25. This regulation requires that a facility provide to each of its residents necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with each resident's comprehensive assessment and plan of care.

CMS asserts that Petitioner failed to provide care to a resident, identified in the report of the September 2002 survey as Resident # 69, in accord with the requirements of the resident's plan of care. CMS relies on the following facts to support this assertion:

• Resident # 69 was assessed as having mood and behavior problems and a history of inappropriate and combative behavior. CMS Ex. 10 at 5, 10; P. Ex. 5 at 8. The resident's plan of care described interventions which were intended to address these problems consisting of approaching the resident in a calm, open, and reassuring manner with each contact. The staff was instructed that, when the resident became combative while care was being provided, they were to leave the resident in a safe position and to re-approach her until the task was completed. CMS Ex. 10 at 10 - 11; P. Ex. 5 at 8.

• On May 28, 2002, the resident became hostile when a nurse attempted to take the resident's blood sugar. CMS Ex. 10 at 1, 7; P. Ex. 5 at 10. The resident's behaviors on this occasion included punching the nurse several times. Ids.

• However, the nurse did not leave the resident alone so that she would calm down. Rather, the nurse insisted on obtaining the resident's blood sugar level. CMS Ex. 10 at 1, 7; P. Ex. 5 at 10.

The foregoing facts, if not disputed by Petitioner, establish a failure by Petitioner's staff to comply with Resident # 69's plan of care and a substantial failure by Petitioner to comply with the requirements of 42 C.F.R. § 483.25. Petitioner's records describe a resident with a penchant for confrontational behavior. The approach that Petitioner's staff settled on to deal with this conduct was to allow the resident to calm down on the occasions that she became confrontational and to re-approach her afterwards. However, on May 28, 2002 a nurse insisted on drawing blood from the resident notwithstanding the resident's obvious combativeness. Although the facts presented by CMS do not show that any harm resulted from this episode the potential for harm was real. The escalating behavior of Resident # 69 on this occasion might have led to either adverse physical or emotional consequences.

Petitioner argues that the facts adduced by CMS establish a sequence of events on May 28, 2002 that, arguably, is consistent with Petitioner's plan of care for Resident # 69. According to Petitioner, the facts show that the nurse took the resident's blood after she was assaulted by Resident # 69. The inference that Petitioner would have me draw is that Petitioner's staff did exactly what the resident's plan of care required - which was to wait until after the resident calmed down to proceed with providing care to the resident - and did not provide care in the midst of a confrontation with the resident.

The problem with this argument is that Petitioner has presented no facts to support it. Petitioner has not offered anything which would show that the nurse who became involved in the altercation with Resident # 69 followed the resident's plan of care by allowing the resident to calm down before attempting to draw blood from the resident.

There is certainly nothing in the statement of the nurse who was involved in the altercation which supports the conclusion advocated by Petitioner. The nurse's notes state:

This res[ident] displayed hostility towards this nurse when attempting to take res[ident]'s am BS. Res[ident] punched this nurse several times and almost knocked glasses off face. This nurse took the punches and proceeded to stick res[ident's] finger . . . .

P. Ex. 5 at 10. The statement does not suggest that there was any pause between the altercation and the administration of care. There is nothing in the statement that would lead one to conclude that the nurse backed away from the resident and allowed the resident to calm down before taking the resident's blood. Petitioner did not offer in its pre-hearing exchange any declaration by the nurse in question that would qualify her notes or which would suggest that there is a basis in fact for the sequence of events that Petitioner now offers. And, as I explain in the introduction to this decision, Petitioner is now precluded from offering such facts.

Petitioner asserts that support for its interpretation of the nurse's statement may be found at P. Ex. 5 at 13 - 15. This document is a handwritten and unsigned analysis of P. Ex. 10. It does not offer any facts that are in addition to those which are presented in the nurse's note. It merely is an anonymous opinion which advocates Petitioner's interpretation.

3. The undisputed material facts establish that Petitioner's noncompliance persisted during a period that began on September 20, 2002 and that ran through October 17, 2002.

CMS based its determination that Petitioner's noncompliance persisted through October 17, 2002 on Petitioner's representation in a plan of correction that it would correct its deficiencies by October 18, 2002. CMS Ex. 3; CMS Ex. 6. Petitioner's representation that it would correct its deficiencies by October 18, 2002 constitutes facts, which if not controverted by Petitioner, that establish the duration of Petitioner's noncompliance with participation requirements.

Petitioner has offered no facts which might show that it corrected any of its deficiencies earlier than October 18, 2002. Consequently, the undisputed material facts establish that the duration of Petitioner's noncompliance was from September 20 through October 17, 2002.

4. The undisputed material facts establish that civil money penalties of $250 per day for each day of the September 20 - October 17, 2002 period are reasonable.

The undisputed material facts of this case establish that Petitioner did not comply substantially with Medicare participation requirements during each day of the September 20 - October 17, 2002 period. That is a basis for CMS to impose civil money penalties against Petitioner for each day of the period. 42 C.F.R. § 488.406(a)(3).

CMS is thus authorized to impose civil money penalties against Petitioner. What remains to be decided is whether the undisputed material facts of this case establish that the penalty amounts that CMS determined to impose - $250 per day - are reasonable.

The criteria for determining penalty amounts are established by regulation. First, CMS is authorized to impose penalties which fall within a range of from $50 - $3,000 for each day of noncompliance where there are deficiencies, such as those which are involved here, that are substantial but which do not place residents in immediate jeopardy. 42 C.F.R. § 488.438(a)(1)(ii). The penalties that are at issue in this case fall within the permissible range for non-immediate jeopardy level penalties.

Second, there are criteria at 42 C.F.R. § 488.438(f)(1) - (4) and 42 C.F.R. § 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)) for determining the reasonable amount of a civil money penalty that falls within the non-immediate jeopardy level range. These criteria include a facility's compliance history, its financial condition, the seriousness of the facility's deficiencies, and the relationship of the deficiencies to each other.

CMS argues that undisputed facts establish that civil money penalties of $250 per day are reasonable when these undisputed facts are measured against the regulatory criteria for determining penalty amounts. In particular, CMS points to the seriousness of the deficiencies at issue here and Petitioner's compliance history. CMS argues that the presence of a deficiency in this case in which a resident suffered actual harm as a result of being subjected to abuse justifies penalties of $250 per day. It argues that Petitioner has a history of allowing its residents to be abused which provides additional justification for the $250 per day penalties. And, it argues that the additional deficiencies which posed a potential for harm to residents provides additional basis to justify the penalties that it determined to impose.

The compliance history alleged by CMS is based on its allegations in another case involving Petitioner that Petitioner allowed several of its residents to be abused. Vandalia Park, DAB CR1120 (2003). However, in my decision in that case I found that there was insufficient evidence to establish those allegations. Id. Therefore, I do not find that the penalties in this case may be justified on the ground that there were prior occasions in which Petitioner allowed one or more of its residents to be abused.

Having said that, however, I note that in Vandalia Park I found that there were several instances in which Petitioner was seriously deficient in providing care to its residents, including an instance of an immediate jeopardy level deficiency. DAB CR1120 at 16 - 17. These incidents of noncompliance also include a failure by Petitioner to comply with its internal policy for investigating alleged incidents of abuse. Id. at 8 - 10. My earlier decision in Vandalia Park, coupled with the undisputed material facts of this case thus establishes a continuing failure by Petitioner to investigate allegations of abuse consistent with the requirements of regulations or of Petitioner's internal policy. The history of noncompliance by Petitioner certainly constitutes a reason to conclude that substantial civil money penalties may be justified here.

But, I would find the penalties that CMS determined to impose here to be reasonable even if Petitioner had no history of noncompliance with participation requirements. The deficiencies that are established by undisputed material facts - particularly Petitioner's failure to prevent Resident # 106 from being abused - are, in and of themselves, sufficiently serious to justify the $250 per day civil money penalties that CMS determined to impose. See Finding 2.a. The undisputed material facts establish that Resident # 106 suffered actual harm, consisting of mental anguish, from the abuse that was inflicted against her. Penalties of $250 per day to remedy Petitioner's noncompliance are certainly reasonable given the seriousness of that event and given further that $250 per day is actually a very low civil money penalty amount (less than ten percent of the allowable maximum amount for non-immediate jeopardy level deficiencies).

Indeed, Petitioner's failure to prevent Resident # 106 from being abused in and of itself justifies the $250 per day civil money penalties that CMS determined to impose. The fact that there are three other less serious deficiencies that are present in this case provides additional support for my conclusion that $250 per day is reasonable. But, I would sustain the $250 per day amounts even if none of the other three deficiencies were present.

Petitioner has offered no facts which support an argument that $250 per day is unreasonable. Petitioner has not argued, for example, that its financial condition precludes it from paying the penalties that CMS determined to impose.

JUDGE
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Steven T. Kessel

Administrative Law Judge

FOOTNOTES
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1. I cannot tell from Petitioner's brief whether it is conceding or denying that its staff restrained Resident # 106 while the resident was being catheterized. See Petitioner's Brief at 11 - 12. Petitioner asserts that "[i]t is hardly undisputed that the intent of the aide was to restrain R. 106, let alone in a manner designed to or likely to cause harm to her." Id. at 11. However, if the intent of that sentence is to deny that Petitioner's staff restrained the resident, Petitioner has offered no facts to support that contention. And, in fact, Petitioner seems to concede that its staff did restrain the resident. See Id. at 11 - 12.

2. Indeed, it is unclear why Petitioner's staff chose to catheterize Resident # 106. The order for a urine sample did not specify a sterile sample. There are ways to collect a person's urine, especially non-sterile urine, without resorting to an invasive process.

3. The report of the September 2002 survey does not specifically cite 42 C.F.R. § 483.13(c)(4) as the subsection allegedly contravened by Petitioner. CMS Ex. 3 at 3. However, the report does recite the language of this subsection in describing Petitioner's alleged deficiency. I find that Petitioner was not prejudiced by the failure to cite the subsection explicitly because the description of the deficiency was stated in sufficient detail and in relation to the relevant regulatory language to put Petitioner on notice as to what noncompliance the surveyors were alleging. Petitioner asserts that it "does not concur" that it had reasonable notice of the deficiency. Petitioner's Brief at 12. However, it offers nothing by way of facts or arguments to show that it was not put on reasonable notice of the noncompliance allegations.

CASE | DECISION | JUDGE | FOOTNOTES