38-40 Freneau Avenue Operating Company, LLC d/b/a Atrium Post Acute Care of Matawan, DAB CR5059 (2018)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a per-instance civil money penalty of $12,505 against Petitioner, Atrium Post Acute Care of Matawan, a skilled nursing facility.

I. Background

CMS moved for summary judgment, filing 11 proposed exhibits in support of its motion.  It identified these exhibits as CMS Ex. 1-CMS Ex. 11.CMS Ex. 11 is the written direct testimony of Anne Yannes. CMS filed two versions of this exhibit, with the second version being a revised version of the original testimony. In this decision I cite to the second version of CMS Ex. 11.  Petitioner opposed CMS’s motion and cross-moved for summary judgment, filing four exhibits that it identified as P. Ex. 1-P. Ex. 4.  Petitioner objected to my receiving CMS Ex. 11.

I sustain Petitioner’s objection to CMS Ex. 11 and exclude the exhibit.  Ms. Yannes, a surveyor-supervisor, did not directly witness any of the events at Petitioner’s facility that

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are the basis for this case nor did she participate in a survey of the facility.  She predicates her testimony entirely on the documents and interviews obtained by other individuals.  Her testimony is cumulative and adds nothing to the facts of the case.  Furthermore, in her testimony, Ms. Yannes renders legal opinions as to Petitioner’s noncompliance with participation requirements and as to the scope and severity of that noncompliance.  These are objectionable because Ms. Yannes is not qualified to render opinions as to legal issues.

I receive CMS Ex. 1-CMS Ex. 10 and P. Ex. 1-P. Ex. 4 into the record.  I find it unnecessary to conclude that the criteria for summary judgment are met here because there are no witnesses who would testify at a hearing.  Consequently, an in-person hearing would be pointless.  I decide the case based on the parties’ briefs and exhibits.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether Petitioner failed to comply substantially with a Medicare participation requirement and whether the per-instance civil money penalty that CMS determined to impose is reasonable.

CMS and Petitioner argue at length as to whether any noncompliance manifested by Petitioner comprised immediate jeopardy for Petitioner’s residents.  I do not address these arguments because the presence or absence of immediate jeopardy is not a necessary element in deciding whether a per-instance civil money penalty is reasonable.  Fort Madison Health Ctr., DAB No. 2403 at 12-13 (2011).  The presence or absence of immediate jeopardy has relevance to deciding the range of permissible daily civil money penalties.  42 C.F.R. § 488.438(a)(1)(i), (ii).  However, where a per-instance civil money penalty is at issue, as is the case here, the presence or absence of immediate jeopardy is not a necessary element in deciding the penalty amount.  42 C.F.R. § 488.438(a)(2).  In deciding the reasonableness of a per-instance civil money penalty, I consider the criteria set forth at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  Immediate jeopardy is not one of the listed regulatory factors.

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B. Findings of Fact and Conclusions of Law

CMS asserts that Petitioner failed to comply substantially with the requirements of 42 C.F.R. §§ 483.12(b)(1)-(3) and 483.95(c)(1)-(3).  These regulations contain requirements governing what policies and procedures a facility must enact and implement and what training it must provide to its staff to ensure that its residents are neither abused nor neglected.  CMS focuses its case specifically on Petitioner’s alleged failure to comply with the requirements set forth at 42 C.F.R. § 483.12(b)(1) and (2).  These subsections require a skilled nursing facility to develop and implement policies and procedures that prohibit and prevent abuse of residents, and also to establish policies and procedures to investigate any allegations of abuse.

CMS contends that Petitioner’s staff failed to comply with the written policy that Petitioner developed to protect residents against abuse.  That allegation is thus an allegation that Petitioner did not implement its anti-abuse policy.  The undisputed facts of this case sustain that assertion.

Petitioner’s anti-abuse policy addresses verbal abuse of residents.  It prohibits the staff from willfully using language that includes disparaging and derogatory terms.  It specifically prohibits use of language that can be interpreted as threatening, malicious, angry, or of a hostile tone.  CMS Ex. 5 at 1.

When a member of Petitioner’s staff suspects the presence of abuse he or she must report that possible abuse to his or her immediate supervisor, department head or the facility administrator.  CMS Ex. 5 at 4.  Petitioner’s policy describes the failure to report a suspected case of abuse as unprofessional conduct that may result in termination of employment.  Id. Any employee who is suspected of engaging in abuse must be relieved of his or her duties pending completion of an investigation into the possible abuse.  Id.

The undisputed facts establish that:

• In October 2013, Petitioner admitted Resident #1 to its facility.  CMS Ex. 9 at 1.  Petitioner’s staff evaluated the resident as having severely impaired cognition.  CMS Ex. 10 at 7, 21.  In a care plan that Petitioner’s staff developed after the incident that is the basis for this case, the staff concluded that the resident had the potential to be physically and/or verbally aggressive.  CMS Ex. 9 at 14
• On November 29, 2016 a certified nursing assistant (CNA) attempted to provide care to Resident # 1.  At that time the resident sat in a wheelchair and the CNA sought to reposition the resident’s legs.  The resident became agitated and began

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     yelling and cursing at the CNA.  The CNA then told the resident to “shut up.”  CMS Ex. 10 at 4.

• One of Petitioner’s activity aides witnessed the incident. The aide immediately reported the incident to Petitioner’s activity director and to a registered nurse, who told the aide to report the incident to the CNA supervisor.  The supervisor responded to the report by speaking to the CNA who had been involved in the incident and instructed her not to speak to a resident in that manner.  CMS Ex. 10 at 4.
• The CNA supervisor relieved the CNA from providing care to Resident # 1 for the remainder of her shift.  CMS Ex. 4 at 8.  However, she did not relieve the CNA of all of her duties.  Id.
• The CNA supervisor did not report the incident to Petitioner’s director of nursing until the following day.  CMS Ex. 4 at 3, 8.
• Upon learning of the incident, the director of nursing terminated the employment of the involved CNA, terminated the activity director, suspended the CNA supervisor, and suspended and directed retraining of the registered nurse to whom the activity aide reported the incident.  CMS Ex. 4 at 3.  Petitioner subsequently re-educated its staff on abuse prevention policies, including event-reporting guidelines, and on caring for residents with dementia or behavior issues.

This incident demonstrates clear failures by Petitioner’s staff to comply with Petitioner’s anti-abuse policy.  None of the members of Petitioner’s staff – neither the activity aide, the registered nurse, nor the CNA supervisor – reported the incident immediately to the director of nursing, as should have been done pursuant to Petitioner’s anti-abuse policy.  Nor did the CNA supervisor relieve the CNA of her duties and send her away from the facility when the incident was reported to her, as Petitioner’s policy requires.  Rather, she merely reassigned the CNA to perform other work at the facility in lieu of her regularly assigned duties.

These failures by Petitioner’s staff to comply with the anti-abuse policy constitute an evident failure to implement the policy in the face of an allegation of possible abuse.  That constitutes substantial noncompliance with the requirements of 42 C.F.R. § 483.12(b)(1) and (2).

Petitioner argues that these transgressions were de minimis and should not amount to a finding of regulatory noncompliance.  It argues, first, that it has a robust anti-abuse policy and that there is no evidence that the policy itself is deficient.  P. Br. at 7-10.  It asserts

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that there is no evidence of actual abuse, inasmuch as there is no evidence that Resident # 1 suffered any harm when the CNA told her to shut up.  P. Br. at 14.

Petitioner also argues that its staff was under no obligation to report the incident immediately to the director of nursing because the allegation did not involve abuse.  P. Br. at 9-10.  It contends that the failure to relieve the CNA of all duties and to send her away from the facility on the evening of November 29 was, at worst, technical noncompliance with Petitioner’s anti-abuse policy inasmuch as the CNA supervisor relieved the CNA of her duty to provide care to Resident # 1.  P. Br. at 10, 14.  Finally, Petitioner asserts that it immediately implemented vigorous corrective actions to assure that lapses in reporting or other compliance with the policy will not reoccur.  P. Br. at 15.

I find these arguments to be unavailing.  First, the adequacy of Petitioner’s anti-abuse policy is not at issue in this case.  Rather, it is the failure by Petitioner to implement that policy that is in question.  The most vigorous policy is of no benefit if it is not implemented.

Second, Petitioner’s argument notwithstanding, the outcome of this case does not hinge on whether Resident # 1 actually was abused.  It unnecessary that I decide that the resident was abused in the sense that she suffered actual harm when she was told to shut up.  The language used by the CNA clearly fell within Petitioner’s policy’s prohibition against the use of language that could be interpreted as threatening, malicious, angry, or of a hostile tone.  CMS Ex. 5 at 1.  The CNA’s use of that language in speaking to Resident # 1 created a potential for abuse that immediately triggered the reporting and disciplinary requirements of Petitioner’s anti-abuse policy.  Whether the resident actually suffered harm is not relevant.

The potential for abuse triggered immediate reporting requirements and the failure to report the incident to Petitioner’s director of nursing plainly violated those requirements.  One cannot legitimately say that with hindsight there was no abuse and that obviated the need to report.  The activity aide who reported the incident made a credible allegation that abuse had occurred.  That triggered the requirement of Petitioner’s policy to report immediately the allegation to Petitioner’s supervisory staff.

The failure to relieve the CNA immediately of all of her duties is not simply a minor or technical violation of Petitioner’s anti-abuse policy.  When the incident was reported it was not possible for anyone to conclude reasonably that the CNA’s potential for uttering abusive language was limited just to Resident # 1.  All of the residents of Petitioner’s facility deserved immediate protection from the possibility that the CNA might abuse them as well as Resident # 1.

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Finally, the fact that Petitioner immediately undertook corrective actions, while laudable, does not gainsay the obvious violation of Petitioner’s policy.

The $12,505 per-instance civil money penalty that CMS determined to impose falls slightly higher than the mid-point of the range of possible per-instance civil money penalties that may be imposed against skilled nursing facilities for non-compliance with Medicare participation requirements.  45 C.F.R. § 102.3; see also 42 C.F.R. § 488.438(a)(2).  I find that the seriousness of Petitioner’s noncompliance justifies this penalty amount.

I ground my decision that this penalty is reasonable not on the actual language that the CNA used in addressing Resident # 1 but on Petitioner’s staff’s failure to recognize the potential seriousness of the event and to respond appropriately.

The fact that one of Petitioner’s staff used potentially highly abusive language in addressing a resident posed the potential for serious harm.  Residents in skilled nursing facilities are by definition too sick or too impaired to function outside of those facilities.  They are fragile, weak, and vulnerable individuals.  Subjecting them to abusive language clearly poses the potential for serious psychological injury.  The incident should have triggered alarms that would have instantly brought the incident to the attention of Petitioner’s managing staff.  That is what Petitioner’s policy required and that is also consistent with regulatory requirements.  The failure to immediately do so put not just Resident # 1 at risk but also all of Petitioner’s residents.  That risk was heightened when the offending CNA was not immediately relieved of her duties and sent away from the facility.