Redwood Healthcare Center, LLC, DAB CR5805 (2021)

DECISION

I enter summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and sustain its determination to impose a per-instance civil money penalty of $10,205 against Petitioner, Redwood Healthcare Center, LLC, a skilled nursing facility in Oakland, California.

I. Background

I received this case recently as a reassignment from the docket of another administrative law judge.  The parties had completed an exchange of briefs and proposed exhibits.  On reviewing the briefs, I found that CMS had asserted that its noncompliance and remedy determinations were based on undisputed facts.  For that reason, I afforded CMS the opportunity to file a motion for summary judgment and I gave Petitioner the opportunity to reply to the motion.  CMS moved for summary judgment and Petitioner opposed the motion.

CMS filed 16 proposed exhibits, identified as CMS Ex. 1-CMS Ex. 16.  Petitioner filed two exhibits, identified as P. Ex. 1-P. Ex. 2.  I do not receive these exhibits into the

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record inasmuch as I find no disputed material facts.Petitioner objected to portions of CMS Ex. 11, asserting that they consist of opinions made without foundation.  The exhibit consists of a declaration by Abosede Lambo, R.N., a state agency surveyor who conducted a survey of Petitioner's facility.  I do not rule on Petitioner's motion.  However, I do not rely on any of the declarant's opinions in deciding this case.  I cite to some of the exhibits only in order to illustrate facts that are not in dispute.

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 a per-instance civil money penalty of $10,205 is a reasonable remedy.

B. Findings of Fact and Conclusions of Law

CMS alleges that on two occasions (March 12 and March 14, 2019) a member of Petitioner's staff, a licensed vocational nurse, intentionally locked one of Petitioner's residents outside of its facility.  These acts, CMS asserts, constitute unlawful seclusion of a resident.

The relevant regulation, 42 C.F.R. § 483.12(a)(1), directs that facilities must not use, among other things, abuse or involuntary seclusion.  Seclusion is thus akin to abuse.

The term "seclusion" is not defined by the regulation.  I take notice that in common parlance, "seclusion" is synonymous with "isolation."  Deliberate involuntary isolation of a resident at a skilled nursing facility from other residents and staff, or from the facility's premises, constitutes an act of involuntary seclusion within the regulation's meaning.

Resident 1 began living at Petitioner's facility in November 2018.  He had numerous physical impairments, including end stage kidney disease, gait and mobility problems, and dysphagia (difficulty swallowing).  CMS Ex. 3 at 1-2.  He had an ileostomy, a surgically induced opening through his abdominal wall to his intestine.  Id. at 2.  He was substantially limited by his impairments.  He needed assistance from at least one of Petitioner's staff for activities that included bed mobility, transfers (i.e., from bed to wheelchair), locomotion, dressing, toilet use, and personal hygiene.  Id. at 13-15.  He required a wheelchair for mobility.  Id. at 15.  The resident also had some cognitive limitation.  In an interview, the resident could only repeat two of three words and could not identify the current year or month.  Id. at 11.  Resident 1 was a cigarette smoker.  He

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manifested some behavioral problems.  At times, he resisted efforts by staff to direct him.  He became verbally abusive at times.  CMS Ex. 8 at 3.

At about 4 a.m. on March 12, 2019, Resident 1 came out of his room and told a licensed vocational nurse that he wanted to smoke.  The nurse told the resident that it was too early in the day for him to smoke.  CMS Ex. 3 at 18.  The resident insisted on leaving the building in order to smoke and exited the facility.  The nurse locked the door behind him and refused to reopen it with the resident outside.  Id.  Subsequently, the resident persuaded a certified nursing assistant to open the door and to allow him back into the facility.  Id.

A second incident occurred at around 6 a.m. on March 14, 2019.  As with the first incident, Resident 1 exited Petitioner's building in order to smoke and the licensed vocational nurse again locked him out of the building.  CMS Ex. 8 at 2-3.

I find no dispute that on March 12, the nurse deliberately and intentionally locked Resident 1 out of Petitioner's facility.  The nurse admitted doing so.  CMS Ex. 3 at 18.  The act of locking out the resident on that date constituted involuntary isolation of Resident 1 and unlawful seclusion in violation of the governing regulation.

As concerns the March 14 incident, the facts do not unequivocally establish that the nurse deliberately locked out Resident 1 on that occasion.  When interviewed, the nurse stated that she had locked the facility's door in order to protect residents within the facility.  She did not admit that she knew Resident 1 was outside on that occasion.  While I certainly could infer that the nurse knew that she was secluding Resident 1 on March 14 – and that certainly is the most reasonable inference to draw from the exhibits – it is also within reason to infer that she did not.  For that reason, I decline to find a second incident of seclusion.

That said, the incident of March 12 plainly constituted a regulatory violation, and a very serious one.  Locking Resident 1 out of the facility on even one occasion posed the potential for very serious harm to that resident.  As I have discussed, he was in a severely deteriorated physical condition, wheelchair bound, and dependent on Petitioner's staff for most activities of daily living.  He was left to fend for himself, in the dark, in weather conditions that would be hazardous to anyone in Resident 1's physical state.  Nighttime temperatures in Oakland, California during the first half of March are in a range that include temperatures as low as 40 degrees Fahrenheit or even lower.  CMS Ex. 13.

I find the per-instance civil money penalty that CMS determined to impose to be justified by the undisputed facts that establish the seriousness of Petitioner's noncompliance and the culpability that must be imputed to Petitioner.  42 C.F.R. §§ 488.438(f)(1)-(4), 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  The seclusion of the resident on March 12, 2019, was no accident.  It was a deliberate, punitive act.  The only

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reasonable inference that I can draw from the undisputed facts is that on March 12, a nurse locked the resident outside of the facility in order to punish him for not following her directive.

As I have discussed, unlawfully secluding Resident 1 put him at substantial risk of physical harm.  The seriousness of Petitioner's noncompliance is underscored by the fact that the resident was a sick, wheelchair bound individual, left to fend for himself in the cold and darkness of early morning.

Environmental factors that put the resident at risk certainly included exposing him to low temperatures.  There is another factor that endangered the resident, cited by the nurse who secluded the resident.  She asserted that on March 14, 2019, she locked the facility's door with the resident outside because other residents were at risk from intruders, given the facility's location in Oakland, California.  CMS Ex. 8 at 2.  Obviously, if residents within the facility are at risk of harm due to an unlocked door, then a frail and seriously impaired resident who is locked outside of the facility would be at an even greater risk of harm.

I have considered Petitioner's arguments in reaching my decision.  I find them to be without merit.

Petitioner asserts that there are disputed issues of material fact that preclude entry of summary judgment.  However, it has not offered any evidence-based facts that challenge the facts that I recite as undisputed.

Petitioner offers no facts to challenge what happened on March 12, 2019.  Indeed, in opposing CMS's motion, Petitioner is silent about the events of that date.  See Petitioner Redwood Healthcare Center, LLC's Response in Opposition to the Centers for Medicare and Medicaid Services' Motion for Summary Judgment (Petitioner's brief).

Petitioner argues that there is a fact dispute about what happened on March 14, 2019.  I do not base my decision on the March 14 incident.  As I have explained, the act of locking out Resident 1 on March 12 is, in and of itself, noncompliance with regulatory requirements, and it justifies the penalty that CMS determined to impose.

Petitioner contends that the facts relied on by CMS emanate from uncorroborated hearsay that renders them inherently unreliable.  Petitioner's brief at 9.  That is incorrect.  The facts that I rely on to establish noncompliance are admissions made explicitly and freely by the nurse who excluded Resident 1 on March 12, 2019.  CMS Ex. 3 at 18.  She states:

I told him [it] is too early to go outside to smoke.  He insisted open the door and went outside [sic].  I locked the door.  Later he started knocking, I told

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him that he was told not to go outside that it was too early he forced himself outside that [I] am not going to open the door. . . .

Id.  On March 12 the resident did not reenter the facility until another employee, a nursing assistant, opened the door for him.  Id.

Petitioner advocates that there is no proof that Resident 1 was actually harmed by Petitioner's noncompliance.  I disagree with that assertion.  There are undisputed facts showing that the resident suffered emotional distress from being locked out of Petitioner's facility.  CMS Ex. 11 at ¶¶ 10-11.

As part of this argument Petitioner attempts to minimize the extent of Resident 1's impairment by pointing to the fact that he was allowed to leave the facility on a pass.  See CMS Ex. 3 at 35-36.  That does not suggest that Petitioner's impairments were any less than that which I have described.  The reality that the resident was wheelchair bound and that he needed assistance for many activities of daily living leads only to the inference that he could not leave Petitioner's facility without the assistance of someone.  Deliberately secluding the resident outdoors and alone is not equivalent to allowing the resident to venture outside on a pass.

That said, neither noncompliance nor the remedy in this case rests on proof that Resident 1 sustained actual harm.  CMS is under no burden to prove actual harm as a predicate either for a finding of noncompliance or as a basis for imposing the remedy that is at issue here.  It is enough to find noncompliance and to justify the remedy that CMS determined to impose if the resident was put at substantial risk of harm by Petitioner's noncompliance.

Regulations governing participation of skilled nursing facilities in Medicare define "substantial compliance" with participation requirements to mean:  "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm."  42 C.F.R. § 488.301.  Noncompliance therefore occurs when a deficiency causes a potential for more than minimal harm to a resident.  That certainly was the case here, whether or not Resident 1 sustained actual harm.

Petitioner asserts that Resident 1 chose to exit the facility to smoke and that this choice was an exercise of the resident's free will.  Petitioner's brief at 11-12.  There is no dispute that the resident elected to go outside to smoke on March 12, 2019.  However, that has no bearing on either the issues of noncompliance or remedy.  What matters is that Petitioner's staff denied entry to Resident 1 when he sought to reenter the facility.  The resident's behavior does not in any respect justify involuntarily secluding him.

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Petitioner argues that undisputed facts do not justify the per-instance civil money penalty that CMS determined to impose.  It contends, first, that secluding Resident 1 was not willful and that it "was not culpable as it took diligent measures within its control in an attempt to prevent the alleged incident . . . ."  Petitioner's brief at 15.  Petitioner offers no facts to support these contentions.  They are rebutted by the undisputed facts.  As I have discussed, the nurse who secluded Resident 1 on March 12 plainly admitted that she did so deliberately.  CMS Ex. 3 at 18.

Petitioner argues also that the per-instance civil money penalty that CMS determined to impose "exceeded the maximum" allowable civil money penalty.  Petitioner's brief at 15. That is incorrect as a matter of law.  As of March 2019, the maximum allowable per-instance civil money penalty for noncompliance such as that manifested by Petitioner was more than $20,000.  42 C.F.R. Part 105.  The penalty that CMS determined to impose and that I sustain is only about one-half of the then-maximum allowable penalty.

I stress that the noncompliance in this case was egregious and that it endangered Resident 1.  The penalty is amply justified by that noncompliance, based solely what occurred on March 12, 2019.  If I were to hold a hearing in this case nothing would alter the undisputed – and unrebutted – facts concerning that incident.  Additional possible findings of noncompliance relating to the March 14, 2019 incident would be added grounds for affirming the remedy.  However, a hearing as to that incident is unnecessary because I would sustain the remedy even if I found in Petitioner's favor concerning that incident.