Generations at Lincoln, DAB CR6243 (2023)

DECISION

Following complaint investigation surveys completed on May 1, 2019 and June 6, 2019 by the Illinois Department of Public Health (state agency), the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner, Generations at Lincoln, was not in substantial compliance with several Medicare participation requirements.  CMS imposed a per-day civil money penalty (CMP) of $1,245 against Petitioner from April 22, 2019 through June 16, 2019, for a total CMP of $69,720.

Petitioner appealed, and CMS moved for summary judgment, which Petitioner opposed.

For the reasons set forth below, I find that no material facts are in dispute and that CMS is entitled to judgment as a matter of law.  The undisputed evidence establishes that the facility was not in substantial compliance with Medicare program requirements, specifically, 42 C.F.R. §§ 483.10(f)(1)-(3), (8), 483.21(c)(1)(i)-(ix), and 483.25(d)(1)- (2).  I find that the per-day CMP amount imposed is reasonable, but modify the duration of noncompliance to end May 24, 2019, for a total CMP of $41,085.  CMS is required by law to prohibit Petitioner from having a nurse aide training and competency evaluation program (NATCEP) for two years.

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I.    Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in Lincoln, Illinois.  See CMS Exhibit (Ex.) 1 at 1.  Based on complaints it received, the state agency conducted a complaint investigation survey of Petitioner’s facility that ended on May 1, 2019.  Id.  The state agency found that Petitioner was not in substantial compliance with 12 Medicare requirements: 

• 42 C.F.R. § 483.10(f)(1)-(3), (8) (Tag F561)¹ (Self-Determination), Scope and severity (S/S) level G (an isolated deficiency that involves actual harm but does not pose immediate jeopardy to resident health or safety)²;
• 42 C.F.R. § 483.10(h)(1)-(3)(i)(ii) (Tag F583) (Personal Privacy/Confidentiality of Records), S/S level D (an isolated deficiency that does not cause actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy);
• 42 C.F.R. § 483.12(b)(1)-(3) (Tag F607) (Develop/Implement Abuse/Neglect Policies), S/S level D;
• 42 C.F.R. § 483.12(c)(1)(4) (Tag F609) (Reporting of Alleged Violations), S/S level D;

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• 42 C.F.R. § 483.21(c)(1)(i)-(ix) (Tag F660) (Discharge Planning Process), S/S level G;
• 42 C.F.R. § 483.21(c)(2)(i)-(iv) (Tag F661) (Discharge Summary), S/S level D;
• 42 C.F.R. § 483.25 (Tag F684) (Quality of care), S/S level D;
• 42 C.F.R. § 483.25(b)(1)(i)(ii) (Tag F686) (Treatment/Services to Prevent/Heal Pressure Ulcer), S/S level D;
•  42 C.F.R. § 483.25(d)(1), (2) (Tag F689) (Free of Accident Hazards/Supervision/Devices), S/S level G;
• 42 C.F.R. § 483.35(a)(1)(2) (Tag F725) (Sufficient Nursing Staff), S/S level F (widespread deficiency that does not cause actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy);
• 42 C.F.R. § 483.45(a)(b)(1)-(3) (Tag F755) (Pharmacy Services/Procedures/Pharmacist/Records), S/S level E (pattern of deficiencies that causes no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy); and
• 42 C.F.R. § 483.45(g)(h)(1)(2) (Tag F761) (Label/Store Drugs and Biologicals), S/S level E

CMS Ex. 1. 

Based on these findings, on May 15, 2019, the state agency imposed on Petitioner a denial of payment for new admissions (DPNA) effective July 22, 2019, and it recommended that CMS impose a CMP on Petitioner.  CMS Ex. 2 at 2.  The state agency also recommended termination of Petitioner’s provider agreement, effective November 1, 2019.  The state agency noted further that, pursuant to the regulations, Petitioner would be automatically prohibited from conducting a NATCEP for two years because it was subject to a DPNA.³  CMS Ex. 2 at 2. 

On June 19, 2019, CMS issued an initial determination in which it informed Petitioner that complaint surveys completed at Petitioner on May 1, 2019 and June 6, 2019, found

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that Petitioner was not in substantial compliance.⁴  CMS Ex. 3.  CMS noted that the most serious of the deficiencies were the three cited at S/S level G:  42 C.F.R. § 483.10(f)(1)-(3), (8) (Tag F561); 42 C.F.R. § 483.21(c)(1)(i)-(ix) (Tag F660); and 42 C.F.R. § 483.25(d)(1)-(2) (Tag F689).  CMS Ex. 3 at 1.  CMS affirmed that the DPNA would go in effect on July 22, 2019, and imposed a CMP of $1,245 per-day, beginning April 22, 2019, and continuing until necessary corrections were made to return to substantial compliance.  CMS Ex. 3 at 1-3.  CMS based the imposition of enforcement remedies on the three “G” level deficiencies indicated above.  CMS Ex. 3 at 1; CMS Prehearing Brief and Brief in Support of Summary Judgment (CMS Br.) at 1-2; see Order dated April 16, 2021.

On July 12, 2019, Petitioner requested a hearing to dispute the initial determination.  The Civil Remedies Division acknowledged receipt of the hearing request and assigned the case to Judge Scott Anderson.⁵  Judge Anderson issued a Standing Prehearing Order (SPO).

In an August 19, 2019 notice, CMS stated that a July 3, 2019 revisit found that Petitioner had returned to substantial compliance as of June 17, 2019, and, consequently, the DPNA did not go into effect and mandatory termination would not be imposed.  CMS Ex. 4 at 1. The notice also stated that the per-day CMP of $1,245 was imposed for 56 days, from April 22, 2019 through June 16, 2019, for a total penalty of $69,720.  CMS Ex. 4 at 2.  Additionally, the notice informed Petitioner that although the original triggering remedy of a DPNA did not go into effect, Petitioner was still subject to a NATCEP prohibition since a CMP in the amount of $10,697 or more had been imposed.  CMS Ex. 4 at 3.

In accordance with the SPO, CMS filed a prehearing brief and motion for summary judgment, along with 54 exhibits (CMS Exs. 1-54).  Two of the exhibits (CMS Exs. 53 and 54) were written direct testimony of CMS’s witnesses.

Petitioner filed a prehearing exchange consisting of a prehearing brief and response to CMS’s motion for summary judgment (P. Br.), twenty exhibits (P. Exs. 1-20), and objections to various CMS proposed exhibits.

CMS filed a response to Petitioner’s objections.

In an Order dated April 16, 2021, Judge Anderson overruled Petitioner’s objections to CMS’s exhibits, and he admitted all the parties’ proposed exhibits into the record.  Judge

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Anderson also directed Petitioner to file an explicit request to cross-examine CMS’s witnesses if it wished to do so; otherwise, its right to cross-examine those witnesses would be forfeited.  Order dated April 16, 2021.

Petitioner did not request to cross-examine either of CMS’s witnesses by the deadline set in the Order.  Accordingly, the declarations of CMS’s witnesses, offered as CMS Exs. 53 and 54, are permanently admitted.  Order dated April 16, 2021.

II.   Issues

The issues in this case are:

Whether summary judgment is appropriate;

Whether Petitioner was in substantial compliance with the Medicare requirements at 42 C.F.R. §§ 483.10(f)(1)-(3), (8), 483.21(c)(1)(i)-(ix), and/or 483.25(d)(1)-(2);

and

If Petitioner was not in substantial compliance, whether the amount and duration of the CMP imposed on Petitioner is reasonable under the factors in 42 C.F.R. § 488.438(f).

III.   Jurisdiction

I have jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13). 

IV.   Discussion

1. Applicable Legal Authority

The Act sets requirements for SNFs to participate in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3).  The Secretary’s regulations are found at 42 C.F.R. pts. 483 and 488.

To participate in the Medicare program, a SNF must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing

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minimal harm.”  42 C.F.R. § 488.301.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  Id.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20.  The Act and its implementing regulations require that facilities be surveyed on average every twelve months, and more often if necessary to ensure that identified deficiencies are corrected. Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4) (42 U.S.C. § 1395i-3(g)(4)).

The regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance with Medicare requirements.  42 C.F.R. § 488.406.  Among other remedies, CMS is authorized to impose a per-day CMP for the number of days a facility is not in substantial compliance or a per-instance CMP for each instance of the facility’s noncompliance.  42 C.F.R. § 488.430(a).  In this case, CMS imposed a per-day CMP.  The regulations specify that a per-day CMP will fall into one of two ranges of penalties.  42 C.F.R. §§ 488.408, 488.438.  The upper range, $6,524 to $21,393 per day, is reserved for deficiencies that pose immediate jeopardy to a facility’s residents, and, in some circumstances, for repeated deficiencies.⁶  42 C.F.R. § 488.438(a)(1)(i), (d)(2); 45 C.F.R. § 102.3 (Table).  The lower range, $107 to $6,418 per day, is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii); 45 C.F.R. § 102.3 (Table).⁷

Petitioner was also notified that it would be ineligible to conduct a NATCEP.  Pursuant to 42 C.F.R. § 483.151(b)(2) and (f), a state may not approve and must withdraw any prior approval of a NATCEP offered by a SNF or nursing facility that has been:  (1) subject to an extended or partial extended survey under sections 1819(g)(2)(B)(i) or 1919(g)(2)(B)(i) of the Act; (2) assessed a CMP of not less than $10,697 (45 C.F.R. § 102.3 (Table) (2018)); or (3) subject to termination of its participation agreement,

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a DPNA, or the appointment of temporary management.  Ineligibility or withdrawal of approval to conduct a NATCEP is mandatory if the conditions are satisfied; it is not a remedy that the state agency or CMS may decline to impose.  See 42 C.F.R. § 488.406.

If CMS imposes a remedy based on a noncompliance determination, such as a CMP, then the facility may request a hearing before an administrative law judge (ALJ) to determine whether there was a basis for the deficiency findings that led to the imposition of the remedy and whether the CMP imposed was reasonable.  Act §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  However, the facility may not appeal CMS’s choice of remedies or the factors CMS considered in selecting remedies.  42 C.F.R. § 488.408(g)(2).

A facility may only challenge CMS’s determination as to the scope and severity of noncompliance if a successful challenge would affect the range of the CMP that may be imposed, or if CMS has made a finding of substandard quality of care that results in the loss of approval of a facility’s NATCEP.  42 C.F.R. § 498.3(b)(14), (d)(10)(i).  The CMS determination as to the level of noncompliance, including the finding of immediate jeopardy, “must be upheld unless it is clearly erroneous.”  42 C.F.R. § 498.60(c)(2); Woodstock Care Ctr., DAB No. 1726 at 9, 39 (2000),aff’d, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003).

2. Findings of Fact, Conclusions of Law and Analysis

1.  Summary judgment is appropriate. 

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010), aff’d sub nom. Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F. App’x 820 (5th Cir. 2010); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).  The moving party must show that there are no genuine disputes of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law.  Anderson, 477 U.S. at 248.  If the moving party meets its initial burden, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis omitted).  “To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact -- a fact that, if proven, would affect the outcome of the case under governing law.”  Senior Rehab., DAB No. 2300 at 3. 

In evaluating a motion for summary judgment, an ALJ does not address credibility or evaluate the weight of conflicting evidence.  Holy Cross Vill. at Notre Dame, Inc., DAB

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No. 2291 at 5 (2009).  Rather, in examining the evidence to determine the appropriateness of summary judgment, an ALJ must draw all reasonable inferences in the light most favorable to the non-moving party.  See Brightview Care Ctr., DAB No. 2132 at 10 (2007) (upholding summary judgment where inferences and views of the non-moving party are not reasonable).  “[A]t the summary judgment stage the judge’s function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions.  Cedar Lake Nursing Home, DAB No. 2344 at 7 (2010). 

Petitioner opposes summary judgment, arguing that there are “factual determinations that must still be made.”  P. Br. at 5.  However, as I explain below, I find that Petitioner has not raised any genuine disputes relating to any material facts that would preclude summary judgment in this case.  Therefore, I conclude that summary judgment in CMS’s favor is warranted. 

2. Petitioner was not in substantial compliance with 42 C.F.R. § 483.21(c)(1)(i)-(ix) (Tag F660) because the undisputed evidence shows that the measures taken with respect to planning Resident 3’s discharge were deficient and fell short of its regulatory duties to develop and implement an effective discharge planning process.

Resident 3 – Facts

The following facts relating to Resident 3 are taken from the documents in the record.  Many of the facts are from Resident 3’s records, which Petitioner created and maintained. 

At the time of the May 1, 2019 survey, Resident 3 was a 61-year-old male who was admitted to Petitioner’s facility on November 9, 2018, following a hospital stay for a right ankle fracture.  CMS Ex. 19 at 1; see CMS Ex. 10 at 9, CMS Ex. 14 at 10.  He suffered from multiple diagnoses, including acute and chronic respiratory failure, type 2 diabetes mellitus with diabetic neuropathy, muscle weakness, unspecified abnormalities of gait and mobility, edema, chronic obstructive pulmonary disease, cardiomyopathy, glaucoma, and obesity.  CMS Ex. 19 at 2; see CMS Ex. 14 at 10. 

The record contains a Social Services progress note dated November 12, 2018, which states: 

[Resident 3] is a new admit from an acute care facility.  He is alert and oriented and able to voice needs.  He has a [history] of a right ankle fracture and requires extensive assistance with ADLS [activities of daily living] and ambulates by

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wheelchair. . . . [Resident 3] is . . . responsible for self. . . . [Resident 3] reports he has Triology, O2 [oxygen] concentrator, Bi-Pap, Bariatric Walker, Cane, Life Alert already in place at home.  He had skilled Nursing 2x week and a home health Aide 6 hrs a week through Blessings Home health.  He is receiving skilled therapy at this time.  [Resident 3] previously lived in an APT with his girlfriend. . . . He would like to D/C [discharge] to home with services resuming.  There are no discharge plans at this time.  Will continue to monitor.

CMS Ex. 10 at 9.⁸

Resident 3’s care plan was initiated on November 12, 2018.  With respect to discharge planning, staff documented that Resident 3 “would like to D/C to home with Home Health services” and reiterated much of what was contained in the aforementioned Social Services note.  CMS Ex. 10 at 8; CMS Ex. 13 at 13.  The care plan listed approaches with a start date of November 12, 2018, and they included, among other things:  encourage Resident 3 to discuss his feelings and concerns with impending discharge; evaluate and discuss with [Resident 3] his prognosis for independent living, identify and address his limitations, risks, benefits, and needs for maximum independence; and evaluate Resident 3’s motivation to return to the community.  The care plan set, as a long term goal with a target date of February 12, 2019, that Resident 3 would communicate his understanding of the discharge plan and describe the desired outcome by the next review date.  CMS Ex. 10 at 8; CMS Ex. 13 at 13.

A Minimum Data Set (MDS) assessment, dated November 18, 2018, showed that Resident 3 had a Brief Interview for Mental Status score of 15 (out of 15), which indicated that he was cognitively intact.  CMS Ex. 12 at 1.  The MDS noted that Resident 3’s overall goal was that he expected to be discharged to the community.  However, the MDS indicated that no active discharge planning was occurring at the time for his return to the community and no referral had been made to the local contact agency.⁹  CMS Ex. 12 at 3-4.

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A Social Services note dated December 19, 2018, stated, among other things, that Resident 3 “reports [he] has a new powered wheelchair being delivered.”  According to the note, Resident 3’s girlfriend was currently in a different nursing home.  The note reiterated that “[Resident 3] would like to D/C to home with services resuming” and stated that he “would need to be transported by [Petitioner] at dc.”  CMS Ex. 10 at 10.  

Resident 3’s physician, Dr. Kureishy, examined Resident 3 once a month at the facility.  On November 10, 2018, Dr. Kureishy examined Resident 3 for what appears to be the first time.  CMS Ex. 14 at 10-15.  Among his reported findings, he noted that Resident 3 was not walking and used a wheelchair; his right leg was in a cast, and he had previously had surgery on his right ankle.  CMS Ex. 14 at 10, 13.  Dr. Kureishy also noted that Resident 3 had a “[l]eft tibial fracture, status post surgery.  The patient is unable to walk or put weight on it, has been using a Hoyer Lift.  On Tylenol for pain.”¹⁰  CMS Ex. 14 at 13.  Under “PLAN,” Dr. Kureishy noted that Resident 3 “will have PT [physical therapy], OT [occupational therapy].  He will be continued on all of his medications.”  The physician also noted that Resident 3 “intends to go home . . . after he has made a full recovery.”  CMS Ex. 14 at 14.

On December 21, 2018, Dr. Kureishy examined Resident 3.  CMS Ex. 14 at 7-9. Among the diagnoses, he again noted that Resident 3 had a “[l]eft tibial fracture, status post surgery, weight bearing 50%, on Tylenol.”  CMS Ex. 14 at 8.  The physician reported that Resident 3 “[w]as told to stay another month, wants to go home.”  CMS Ex. 14 at 8.  Under “PLAN,” the physician again reiterated that Resident 3 “will have PT, OT.  He will be continued on all of his medications.”  CMS Ex. 14 at 8.

At Petitioner’s request, on January 14, 2019, a nurse practitioner examined Resident 3 for increased edema in his bilateral lower extremities.  CMS Ex. 15 at 27-31.  The nurse practitioner diagnosed “edema of the leg,” increased the dosage of Toresemide and ordered a magnetic resonance imaging (MRI) of Resident 3’s right leg, related to “previous injury pain of knee.”  CMS Ex. 15 at 31.

On January 15, 2019, the same nurse practitioner conducted a follow-up examination of Resident 3.  CMS Ex. 15 at 22-26.  Resident 3 denied having any weakness and pain, and the nurse reiterated her previous diagnosis of “edema of the leg.”  CMS Ex. 15 at 25, 26.  The nurse practitioner stated that Resident 3 was to continue with his current treatment plan.  CMS Ex. 15 at 26. 

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Resident 3 had an MRI sometime between January 11 and 18, 2019.  Instead of offering the complete MRI report as an exhibit, however, Petitioner offered only one page of the report.¹¹  P. Ex. 12.  I note that the page indicates that the MRI was ordered on “1/11/2019,” which is inconsistent with the nurse practitioner’s statement that she ordered an MRI at the time of her January 14, 2019 examination.  Regardless of this discrepancy, the excerpt of the MRI report, dated January 18, 2019, states the results as follows:

There is [sic] severe arthritic changes to the knee in all 3 compartments . . . Medial and lateral meniscus tears.  No ligament tears.  Recommend follow up with an orthopedic surgeon to discuss options, or return to my office and we will proceed with steroid injection at an attempt to alleviate pain.

P. Ex. 12.

On January 18, 2019, Dr. Kureishy examined Resident 3.  CMS Ex. 14 at 5-6.  Dr. Kureishy documented, among other things, that Resident 3 was not walking; had a boot on his right leg, bilateral leg swelling, and wounds on both legs.  CMS Ex. 14 at 5-6.  Under “PLAN,” the physician merely repeated what he had stated on past exams, that Resident 3 “will have PT, OT.  He will be continued on all of his medications.”  CMS Ex. 14 at 6.  There is no mention in the physician’s report of the MRI results or whether discharge was discussed with Resident 3.

According to the surveyor’s notes, Resident 3’s record contained a nursing note dated January 18, 2019, at 10:36 a.m., which documented: “Dr. Kureishy [Resident 3’s physician] rounding today:  new orders: [Resident 3] may discharge home with current meds and therapy services.”  CMS Ex. 9 at 1.¹²

On January 19, 2019, Dr. Kureishy issued a discharge order for Resident 3.  The order stated:  “Resident may discharge home with current meds and therapy services.”  CMS Ex. 11 at 1, 9.¹³  However, Resident 3 was not discharged, and he continued to reside at Petitioner’s facility.

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The nurse practitioner examined Resident 3 again on January 21, 2019 for edema in his bilateral lower extremities and also as to a medication change.  CMS Ex. 15 at 17-21.  On January 28, 2019, the nurse practitioner examined Resident 3 on an antibiotic therapy follow-up appointment.  CMS Ex. 15 at 12-16.

On January 29, 2019, Resident 3 went to an orthopedic surgeon for his right knee pain.¹⁴  CMS Ex. 15 at 1-4.  According to the surgeon’s report, “[Resident 3] presents to discuss Rt knee MRI results.  States his leg was ran over by a W/C at the nursing home he is temporarily residing at.”  CMS Ex. 15 at 1.  The surgeon diagnosed Resident 3 as having acute right knee pain and medial and lateral meniscus tears of the right knee, which he described as “unspecified tear type, unspecified whether old or current tear.”  CMS Ex. 15 at 3, 4.  The surgeon noted that Resident 3 was still under treatment for his right ankle fracture.  He stated further:

[Resident 3] is currently in a nursing home over in Lincoln Illinois.  He . . . hopes to be moving back here when he gains strength and motion etc.  He is really over the nursing home to learn how to walk again.

CMS Ex. 15 at 3.  The surgeon discussed treatment options, and Resident 3 decided to receive a steroid injection in his right knee.  CMS Ex. 15 at 3. 

On February 20, 2019, Resident 3 was examined by Dr. Kureishy.  CMS Ex. 14 at 3-4.  In his report, the physician noted that Resident 3 had a boot on his right leg, and, among other findings, stated that Resident 3 had bilateral knee pain and a torn meniscus in his right knee.  Dr. Kureishy ordered an MRI of Resident 3’s left knee.  He again stated that Resident 3 “will have PT, OT.  He will be continued on all of his medications.”  CMS Ex. 14 at 4; CMS Ex. 11 at 1, 9.

A MDS assessment dated February 18, 2019, again indicates that Resident 3’s overall goal was that he expected to be discharged to the community.  However, the MDS indicated that there was no active discharge planning occurring at that time for Resident 3 to return to the community, and no referral had been made to the local contact agency.  P. Ex. 1.

When Dr. Kureishy examined Resident 3 on March 20, 2019, among his findings, he again noted that Resident 3 had a boot on his right leg, and he had bilateral knee pain and a torn meniscus in his right knee.  CMS Ex. 14 at 1-2.  The physician’s instructions

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remained unchanged from his previous examination, namely, that Resident 3 “will have PT, OT.  He will be continued on all of his medications.”  CMS Ex. 14 at 2.

Resident 3’s MDS, dated March 30, 2019, assessed him as being cognitively intact, with a Brief Interview for Mental Status score of 15.  CMS Ex. 12 at 5.  The MDS indicated that active discharge planning was occurring for Resident 3 to return to the community, and it also noted that a referral had been made to the Local Contact Agency.  CMS Ex. 12 at 7-8.

The record shows that Resident 3 received OT and PT several times a week beginning in December 2018 until around April 19, 2019.  P. Exs. 2, 3; CMS Ex. 16.  In a PT progress note dated March 4, 2019, the physical therapist documented that Resident 3 was “[a]waiting MRI of knee and awaiting MD orders.  [Resident 3] is limited by pain with transitions.  Working on standing.”  She stated that Resident 3’s prognosis was “[f]air due to pain in knees.”  CMS Ex. 16 at 3.  In a April 1, 2019 PT progress note, the physical therapist noted that Resident 3 had recently received a gout diagnosis, had increased pain in his left ankle, was bed bound, limited with activity due to his pain, but was independent with bed mobility.  The physical therapist stated that his prognosis was “fair” due to his gout.  CMS Ex. 16 at 4.  In an OT progress note/discharge summary dated April 19, 2019, the occupational therapist noted that Resident 3’s “End of Care” was April 19, 2019.  Among other things, the occupational therapist documented that Resident 3 had met his goal of tolerating sitting upright in his chair/wheelchair for 30 minutes, and he could safely transfer between his bed and wheelchair with the use of a slide board.  The OT noted that Resident 3 had not met his goal relating to post-toileting hygiene tasks, and still required assistance.  The OT noted that Resident 3 had been using a walker for ambulation.  CMS Ex. 16 at 5.

On April 12, 2019, Petitioner’s staff created a discharge care plan for Resident 3.  CMS Ex. 10 at 8; CMS Ex. 13 at 13; see CMS Ex. 1 at 22.  That day, Petitioner also added gait training to Resident 3’s physical therapy.  P. Exs. 2, 3 at 4.

On April 15, 2019, Resident 3’s physician certified Resident 3’s eligibility to receive home health care services.¹⁵  The physician noted that Resident 3 needed these services due to his generalized muscle weakness, osteoarthritis, and unspecified abnormalities of gait and mobility.  P. Ex. 8.  The physician noted that Resident 3 required the assistance of another person with his activities of daily living; and he needed a one-person assist, a wheelchair, and a transport van to leave the home.  P. Ex. 8.

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Also, on April 15, 2019, Resident 3’s physician signed a “home healthcare order” for Resident 3 to receive PT and OT.  P. Ex. 7.

On April 16, 2019, Resident 3 met with a Care Coordinator from the Illinois Department on Aging.  On that date, Resident 3 signed a form, indicating that he consented to receive services through the Community Care Program.  P. Ex. 5.

On April 18, 2019, Social Services, through the nurse practitioner, submitted an order for a heavy duty wheelchair for Resident 3’s home use.  P. Ex. 6.  The nurse indicated a “Start Date” of April 19, 2019, on the form.  P. Ex. 6.

On April 16 and 18, 2019, Resident 3 went to Petitioner’s Administrator because he was worried about his girlfriend who was hospitalized, and he wished she could be admitted to Petitioner’s facility so they could be together.  CMS Ex. 18 at 1, 7, 8.

The record contains a Social Services note dated April 19, 2019, at 5:00 p.m., which was recorded as a late entry on April 22, 2019, at 2:03 a.m.  The note documents: 

[Resident 3] left the facility AMA [against medical advice].  [Resident 3] had d/c orders in place, home health setup, but resident did not have a ride home.  Resident ask [sic] a family member in the facility to take him home; resident did wait for oxygen to come from Lincare.  [Resident 3] did not agree to sign the AMA form before exiting the facility.

CMS Ex. 10 at 2; see P. Ex. 10. 

A nursing note dated April 19, 2019, at 5:39 p.m. documents that Resident 3 was discharged home AMA at 5:00 p.m.  The note states that Resident 3 left with oxygen and a wheelchair, and that no medications were sent with him.  CMS Ex. 10 at 1. 

During the survey, Surveyor Jennifer Roos interviewed Resident 3 and several of Petitioner’s staff regarding the circumstances of Resident 3’s departure from the facility on April 19, 2019, and their statements are contained in her survey notes.  CMS Ex. 9 at 2-3.  Surveyor Roos interviewed Resident 3 on April 23, 2019.¹⁶  CMS Ex. 9 at 2.

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In her declaration, Surveyor Roos cited her survey notes in testifying as to what Resident 3 told her during their interview: 

[Resident 3] stated that he did not want to stay at the facility after receiving a release from his doctor in January, but he did so because facility staff told him he needed more therapy.  He explained that he requested to be discharged more urgently three weeks before our interview, after receiving news that his girlfriend was seriously ill and may die soon.  [Resident 3] said that he asked the administrator to arrange for his discharge to his home, and she told him she would set up home health services, oxygen, a wheelchair, and transportation in a facility van.  [Resident 3] lamented, “Then, nothing was happening, they kept putting me off and kept putting me off, not setting anything up for me to go home.  Then all of a sudden they told me they couldn’t provide transportation when I went home.

CMS Ex. 53 at 3; see CMS Ex. 1 at 4, 18; CMS Ex. 9 at 2. 

Surveyor Roos also testified that Resident 3 explained why he suddenly left the facility: 

[Resident 3] stated that on April 19, 2019, he was informed that . . . [his girlfriend] likely had only 24 to 48 hours left to live.  [Resident 3] told the administrator that he wished to leave immediately, but she replied that she could not make arrangements quickly enough for him to be discharged, “even though she was suppose[d] to be working on it the last three months.”

CMS Ex. 53 at 3; see CMS Ex. 9 at 2; P. Ex. 9.  Surveyor Roos testified that Resident 3 was determined to see his ill girlfriend, so he proceeded to make arrangements on his own.  Resident 3 told Surveyor Roos that a resident gave him his wheelchair, and another resident’s husband offered him a ride home.  Petitioner arranged for the delivery of portable oxygen, which arrived as Resident 3 was about to leave.  Resident 3 then left the facility without being formally discharged, AMA, and without signing AMA papers.  CMS Ex. 53 at 3; see CMS Ex. 9 at 2; CMS Ex. 10 at 1.

According to Surveyor Roos, Resident 3 stated that his girlfriend passed away before he arrived, and he was “heartbroken” and “very depressed.”  Resident 3 told Surveyor Ross that he had “been home about a week now” and that “the facility never did set up home health for [him.]”  CMS Ex. 53 at 3; see CMS Ex. 9 at 2.

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On April 23, 2019, Surveyor Roos interviewed Petitioner’s Social Services Director and the nurse practitioner who had treated Resident 3.  CMS Ex. 9 at 3.  In her declaration, Surveyor Roos cited her survey notes in testifying as to what they told her.  According to Surveyor Roos, the Social Services Director stated, “About a week ago [Resident 3] wanted to leave but since he didn’t have transportation we didn’t feel safe with letting him discharge to home.”  CMS Ex. 53 at 3; see CMS Ex. 9 at 3.  In addition, Surveyor Roos documented in her survey notes that the Social Services Director also stated, “I was aware when I took over that he had an order to go home in January.  He had an incident after he got the order where he declined and needed more therapy so he wasn’t ready to go home.  Then, he wouldn’t wait for his w/c and oxygen to be set up he just wanted to leave.”  CMS Ex. 9 at 3. 

In their interview, the nurse practitioner told Surveyor Roos, “I’m not sure what happened with a discharge order back in January.  I feel like with home health assistance he would have been ok with going home.  I thought he was set up to go home last Thursday or Friday.”  CMS Ex. 53 at 3-4; see CMS Ex. 9 at 3. 

On April 24, 2019, Surveyor Roos interviewed Petitioner’s Administrator, Ms. Swaar.  CMS Ex. 9 at 3.  As testified by Surveyor Roos in her declaration,

the facility administrator verified that they did not complete a discharge summary for [Resident 3], and that neither his medications nor documentation of his prescriptions were sent home with him.  She said that [Resident 3] received his oxygen before leaving, but that home health services and delivery of a wheelchair had not been arranged for him.  The administrator further stated, “We told him he couldn’t leave without a proper wheelchair.  On 4/19/19 he insisted on leaving that day and he didn’t have family to transport him so he had to sign AMA papers if he wanted to leave.  We were aware from admission that he planned to discharge home.

CMS Ex. 53 at 3; see CMS Ex. 9 at 3; P. Ex. 9.¹⁷

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On April 29, 2019, at 11:23 a.m., Surveyor Roos interviewed Resident 3 again.  CMS Ex. 8 at 4.¹⁸  Resident 3 told Surveyor Roos that Petitioner had not sent any medications home with him and had not given him a list of his medications.  Resident 3 said that he was out of several medications.  CMS Ex. 8 at 4; see CMS Ex. 20. 

Surveyor Roos interviewed Resident 3’s physician, Dr. Kureishy, on April 29, 2019.  In her survey notes, she documented that Dr. Kureishy stated the following:

[Resident 3] had been wanting to go for a while but his ortho said no he wasn’t able to care for himself.  Then we felt like it was getting better and he had the problem with the torn meniscus.  He was very difficult to work with.  He was not compliant.  I was on vacation with [sic] he left AMA.  I had forgotten about the discharge order from January.  I don't know if that would still be an active order or not.  He definitely needs his meds but when you leave AMA then you are not entitled to your medications.  However, at the hospital we usually send the meds with them because they need to take their medications.

CMS Ex. 21 at 1. 

Analysis

A resident of a SNF is guaranteed the rights to a “dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility.”  42 C.F.R. § 483.10(a).  Subsection 483.10(f) addresses the right to self-determination and provides that “[t]he resident has the right to and the facility must promote and facilitate resident self-determination through support of resident choice, including but not limited to the rights specified in paragraphs (f)(1) through (11) of [subsection 483.10(f)].”  Among the rights listed are the following: 

(1) The resident has a right to choose activities, schedules (including sleeping and waking times), health care and providers of health care services consistent with his or her interests, assessments, plan of care and other applicable provisions of this part.  

(2) The resident has the right to make choices about aspects of his or her life in the facility that are significant to the resident.

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(3) The resident has a right to interact with members of the community and participate in community activities both inside and outside the facility.

*        *        *

(8) The resident has a right to participate in other activities, including social, religious, and community activities that do not interfere with the rights of other residents in the facility.

42 C.F.R. § 483.10(f)(1)-(3), (8).

With respect to a resident’s discharge, a SNF must comply with the discharge planning requirements found at 42 C.F.R. § 483.21(c)(1)(i)-(ix).  These regulations provide:

(c) Discharge planning –

(1) Discharge planning process.  The facility must develop and implement an effective discharge planning process that focuses on the resident’s discharge goals, the preparation of residents to be active partners and effectively transition them to post-discharge care, and the reduction of factors leading to preventable readmissions.  The facility’s discharge planning process must be consistent with the discharge rights set forth at § 483.15(b) as applicable and –

(i) Ensure that the discharge needs of each resident are identified and result in the development of a discharge plan for each resident.  

(ii) Include regular re-evaluation of residents to identify changes that require modification of the discharge plan.  The discharge plan must be updated, as needed, to reflect these changes.  

(iii) Involve the interdisciplinary team, as defined by § 483.21(b)(2)(ii), in the ongoing process of developing the discharge plan.  

(iv) Consider caregiver/support person availability and the resident’s or caregiver's/support person(s) capacity and capability to perform required care, as part of the identification of discharge needs.  

(v) Involve the resident and resident representative in the development of the discharge plan and inform the resident and resident representative of the final plan.  

(vi) Address the resident’s goals of care and treatment preferences.

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(vii) Document that a resident has been asked about their interest in receiving information regarding returning to the community.  

(A) If the resident indicates an interest in returning to the community, the facility must document any referrals to local contact agencies or other appropriate entities made for this purpose.  

(B) Facilities must update a resident’s comprehensive care plan and discharge plan, as appropriate, in response to information received from referrals to local contact agencies or other appropriate entities.  

(C) If discharge to the community is determined to not be feasible, the facility must document who made the determination and why.  

(viii) For residents who are transferred to another SNF or who are discharged to a HHA, IRF, or LTCH, assist residents and their resident representatives in selecting a post-acute care provider by using data that includes, but is not limited to SNF, HHA, IRF, or LTCH standardized patient assessment data, data on quality measures, and data on resource use to the extent the data is available. The facility must ensure that the post-acute care standardized patient assessment data, data on quality measures, and data on resource use is relevant and applicable to the resident's goals of care and treatment preferences.  

(ix) Document, complete on a timely basis based on the resident’s needs, and include in the clinical record, the evaluation of the resident’s discharge needs and discharge plan.  The results of the evaluation must be discussed with the resident or resident's representative.  All relevant resident information must be incorporated into the discharge plan to facilitate its implementation and to avoid unnecessary delays in the resident's discharge or transfer.

42 C.F.R. § 483.21(c)(1)(i)-(ix).

There is no dispute that, from the time of his admission in November 2018, Resident 3 expressed a desire to leave the facility, and made this known to Petitioner’s staff on several occasions.  Petitioner acknowledges that Resident 3, from the time he was admitted, expected to be discharged to the community, and that it “was aware of this goal.”  P. Br. at 7 (citing MDS assessment dated November 18, 2018).  In fact, Petitioner’s initial care plan included care plan approaches with a start date of November 12, 2018 (Resident 3’s admission date), which were specifically meant to facilitate the development of his discharge plan with his involvement.  Also, the care plan set, as a long-term goal with a target date of February 12, 2019, that Resident 3 would communicate his understanding of the discharge plan and describe the desired outcome

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by the next review date.  CMS Ex. 10 at 8; CMS Ex. 13 at 13.  Although no discharge date was stated in the care plan, staff noted that it was “impending.”  Id.

Petitioner does not deny that its staff made no efforts to start the discharge planning process for Resident 3, in accordance with either 42 C.F.R. § 483.21(c)(1) or Resident 3’s initial care plan.  Petitioner offered no evidence that it carried out any of the care planned approaches or held even preliminary discussions with Resident 3 related to planning his discharge leading up to and immediately following the January 19, 2019 discharge order. 

It is undisputed that, even though Resident 3’s physician issued a discharge order on January 19, 2019, Resident 3 was not discharged.  There is also no dispute that Petitioner had not engaged in any discharge planning for Resident 3 in connection with the January 2019 discharge order. 

Petitioner asserts that Resident 3 experienced a change in his condition, i.e., a torn meniscus, which prevented his discharge and required a change to his “discharge plan.”  P. Br. at 7.  I note that Resident 3’s surgeon noted that Resident 3’s meniscal tear could be old or new.  Additionally, the edema that was first observed as present was observed prior to and during Dr. Kureishy’s examination on January 18, 2019, which still resulted in the discharge order of January 19, 2019.  It is unclear from the medical records what change in condition, if any, was the basis for delaying further discharge planning.  Petitioner offers no explanation as to what happened with the January 19, 2019 discharge order, or whether Dr. Kureishy was even advised that Resident 3 would not be discharged.  Petitioner simply asserts that the order became moot. 

For purposes of summary judgment, I will accept Petitioner’s claim that the January 19, 2019 discharge order became moot, and the timeline for Resident 3’s discharge changed due to a change in his condition resulting from a meniscal tear.¹⁹

At the time of the February 18, 2019 MDS assessment, Resident 3 had not changed his mind about wanting to leave, for the MDS again noted his goal was that he expected to be discharged to the community.  Once again, there is no evidence that Petitioner’s staff took any steps around that time to begin planning for Resident 3’s discharge. 

According to Petitioner, Resident 3’s March 30, 2019 MDS indicated that active discharge planning was occurring for Resident 3 to return to the community, and there had been a referral to the local contact agency.  P. Br. at 9; CMS Ex. 12 at 7-8.  Petitioner points to the actions taken by staff in April 2019 as evidence that it “properly managed”

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Resident 3’s discharge (P. Br. at 22), and thus complied with the regulatory requirements governing the discharge planning process.

For purposes of summary judgment, I accept as true that, in the March 30, 2019 MDS, it is indicated that active discharge planning was occurring for Resident 3 and that Petitioner’s staff had contacted a local community organization regarding his discharge.  Nevertheless, as I explain below, I still conclude that the undisputed evidence establishes Petitioner’s noncompliance with the discharge planning requirements of 42 C.F.R. § 483.21(c)(1).

Petitioner’s argument necessitates a finding that it could not begin planning Resident 3’s discharge due to his still needing PT and OT during February and March 2019; however, the record supports the opposite conclusion.  I am not required to draw unreasonable inferences in favor of Petitioner when deciding whether summary judgment is appropriate.  Brightview Care Ctr., DAB No. 2132 at 10 (2007); Cedar Lake Nursing Home, DAB No. 2344 at 7 (2010).  Here, Petitioner offered no evidence, such as a physician’s order or care plan directive, that Resident 3’s continuing need for PT and OT somehow presented an obstacle which affected his discharge planning process.  To the contrary, the record shows that Dr. Kureishy had ordered PT and OT for Resident 3 during November 2018 and December 2018, and he continued the orders when he examined Resident 3 on January 18, 2019 and issued a discharge order.  The physician’s January 19, 2019 discharge order stated: “Resident may discharge home with current meds and therapy services.”  CMS Ex. 11 at 1, 9.  It is evident from the order that Dr. Kureishy determined that Resident 3 still needed “therapy services,” but also determined that such services presented no impediment to his being discharged.  I find that Petitioner offered no evidence that Resident 3’s discharge planning could not go forward, or was somehow hindered, due to his continuing need to receive PT and OT.

Further, the fact that Resident 3 was not discharged in January 2019 did not somehow relieve Petitioner of its duty to comply with the discharge planning requirements set forth at 42 C.F.R. § 483.21(c)(1).  Petitioner does not dispute that, prior to Dr. Kureishy’s January 2019 discharge order, no preparations for Resident 3’s eventual discharge had even begun.

Petitioner ignores the fact that the discharge planning requirements at 42 C.F.R. § 483.21(c)(1) require that a facility “develop and implement an effective discharge planning process,” (emphasis added) and that this process comprises several elements, which are set out at subsections (i) – (ix).  Among other things, Petitioner was required to identify Resident 3’s discharge needs, develop a discharge plan, and regularly re-evaluate Resident 3 to identify any changes that required the discharge plan to be updated.  Petitioner was also required to involve Resident 3 in the development of his discharge plan and inform him of the final plan.  Further, Petitioner was required to document and timely complete, based on Resident 3’s needs, the evaluation of his discharge needs and

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the discharge plan.  42 C.F.R. § 483.21(c)(1)(i), (ii), (v), and (ix).  If his discharge was “determined to not be feasible,” then Petitioner was required to “document who made the determination and why.”  42 C.F.R. § 483.21(c)(1)(vii)(C).

Petitioner was aware from the time of Resident 3’s admission in November 2018 that he expected to be discharged to the community, his discharge was “impending,” and that returning home was Resident 3’s goal.  Given Resident 3’s express wishes to discharge home, Petitioner had the duty under the regulations to begin developing an effective plan for Resident 3’s eventual discharge with his involvement.

However, this did not occur.  Petitioner offered no documentation showing that it had identified and evaluated Resident 3’s discharge needs at all, or even created a plan with Resident 3 at any time during November 2018 up to January 19, 2019, the date of the discharge order.  Petitioner’s failure to initiate any discharge planning whatsoever plainly establishes its noncompliance with 42 C.F.R. § 483.21(c)(1).

Moreover, Petitioner asserts that Resident 3 was not discharged on January 19, 2019, because he had experienced a change in his condition.  Pursuant to 42 C.F.R. § 483.21(c)(1)(vii)(C), because Resident 3’s discharge was determined not to be “feasible,” Petitioner was required to provide documentation as to who determined that Resident 3 would not be discharged and the reasons why.  Petitioner has not offered any documentation on these points, and its failure to do so establishes noncompliance with 42 C.F.R. § 483.21(c)(1)(vii)(C).

Petitioner points to Resident 3’s March 30, 2019 MDS and relies on the actions taken during April 2019 to show that it was planning Resident 3’s discharge.  As stated above, Petitioner took the following steps in April 2019:  created a care plan for Resident 3’s discharge dated April 12, 2019 (CMS Ex. 10 at 8; CMS Ex. 13 at 3); continued Resident 3’s OT and PT sessions, and added gait training to his PT on April 12, 2019 (P. Exs. 2, 3); obtained, on April 15, 2019, an “Eligibility Certification for Home Health Services,” as well as a “Home Healthcare Order” from Resident 3’s physician which approved PT and OT (P. Exs. 7, 8); and ordered a wheelchair for Resident 3’s home use on April 18, 2019, with a “Start Date” of April 19, 2019 (P. Ex. 6).  P. Br. at 9-10.  Petitioner also notes that, on April 16, 2019, Resident 3 met with a Care Coordinator from the Illinois Department of Aging in anticipation of his planned discharge, and he signed a form indicating that he consented to receive services through the Community Care Program.  P. Ex. 5.

While the aforementioned actions were no doubt necessary, they do not, in and of themselves, establish Petitioner’s compliance with the regulatory requirements on this set of facts.  Petitioner cited no evidence to show that, around the time of the March 30, 2019 MDS, its staff had timely evaluated Resident 3’s discharge needs or even communicated with him regarding discharge planning.  In fact, during the period between the March

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2019 MDS and the creation of the discharge care plan on April 12, 2019, there is nothing in the record showing that Petitioner’s staff had even started working with Resident 3 to plan his discharge.

In her declaration, Surveyor Roos testified that during their April 23, 2019 interview, Resident 3 said he had not wanted to stay at the facility after receiving the discharge order in January 2019, but that he did because staff told him he needed more therapy.  Resident 3 told Surveyor Roos that “he requested to be discharged more urgently three weeks before [their] interview.”  According to Surveyor Roos, Resident 3 asked Petitioner’s Administrator “to arrange for his discharge to his home” and Petitioner’s Administrator told Resident 3 that “she would set up home health services, oxygen, a wheelchair, and transportation in a facility van.”  Surveyor Roos noted that Resident 3 complained that “‘[t]hen, nothing was happening, they kept putting me off and kept putting me off, not setting anything up for me to go home.’”  CMS Ex. 53 at 3; see CMS Ex. 1 at 4, 18; CMS Ex. 9 at 2.  Additionally, Petitioner’s Social Services Director confirmed to Surveyor Roos that, about a week earlier (i.e., a week prior to their April 23, 2019 interview), Resident 3 had wanted to leave the facility, but because he didn’t have any transportation arranged, they “didn’t feel safe with letting him discharge to home.”  CMS Ex. 53 at 3.

Although Resident 3’s statements to the surveyor are hearsay, I note that Petitioner has not disputed Resident 3’s claim that its staff only began moving forward with planning his discharge after he more urgently requested to be discharged sometime in early April.  Nor did Petitioner dispute Resident 3’s statement that, in response, the Administrator told him that home health services, oxygen, a wheelchair, and transportation would be set up for him.  I infer from these undisputed facts that no discharge planning process was implemented for Resident 3, and that Petitioner’s staff only started to focus on Resident 3’s anticipated discharge after being prodded into action by Resident 3 himself.  And then, according to Resident 3, he complained that he was again ignored, and nothing was happening with his discharge arrangements.  Consistent with Resident 3’s statements, the Social Services Director told the surveyor that Resident 3 had wanted to leave a week earlier (i.e., around April 16, 2019), but could not be discharged due to the lack of transportation arrangements.  Petitioner also does not dispute the statement of its Social Services Director, as recorded by the surveyor.

Petitioner asserts that Resident 3’s “sudden need to leave the facility” AMA on April 19, 2019, “frustrated” their efforts to finalize his discharge arrangements.  P. Br. at 11.  Resident 3’s departure on April 19^th does not excuse the lack of prior discharge planning.  The regulation requires a facility to “develop and implement an effective discharge planning process” for its residents, which as applied to this set of facts, ought to have occurred long before the day of April 19 when Resident 3 left the facility AMA.  42 C.F.R. § 483.21(c)(1).  As part of the discharge planning process, the regulations

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obligated Petitioner to carry out discharge planning in a timely manner and to avoid unnecessary delays.  42 C.F.R. § 483.21(c)(1)(ix).

The undisputed facts show that Petitioner failed to plan for Resident 3’s discharge in a timely manner as required by the regulations.  From the time of his admission in November 2019, Petitioner was aware of Resident 3’s unwavering desire to discharge home and which Resident 3 expressed to staff at various times.  By early April, when Resident 3 made known to Petitioner that he urgently wished to leave, it had already been incumbent upon Petitioner to implement an effective discharge planning process, which included timely identifying and evaluating Resident 3’s needs.  However, as the undisputed facts show, nothing was done to move Resident 3’s discharge planning forward until April 12, 2019, when a discharge care plan was created.

Further, Petitioner’s characterization of Resident 3’s decision to leave on April 19, 2019, as “sudden” ignores the Social Services Director’s statement to the surveyor that Resident 3 had wished to leave on April 16, but he could not because his transportation had not been finalized.  In light of that statement, which Petitioner does not dispute, Resident 3’s decision to leave on April 19 was certainly not unexpected.  And yet, Petitioner does not dispute that, as of April 19, its staff still had not finalized Resident 3’s facility transportation or obtained a wheelchair for him, leaving Resident 3 to arrange for these services himself.  See P. Ex. 9 (Petitioner’s Administrator’s undated statement noting that Resident 3 said he wanted to leave “right now” and had a ride, and that, among other things, the Administrator said the facility van was unavailable and a wheelchair was still being arranged).  Rather than acknowledging its own lax efforts in planning Resident 3’s discharge, Petitioner suggests that Resident 3 himself is to blame for the situation since he “refus[ed] to even wait for facility transport or other services to be finalized.”  P. Br. at 13.

CMS argues that, because of Petitioner’s failures with respect to Resident 3’s discharge planning, Resident 3 suffered actual harm “in the form of emotional and psychological trauma” due to his inability to be with his girlfriend prior to her death.  CMS Br. at 9, 18.  I find that Resident 3 was harmed under these very specific facts and circumstances, because he experienced emotional and psychological distress due to Petitioner’s failure to take appropriate and timely steps to honor his desire to be discharged home.  Resident 3 was not in prison.  On a multitude of occasions spanning over five months, he told staff that he wished to go home, but Petitioner failed to carry out its regulatory obligations regarding his discharge planning.  Petitioner essentially thwarted Resident 3’s clearly expressed goal to be discharged and in doing so, violated his right to self-determination, as addressed below.  As such, I decline to rule on whether Resident 3’s actual harm was further compounded by his inability to be with his ill girlfriend prior to her passing and should be attributed to Petitioner’s cited deficiency.

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The undisputed evidence establishes that although Petitioner began working on Resident 3’s discharge in April 2019, its discharge planning efforts were deficient and fell far short of its duty to develop and implement an effective discharge planning process which, among other things, entailed documentation and timely evaluation of his discharge needs.  Petitioner was therefore not in substantial compliance with 42 C.F.R. § 483.21(c)(1).

3.  Petitioner was not in substantial compliance with 42 C.F.R. § 483.10(f)(1)-(3), (8) (Tag F561), because the undisputed evidence shows that it failed to promote Resident 3’s rights to self-determination through support of resident choice relating to planning Resident 3’s discharge.

In addition to alleging that Petitioner violated 42 C.F.R. § 483.21(c)(1), CMS also alleged that Petitioner violated the regulations at 42 C.F.R. § 483.10(f)(1)-(3), (8), which govern self-determination.  Specifically, CMS alleged in the SOD that Petitioner “failed to ensure a resident’s choice to discharge home was honored” and that “[t]his failure resulted in [Resident 3] arranging his own transportation and leaving the facility AMA . . . causing [Resident 3] emotional distress for not getting home in time before losing his dying significant other.”  CMS Ex. 1 at 2. 

Petitioner argues that “[a]t all times, [Resident 3’s] right to self-determination was respected, up to and including, allowing [him] to leave, even against medical advice.  [Resident 3] expressed his desire to discharge home and the Facility worked hard to make that goal a safe reality.”  P. Br. at 11-12. 

I have already discussed Petitioner’s failure to carry out its discharge planning duties with respect to Resident 3, which included failing to timely evaluate Resident 3’s discharge needs and timely plan his discharge.  Only after Resident 3 expressed an urgent desire to leave in April 2019 did Petitioner finally begin working on his discharge.  And even then, Petitioner continued to delay in making any preparations on his behalf.  While it is true that Petitioner permitted Resident 3 to leave on April 19, 2019, and did not get in his way, Petitioner ignores the fact that, as of that date, Petitioner still had not finalized his discharge arrangements.

Petitioner’s deficient efforts with respect to planning Resident 3’s discharge under these facts and circumstances thus implicated Resident 3’s right to self-determination.  Petitioner failed to respect and honor his expressed wish and goal to discharge home.  Accordingly, I conclude that Petitioner failed to promote Resident 3’s rights to self-determination, in violation of 42 C.F.R. § 483.10(f)(1)-(3).

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4. Because Petitioner’s alleged violation of 42 C.F.R. § 483.21(c)(2) (Tag F661) was not a basis for the CMP imposed against Petitioner, I decline to review it.

In their briefs, the parties also discussed Petitioner’s alleged noncompliance with 42 C.F.R. § 483.21(c)(2) (Tag F661), which requires a facility to provide a resident with a discharge summary when it anticipates the resident’s discharge.  However, because this alleged deficiency was not a basis for the imposition of the CMP, I decline to address Tag F661.  42 C.F.R. § 498.3(b)(13) (limiting review to findings that result in CMS imposing a penalty).  

5. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d) (Tag F689), because the undisputed evidence shows that it failed to ensure adequate supervision of Resident 12 to prevent a foreseeable accident.

Resident 12 – Facts relating to April 21, 2019 fall from mechanical lift

The following facts relating to Resident 12 and her fall on April 21, 2019, are taken from the documents in the record.  Many of the facts are from Resident 12’s records, which Petitioner created and maintained. 

Resident 12, a 54-year-old female, was admitted to Petitioner’s facility on June 3, 2012.  CMS Ex. 24 at 1.  She suffered from multiple diagnoses, including frontotemporal dementia, contracture of both knees, unspecified psychosis, depressive and anxiety disorders, chronic pain, unspecified lack of coordination, abnormal posture, and personal history of traumatic brain injury.  CMS Ex. 24 at 2. 

According to a MDS assessment dated April 4, 2019, Resident 12 had a Brief Interview for Mental Status score of 12, which indicated that she was cognitively intact.  P. Ex. 16 at 3.  The assessment indicated that Resident 12 had not exhibited inattention, disorganized thinking, or an altered level of consciousness.  P. Ex. 16 at 4.  Resident 12’s balance during transitions (moving from seated to standing position, surface-to-surface transfers) and walking was not assessed since she had not engaged in these activities.  Petitioner’s staff assessed Resident 12 as having range of motion impairments of her upper and lower extremities, which could affect either her daily functions or put her at risk of injury.  P. Ex. 16 at 8.  According to the MDS, Resident 12 used a wheelchair, and she had not had any falls since her admission to the facility.  P. Ex. 16 at 8, 9.

The record contains a care plan for Resident 12, originally dated July 20, 2018, which addresses her functional ability to perform ADLs.  CMS Ex. 26.  An intervention dated July 20, 2018, stated “[Resident 12] requires TOTAL/HOYER staff participation with transfers.”  CMS Ex. 26 at 8; P. Ex. 17.  Petitioner’s staff reviewed and updated the care plan on July 22, 2018, and in October, November, and December of 2018.  At the time of

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the October 2018 update, staff noted that Resident 12 “needs assistance with her ADL self care performance [related to] Dementia, Depression, Abnormal Posture, Contracture on [Left Extremity], and Anxiety among others.”  CMS Ex. 26 at 2.  Three days before Resident 12 fell on April 21, 2019, Petitioner’s staff reviewed and updated her care plan on April 18, 2019.  The care plan interventions in effect on April 18, 2019, stated that Resident 12 required extensive staff participation with bathing, repositioning and turning in bed, dressing, personal hygiene, and toileting.  CMS Ex. 26 at 2-3.  Additionally, staff noted that “[Resident 12] requires total staff participation with transfers.”  CMS Ex. 26 at 3. 

According to the record, Resident 12 went to the emergency department of the local hospital on the morning of April 21, 2019, after she fell four feet out of a Hoyer lift.  CMS Ex. 25 at 2; CMS Ex. 27 at 1; see CMS Ex. 23 at 2.  Emergency room staff noted that Resident 12 hit her head on a table leg, and she sustained a 4 cm laceration to her forehead and a 1 cm laceration to her left ear, which required sutures.  CMS Ex. 25 at 2, 8.  Resident 12 returned to the facility in the afternoon.  See CMS Ex. 23 at 1; CMS Ex. 27 at 4. 

On April 21, 2019, Petitioner submitted an initial report of Resident 12’s fall to the state agency.  P. Ex 19.  With the report, Petitioner submitted First On the Scene Reports dated April 21, 2019, from V7, the Certified Nursing Assistant (CNA) who was attempting to transfer Resident 12 at the time she fell, and from V6, a Licensed Practical Nurse (LPN) who was the attending nurse.  P. Ex. 19 at 3-4; see CMS Ex. 28 at 2. 

In her report, V7 stated that she witnessed the fall.²⁰  The CNA wrote that she “was getting [Resident 12] up for the day.  I attached all four loops on the hoyer.  [Resident 12] was grabbing the sides of the sling.  When I started lifting her, everything was still intact.  Then she slipped out the side of the sling.”  P. Ex. 19 at 3.  The CNA stated that she informed another CNA and a nurse of Resident 12’s fall.  P. Ex. 19 at 3. 

In her report, V6, the attending nurse, stated that she had not witnessed Resident 12’s fall, and that V7 and another nurse (who, according to the Employee Identity Key, was V5) were on the scene when she arrived at Resident 12’s room.  V6 stated that Resident 12 had a large laceration on her forehead and was transported to the hospital.  V6 notified Resident 12’s physician, power of attorney, Petitioner’s Administrator, and the DON of Resident 12’s fall.  According to V6, V7 told her: “It all happen [sic] so fast.  I had everything hooked up!  She tries to help by putting her hands on the top part of the sling sometimes & I have to tell her to cross her arms.”  P. Ex. 19 at 4. 

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On April 26, 2019, Petitioner submitted a final report to the state agency.  CMS Ex. 28.  According to the report, V7 was interviewed regarding the incident.  The report stated, among other things:

[V7] was transferring [Resident 12] using mechanical lift . . . . While attaching sling loops properly to mechanical lift, [V7] did need to instruct [Resident 12] not to touch them as she was trying to help.  [V7] started to raise [Resident 12] in the sling and right bottom loop came undone and she started to slip out.  [V7] attempted to catch her, but was unable to do so. [V7] immediately called for help and [LPN] responded.  Head to toe assessment was done and laceration to the forehead was noted. . . . first aid provided.

CMS Ex. 28 at 1.  The report noted that the mechanical lift, including the sling, were assessed, and no fraying or other issues were noted.  When interviewed, Resident 12 said she remembered falling and being on the floor, but she did not remember getting into the sling.  When asked whether she could remember any issues with her transfers in the sling, Resident 12 responded “sometimes I hold on to it.”  CMS Ex. 28 at 2.  The report noted that another CNA who was called to assist with Resident 12’s fall stated that she had not really had any problems with transferring Resident 12, but “[Resident 12] always wants to hold two bottom slings when she transfers.”  CMS Ex. 28 at 2.  The report determined that, based on interviews with staff and Resident 12, “the root cause of [Resident 12’s] laceration is her fall on 4/21.”  CMS Ex. 28 at 2.  The report concluded further: “Root cause of fall is related to [Resident 12] pulling with her sling causing loop to come undone.  [Resident 12] has staff supervision during the fall and has been re-instructed not to touch sling and to keep arms crossed during transfer.”  CMS Ex. 28 at 2.  According to the report, Resident 12’s care plan was updated, and all staff were re-educated on doing a proper mechanical lift transfer.  CMS Ex. 28 at 2. 

During the survey, Surveyor Amanda Cebuhar interviewed V7 and V5 regarding Resident 12’s accident.  CMS Ex. 54 at 2-3.  In her declaration, Surveyor Cebuhar testified that she interviewed V7 on April 24, 2019.  Surveyor Cebuhar testified:

At that time, [V7] told me that she attended to [Resident 12] by herself on the morning of April 21, 2019.  She helped [Resident 12] get dressed, then put the Hoyer lift sling under her.  She hooked the straps of the sling to the Hoyer lift with [Resident 12’s] assistance, stating “[Resident 12] likes to help.”  V7 believes that one of the loops came undone while [Resident 12] was being lifted, and then she fell out of the sling and hit her head at the base of the Hoyer lift.  V7 stated that it ‘is normal for them to do Hoyer lifts by themselves

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because they don’t want [to be] yelled at or be given a hard time for working with another CNA.

CMS Ex. 54 at 2 (citing CMS Ex. 23 at 2).

On April 24, 2019, Surveyor Cebuhar also interviewed V5, the nurse who assisted V7 after Resident 12’s accident.  Surveyor Cebuhar testified:

V5 stated that he was called into [Resident 12’s] room after her fall and he found . . . a ‘huge laceration’ on her forehead.  V5 said that V7 was ‘unsure how’ [Resident 12] fell out of the lift sling onto the floor.  V5 stated that there should always be two staff members assisting when doing a mechanical lift transfer, but that V7 attempted to transfer [Resident 12] by herself.

CMS Ex. 54 at 2 (citing CMS Ex. 23 at 2).

Surveyor Cebuhar interviewed V7 again on May 1, 2019, “to obtain her response to [Petitioner’s] incident report, which stated that V7 attached the sling loops ‘properly’ to the mechanical lift.”  CMS Ex. 54 at 3; see CMS Ex. 28 at 1.  As testified by Surveyor Cebuhar in her declaration,

V7 disputed the account in the incident report, stating that she was the only staff person in the room at the time of the accident and that [Resident 12] herself attached the sling loops to the mechanical lift.  V7 stated that ‘[Resident 12] would attach the sling loops to the mechanical lift all the time.’  V7 also denied that she checked that the loops were secure or instructed [Resident 12] not to touch to [sic] the loops.  V7 said that she thought two staff members were required to use the mechanical lift, but she did not ask another staff member for help because the nurses discouraged the CNAs from doing so.  V7 believed the accident may have resulted from a loop of the sling becoming ‘undone’ from the lift, causing [Resident 12] to fall.

CMS Ex. 54 at 3 (citing CMS Ex. 23 at 2-3).

Analysis

The quality of care regulation, 42 C.F.R. § 483.25, states generally that, “[b]ased on the comprehensive assessment of a resident, the facility must ensure that residents receive

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treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices . . . .” With respect to accident hazards and accidents, section 483.25(d) imposes the following obligations upon a facility:

(d) Accidents.  The facility must ensure that—
(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

42 C.F.R. § 483.25(d)(1)-(2).²¹

With respect to subsection 483.25(d)(1), the Board has held that a facility must address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or, where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  Maine Veterans’ Home - Scarborough, DAB No. 1975 at 10 (2005) (explaining the inherent standard of care in section 483.25(h)(1)).²²  The provisions of section 483.25(d) “come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm.”  Meridian Nursing Ctr., DAB No. 2265 at 10 (2009), aff’d sub. nom. Fal Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445 (7th Cir. 2010).  Further, pursuant to subsection 483.25(d)(2), a facility must “take all reasonable steps to

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ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003), aff’g Woodstock Care Ctr., DAB No. 1726 (2000)).  Though a facility has the flexibility to choose the methods of supervision and assistance used to prevent accidents, it must also “‘provide supervision and assistance devices that reduce known or foreseeable accident risks to the highest practicable degree, consistent with accepted standards of nursing practice.’” Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017) (quoting Century Care of Crystal Coast, DAB No. 2076 at 6-7 (2007), aff’d, Century Care of Crystal Coast v. Leavitt, 281 F. App’x 180 (4th Cir. 2008)).

In the SOD, the surveyors allege that Petitioner failed to comply with 42 C.F.R. § 483.25(d)(1)-(2) (Tag F689), because it “failed to safely transfer” Resident 12, and this violation “resulted in Resident 12 sustaining a forehead laceration and a left ear laceration requiring emergency care for sutures.”  CMS Ex. 1 at 30.

It is undisputed that on April 21, 2019, V7, without any assistance, was attempting to transfer Resident 12 using a mechanical lift.  During the transfer, Resident 12 slipped out of the sling and fell four feet, hitting her head and sustaining lacerations, for which she required sutures.

Petitioner argues that there is no evidence that “the incident was anything more than an unavoidable accident.”  P. Br. at 18.  In support of this position, Petitioner argues that V7 was properly trained and complied with the lift manufacturer’s recommendations and Petitioner’s own policy, neither of which required a two-person assist when using the mechanical lift.  In addition, Petitioner argues that, despite conflicting statements from V7 as to what happened, its own investigation confirmed that no “additional measures were necessary to maintain [Resident 12’s] safety.”  P. Br. at 19.

As discussed below, the undisputed facts establish that Petitioner did not adequately supervise Resident 12 to protect her from a foreseeable accident during a mechanical lift transfer.

I note that Petitioner is correct in that neither the lift manufacturer’s instructions (P. Ex. 14) nor its facility policy (CMS Ex. 29) explicitly requires that two persons are necessary to do a transfer with the mechanical lift.  The manufacturer’s instructions state:

The following instructions will allow any caregiver to perform safe and easy resident transfers.  The lift is intended for professional use by one trained operator.  This should not replace any current policies or procedures in place by the facility.  Additional help may be necessary when using the lift.

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P. Ex. 14.²³  Petitioner’s own policy related to using the mechanical lift, titled “Hoyer (Mechanical) Lift,” states: “A Hoyer (mechanical) lift assists staff to lift and move a resident as safely and as easily as possible.”  The policy describes the steps for doing a lift transfer, but it contains no requirement that the lift be operated by two persons.  CMS Ex. 29.

Petitioner does not dispute that its staff had assessed Resident 12 as having functional limitations which could affect either her daily functions or put her at risk of injury.  For her July 20, 2018 care plan, Petitioner’s staff assessed Resident 12 as requiring “TOTAL/HOYER staff participation with transfers,” and this intervention was continued when Petitioner’s staff reviewed and updated her care plan on July 22, 2018, and in October, November, and December of 2018.  When Petitioner’s staff updated Resident 12’s care plan on April 18, 2019, it was again noted that “[Resident 12] requires total staff participation with transfers.”  CMS Ex. 26 at 3.²⁴

However, despite this intervention, Petitioner asserts that Resident 12’s care plan “included the need a [sic] for mechanical lift during transfer” but “did not include the need for two persons.”  P. Br. at 18 (citing P. Ex. 17, CMS Ex. 26 at 3).  Evidently, in Petitioner’s view, the intervention that Resident 12 requires “total staff participation with transfers” did not mean that a two-person assist was required for transfers with the mechanical lift.  Although Petitioner has not offered any evidence as to what constitutes “total staff participation” for a transfer, I nevertheless accept for summary judgment purposes that Resident 12’s care plan permitted a mechanical lift transfer to be performed by one trained CNA. 

I accept for summary judgment purposes that V7 was trained in how to operate the mechanical lift, and that V7’s act of using the mechanical lift alone when transferring Resident 12 was within the parameters of Petitioner’s policy, the lift manufacturer’s manual instructions, and V7’s care plan.  However, accepting these assertions does not lead to a finding that adequate supervision was provided to Resident 12 on April 21, 2019, during the resident’s mechanical lift transfer.  Even if a one-person assist was permissible, if more supervision or another staff person was required to protect Resident 12 and minimize the risk of a foreseeable accident during the transfer, then Petitioner had the affirmative duty to provide these services.  In fact, the lift manufacturer

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acknowledged that there will be situations where more than one person may be needed to operate the lift, for it states “[a]dditional help may be necessary when using the lift.”  This statement, which Petitioner ignores, clearly contemplates that a case-by-case evaluation should be made as to the appropriateness of a one-person assist with the mechanical lift. 

In arguing that V7 appropriately transferred Resident 12 and that the accident was unforeseeable, Petitioner relies on its investigation, and, in particular, V7’s First On The Scene Report.  Petitioner acknowledges that V7’s statement conflicts with her description of Resident 12’s fall to Surveyor Cebuhar during two separate interviews, but Petitioner claims that Surveyor Cebuhar’s survey notes are “objectionable hearsay.”  P. Br. at 18. 

According to her report, V7 stated that she witnessed Resident 12’s fall.  V7 wrote that V7 “was getting [Resident 12] up for the day.  I attached all four loops on the hoyer.  [Resident 12] was grabbing the sides of the sling.  When I started lifting her, everything was still intact.  Then she slipped out the side of the sling.”  P. Ex. 19 at 3.  Petitioner submitted V7’s statement with its initial report to the state agency.

In its final report to the state agency, Petitioner stated, in pertinent part,

CNA [i.e. V7] was transferring [Resident 12] using mechanical lift. . . . While attaching sling loops properly to mechanical lift, [V7] did need to instruct [Resident 12] not to touch them as she was trying to help. [V7] started to raise [Resident 12] in the sling and right bottom loop came undone and she started to slip out.  [V7] attempted to catch her, but was unable to do so.

CMS Ex. 28 at 1.

During the survey, Surveyor Cebuhar interviewed V7 twice, and CMS offered the interview notes, which are contained in CMS Ex. 23.  In her declaration, Surveyor Cebuhar recounted V7’s statements, citing the interview notes.  CMS Ex. 54.  According to Surveyor Cebuhar’s declaration, in their April 24, 2019 interview, V7 stated that “[V7] attended to [Resident 12] by herself on the morning of April 21, 2019;” V7 “helped [Resident 12] get dressed, then put the Hoyer lift sling under her;” and V7 “hooked the straps of the sling to the Hoyer lift with [Resident 12’s] assistance, stating ‘Resident 12 likes to help.’”  CMS Ex. 54 at 2 (citing CMS Ex. 23 at 2).  Surveyor Cebuhar also stated that “V7 believes that one of the loops came undone while [Resident 12] was being lifted, and then she fell out of the sling and hit her head at the base of the Hoyer lift.  V7 stated that it ‘is normal for them to do Hoyer lifts by themselves because they don’t want [to be] yelled at or be given a hard time for working with another CNA.’”  CMS Ex. 54 at 2 (citing CMS Ex. 23 at 2).

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Because Petitioner’s version of the incident set forth in its final report to the state agency (in which Petitioner claimed that V7 attached the sling loops “properly”) was inconsistent with V7’s original narrative of what happened, Surveyor Cebuhar interviewed V7 again on May 1, 2019.  Surveyor Cebuhar testified as follows in her declaration:

V7 disputed the account in the incident report, stating that [V7] was the only staff person in the room at the time of the accident and that [Resident 12] herself attached the sling loops to the mechanical lift.  V7 stated that ‘[Resident 12] would attach the sling loops to the mechanical lift all the time.’  V7 also denied that she checked that the loops were secure or instructed [Resident 12] not to touch to [sic] the loops. . . . V7 believed the accident may have resulted from a loop of the sling becoming ‘undone’ from the lift, causing [Resident 12] to fall.

CMS Ex. 54 at 3 (citing CMS Ex. 23 at 2-3).

Petitioner recognizes that in the survey interviews, V7 gave a version of the incident which was inconsistent with her description in the First On The Scene Report.  However, Petitioner claims that the only evidence to support that Resident 12 manipulated the loops “was contained in the SOD and the Surveyor’s notes” and asserts also that the interview notes are hearsay and “conflict.”  P. Br. at 18.  According to Petitioner, “[m]ultiple interviews of Facility staff were conducted as part of this investigation, there was never indication given that [Resident 12] herself manipulated the sling or the loops at the time of this particular occurrence or any other times.”  P. Br. at 18. 

While the SOD and the surveyor’s notes are evidence, Petitioner fails to realize that Surveyor Cebuhar’s declaration also constitutes evidence.  In her declaration, Surveyor Cebuhar stated under penalty of perjury that during the survey of Petitioner, she “took notes to record my observations, interviews, and the results of my review of records.  It is my usual custom and practice to take and retain such notes in the regular course of conducting surveys.  True and accurate copies of the notes that I prepared, which contain true and accurate documentations of my observations and conversations with witnesses, are included in CMS Ex. 23.”  CMS Ex. 54 at 1-2.

Although Petitioner asserts that it was V7 who attached the loops and disputes V7’s statements to Surveyor Cebuhar that Resident 12 attached the sling loops herself, Petitioner failed to offer any testimony on this point, and did not request to cross-examine Surveyor Cebuhar.²⁵  It is undisputed that the only witnesses to Resident 12’s fall on

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April 21, 2019, were V7 and Resident 12.  If Petitioner disputed how V7 described the incident to Surveyor Cebuhar, Petitioner could have provided V7’s testimony in the form of an affidavit or declaration under penalty of perjury to refute that version.  Instead, Petitioner offered no testimony to refute Surveyor Cebuhar’s testimony that V7 said Resident 12 attached the sling loops to the lift herself and that Resident 12 would attach the loops to the lift “all the time.”  I note that V7, in her First On The Scene Report, and, when interviewed by Petitioner, described Resident 12 as “grabbing the sides of the sling” and “trying to help” such that V7 told her not to touch the loops.  Thus, while V7 gave different versions of what happened, it is noteworthy that during Petitioner’s own investigation and in her interviews with Surveyor Cebuhar, she consistently maintained that Resident 12 was not passive, but was involved with attaching the sling loops.  Further, in its final report to the state agency, Petitioner noted that Resident 12 admitted that “sometimes I hold on to [the sling]” during transfers.  CMS Ex. 28 at 2.  Petitioner concluded that the “[r]oot cause of fall is related to [Resident 12] pulling with her sling causing loop to come undone.  [Resident 12] has staff supervision during the fall and has been re-instructed not to touch sling and to keep arms crossed during transfer.”  CMS Ex. 28 at 2.  Inasmuch as Petitioner’s report recognizes that Resident 12 would try to help and would touch or pull on the sling, and had to be instructed not to do this, the report is not entirely inconsistent with V7’s statements to Surveyor Cebuhar.

In addition, Petitioner has also not refuted Surveyor Cebuhar’s testimony that V7 stated she did not check to verify that the sling loops were secure or instruct Resident 12 not to touch the loops.  CMS Ex. 53 at 3.  Given that Petitioner failed to offer any evidence to refute Surveyor Cebuhar’s testimony, I thus accept V7’s account of the incident as described in Surveyor Cebuhar’s declaration.

Contrary to what Petitioner argues, there is nothing about what happened during Resident 12’s transfer to suggest that Resident 12 had an unavoidable accident.  As the Board has explained:

For a risk to be foreseeable, it need not have been made obvious by having already materialized.  The regulation speaks in terms of ensuring that what is “practicable” and “possible” to do is done.  What is thus required of facilities is not prescience but reason and professional judgment in assessing what can be done to make residents (given their special needs) safe, through removing accident hazards,

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 providing appropriate devices, and ensuring adequate supervision.

Josephine Sunset Home, DAB No. 1908 at 14-15 (2004).  The undisputed evidence establishes that, at the time of the April 21, 2019 transfer, V7 was aware of Resident 12’s proclivity to help attach the sling to the mechanical lift.  Clearly, allowing Resident 12, who had significant physical and mobility limitations, to grab or attach the sling loops during the lift transfer process created the foreseeable possibility that the transfer could be jeopardized and expose her to the risk of injury.²⁶  Petitioner had the responsibility to provide supervision to Resident 12 to ensure that she did not touch the loops or interfere with their attachment in any way during a mechanical lift transfer.  However, V7 failed to supervise Resident 12 to ensure her safety.  By her own admission, V7 not only permitted Resident 12 to grab the sling loops, but also did nothing to prevent her from attaching them to the lift herself.  Further, V7 did not then confirm that the sling loops were properly secured.  As a result, a sling loop came undone, and Resident 12 fell four feet, hitting her head and suffering lacerations.

Petitioner asserts in its defense that Resident 12 “displayed no behaviors that placed her at risk” and “[t]here was absolutely nothing within [Resident 12’s] clinical record that would suggest that additional measures were necessary to maintain her safety, beyond properly using the equipment provided.”  P. Br. at 19.  I reject these claims, for they mischaracterize the evidence.  V7 understood Resident 12 liked to assist with attaching the sling straps to the lift and did this “all the time.”  Moreover, even assuming for the sake of argument that this was the first time Resident 12 attached sling strap(s) to the lift herself, the additional measure of the staff verifying the security of the strap or calling for additional staff help would be immediately apparent and necessary.  Further, I reiterate that the record shows that when Petitioner’s staff updated Resident 12’s care plan on April 18, 2019, it was noted that Resident 12 required total staff participation with transfers.  CMS Ex. 26 at 3.  Although Petitioner has not interpreted this intervention to mean a two-person assist was needed when using the mechanical lift, it nevertheless represents an “additional measure” for Resident 12’s safety. 

To comply with 42 C.F.R.§ 483.25(d)(1)-(2), Petitioner was required to take reasonable measures to protect Resident 12 from any foreseeable accidents during a transfer with the mechanical lift.  However, rather than doing everything it could reasonably do to prevent Resident 12 from having an accident, the undisputed evidence establishes that Petitioner left Resident 12 unsupervised and unprotected.  Resident 12’s known tendency to help with her transfer by touching and attaching the loops/straps to the sling created the very

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real likelihood that the transfer process could be jeopardized in some way, which is exactly what happened here.  Instead of mitigating the risk of a foreseeable accidental injury to Resident 12, V7 allowed Resident 12 to manipulate the sling loop(s) and attach them to the lift herself and failed to check the security of the straps before performing the transfer.  Petitioner thus failed to take the affirmative steps necessary to adequately supervise Resident 12 during a transfer, and, as a result, Resident 12 had a foreseeable accident and suffered actual harm.²⁷  Accordingly, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2).

6. Because none of the other deficiency citations from the May 1, 2019 survey served as a basis for the CMP imposed against Petitioner, I decline to review them.

CMS alleges that Petitioner was not in substantial compliance with eight other Medicare participation requirements.  The additional eight deficiencies cited by CMS are as follows:

• 42 C.F.R. § 483.10(h)(1)-(3)(i)(ii) (Tag F583) (Personal Privacy/Confidentiality of Records), S/S level D;
• 42 C.F.R. § 483.12(b)(1)-(3) (Tag F607) (Develop/Implement Abuse/Neglect Policies), S/S level D;
• 42 C.F.R. § 483.12(c)(1)(4) (Tag F609) (Reporting of Alleged Violations), S/S level D;
• 42 C.F.R. § 483.25 (Tag F684) (Quality of care), S/S level D;
• 42 C.F.R. § 483.25(b)(1)(i)(ii) (Tag F686) (Treatment/Services to Prevent/Heal Pressure Ulcer), S/S level D;
• 42 C.F.R. § 483.35(a)(1)(2) (Tag F725) (Sufficient Nursing Staff), S/S level F;
• 42 C.F.R. § 483.45(a)(b)(1)-(3) (Tag F755) (Pharmacy Services/Procedures/Pharmacist/Records), S/S level E; and

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• 42 C.F.R. § 483.45(g)(h)(1)(2) (Tag F761) (Label/Store Drugs and Biologicals), S/S level E

CMS Br. at 14-17; CMS Ex. 1 at 6-13, 25-30, 32-42. 

In its response, Petitioner argues that CMS failed to make a prima facie case for these additional deficiencies cited at the May 1, 2019 survey, and that it cannot rely on the SOD to establish a prima facie case of noncompliance.  P. Br. at 19-21. 

As noted above, CMS imposed the CMP against Petitioner based on the three “G” level deficiencies cited under 42 C.F.R. §§ 483.10(f)(1)-(3), (8) (Tag F561), 483.21(c)(1)(i)-(ix) (Tag F660), and 483.25(d)(1)-(2) (Tag F689).  CMS Ex. 3 at 1; CMS Br. at 1-2; see Order dated April 16, 2021.  Therefore, because none of the additional deficiencies cited at the May 1, 2019 survey served as the basis for the CMP in this case, it is unnecessary to examine whether or not CMS made a prima facie case of noncompliance with respect to those allegations, and I decline to review them.  42 C.F.R. § 498.3(b)(13).  

7. Because CMS’s Post-Certification Revisit Report indicates that a July 3, 2019 revisit survey found that all deficiencies from the May 1, 2019 survey which were the basis of the CMP were corrected as of May 25, 2019, I find that Petitioner returned to substantial compliance on May 25, 2019, not June 17, 2019. 
8. Because Petitioner’s period of noncompliance ended on May 24, 2019, the duration of the CMP is modified to run from April 22, 2019 through May 24, 2019. 

CMS’s August 19, 2019 notice letter states that the state agency conducted a revisit on July 3, 2019 and found Petitioner “to be in substantial compliance with the participation requirements effective June 17, 2019.”  CMS Ex. 4 at 1.  According to the same letter, CMS imposed a CMP of $1,245 per day from April 22, 2019 through June 16, 2019, for a total of $69,720.  CMS Ex. 4 at 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, including a CMP.  The regulations authorize CMS to impose a CMP against a facility for each day that it is not in substantial compliance with participation requirements.  42 C.F.R. § 488.430(a). 

CMS’s Post-Certification Revisit Report, which is in the record as CMS Ex. 5, indicates that a revisit conducted on July 3, 2019, found all the deficiencies from the May 1, 2019

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survey were corrected as of May 25, 2019.²⁸  I note further that, for the May 1, 2019 survey, Petitioner’s plan of correction, which addressed all the deficiencies cited by the surveyors, is dated “5/25/19.”  CMS Ex. 5.  Neither party discusses the Post-Certification Revisit Report in its briefing. 

The Board has held that “the noncompliance found during a survey is ‘presumed to continue until the facility demonstrates that it has achieved substantial compliance.”’ Ridgecrest Healthcare Ctr., DAB No. 2493 at 3 (2013), citing Taos Living Ctr., DAB No. 2293 at 20 (2009).  The Board explained that a facility “bears the burden of showing that it returned to substantial compliance on a date earlier than that determined by CMS.”  Ridgecrest, DAB No. 2493 at 3.  Pursuant to 42 C.F.R. § 488.454(a), a facility’s return to substantial compliance is usually determined “based upon a revisit or after an examination of credible written evidence that [CMS or the State] can verify without an on-site visit.”  Ridgecrest, DAB No. 2493 at 2-3. 

Petitioner has not specifically disputed that the period of noncompliance alleged by CMS is incorrect and should be shorter in duration.  However, it is evident from CMS’s own records that, based on a July 3, 2019 revisit, Petitioner’s deficiencies from the May 1, 2019 survey were determined to be corrected as of May 25, 2019.  Among these corrected deficiencies were the three “G” level deficiencies which were the basis of the CMP imposed against Petitioner:  42 C.F.R. §§ 483.10(f)(1)-(3), (8) (Tag F561), 483.21(c)(1)(i)-(ix) (Tag F660), and 483.25(d)(1), (2) (Tag F689).  CMS has offered no explanation as to why it did not use the May 25, 2019 correction date and instead set the later date of June 17, 2019, for purposes of determining the total per-day CMP amount.  Given that CMS’s own report reveals that all the deficiencies from the May 1, 2019 survey upon which the CMP was based were corrected as of May 25, 2019, and in the absence of any evidence as to why the noncompliance period should be extended, I find that Petitioner returned to substantial compliance as of May 25, 2019, with respect to the deficiencies for which CMS has applied a CMP.²⁹

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As a result, I find that the CMP period should have an end date of May 24, 2019, not June 16, 2019.  I thus modify the duration of the CMP period to run from April 22, 2019 through May 24, 2019.

9. The $1,245 per-day CMP amount imposed by CMS is reasonable.

I have concluded that Petitioner violated 42 C.F.R. §§ 483.10(f)(1)-(3), (8) (Tag F561), 483.21(c)(1)(i)-(ix) (Tag F660), and 483.25(d)(1)-(2) (Tag F689).  The violation of 42 C.F.R. § 483.25(d)(1)-(2) caused actual harm to Resident 12. 

In determining whether the CMP imposed against Petitioner is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors listed in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  Unless a facility contends that a particular regulatory factor does not support the CMP amount, I must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).

The Board has explained that “[i]t is settled law that ALJ review of the reasonableness of CMP amounts imposed by CMS is de novo.”  Fireside Lodge Retirement Ctr., Inc., DAB No. 2794 at 19 (2017).  I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found and in light of the above factors. I am neither bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002).  The Board has explained that “[t]he determination of whether a CMP amount is reasonable is a conclusion of law, not a finding of fact.”  Cedar Lake Nursing Home, DAB No. 2344 at 12 (2010), aff’d, Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010).

In assessing the reasonableness of a CMP amount, an ALJ considers the per-day amount, rather than the total accrued CMP.  See Kenton Healthcare, LLC, DAB No. 2186 at 28 (2008).  Pursuant to 42 C.F.R. § 488.408(g)(2), a facility cannot appeal CMS’s choice of a remedy, and an appeal of a CMP is limited to review based on the regulatory factors set forth at 42 C.F.R. §§ 488.438(f) and 488.40(b)-(c).  See, e.g., Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 19-20 (2010).

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The regulations specify two penalty ranges for per-day CMPs, an upper range and a lower range.  42 C.F.R. §§ 488.408, 488.438.  The lower per-day CMP range of $107 to $6,417, as adjusted annually, is applicable to this case, and this range applies to deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii); 45 C.F.R. § 102.3 (Table) (2018); 83 Fed. Reg. 51,369, 51,380 (Oct. 11, 2018). 

Here, CMS imposed a per-day CMP of $1,245 for each day Petitioner was not in substantial compliance.  The $1,245 amount is at the lower end of the penalty range.  

Petitioner argues that the CMP amount of nearly $70,000 is unreasonable given its level of culpability.  In Petitioner’s view, it was in substantial compliance with the three most serious citations, i.e., Tags F561, F660, and F689, and the remaining deficiencies cannot justify a large CMP amount.  Petitioner argues also that CMS cannot rely on its regulatory history to inflate the CMP amount and that it should consider its “financial health.”  P. Br. at 22.  

Based on my consideration of the regulatory factors, the CMP amount is reasonable. 

With respect to Petitioner’s history of noncompliance, CMS offered into evidence a document titled “AEM Nursing Home Enforcement History,” which shows Petitioner’s compliance history from March 10, 2005 through May 1, 2019.  CMS Ex. 6.  My review of this report shows that Petitioner has a lengthy history of noncompliance since 2005.  

CMS notes that a January 30, 2019 survey resulted in a citation involving actual harm, specifically, a “G” level deficiency under Tag F689, which is one of the citations at issue in this case.  CMS Br. at 18; see CMS Ex. 6 at 1.  Thus, the report establishes that Petitioner has repeated noncompliance under Tag F689.  Additionally, I note that, in the past few years, Petitioner was cited for other “G” level deficiencies:  a February 13, 2019 survey resulted in a “G” level deficiency under Tag F686 (Treatment/Services to Prevent/Heal Pressure Ulcers); and surveys completed on October 17 and 29, 2018 resulted in “G” level deficiencies under Tags F686, F697 (Pain Management), and F760 (Residents Are Free of Significant Medication Errors).  CMS Ex. 6 at 1. 

Petitioner’s history also shows that it has had immediate jeopardy level deficiencies:  a citation under Tag F309 (now Tag F684, Quality of Care) at the “J” level during a June 2009 survey and another citation under Tag F441 (now Tag F880, Infection Prevention & Control) at the “L” level during a March 2012 survey.  CMS Ex. 6 at 7, 9.  According to the report, in connection with those survey findings, Petitioner paid a total of $11,212.50 in CMPs.  CMS Ex. 6 at 7, 9.  Further, because of other deficiencies from a March 2013 survey cycle and a February 2015 survey cycle, Petitioner paid a total of $24,515 in CMPs.  CMS Ex. 6 at 4, 6.

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Petitioner asserts that CMS’s reliance on its compliance history to calculate CMPs is “unfair,” because its history is “full of citations that [Petitioner] was not afforded the right to contest in front of an [ALJ],” which “violates the principles of due process.”  P. Br. at 23.  Petitioner contends that its history “does not reflect those citations where [Petitioner] might have persuasive evidence of compliance, but without a hearing, was unable to have the matter decided outside of the informal dispute resolution process.”  P. Br. at 23.  Petitioner also complains that its history includes “several deficiencies that were part of hearing requests that are still pending and still in dispute.”  P. Br. at 23. 

To the extent that Petitioner is claiming that there were citations which were unappealable, Petitioner is correct in that the Board has held that a facility has no right to a hearing unless CMS imposes an enforcement remedy.  San Fernando Post Acute Hosp., DAB No. 2492 at 7-8 (2012); Columbus Park Nursing & Rehab. Ctr., DAB No 2316 at 7 (2010); Lutheran Home – Caledonia, DAB No. 1753 (2000); Schowalter Villa, DAB No. 1688 (1999).  It is the imposition of a remedy, not the citation of a deficiency, which triggers the right to a hearing.  Schowalter Villa, DAB No. 1688 at 3; see 42 C.F.R. §§ 488.406, 498.3(b)(13).  If CMS cited a deficiency for which no penalty was imposed, then Petitioner would not have been entitled to appeal it.  Where CMS imposed a CMP for example, as it did in this case, Petitioner would have had the opportunity to request a hearing to contest the deficiencies that resulted in that remedy.  Even so, the Board has held that I have no authority under the Act or its regulations to adjudicate due process arguments.  Buena Vista Care Ctr., DAB No. 2498 at 20-21 (2013) (refusing to entertain on the merits the SNF’s contention that it had a constitutional due process right to challenge CMS’s immediate jeopardy determination); Carrington Place of Muscatine, DAB No. 2321 at 23-24 (2010); Columbus Park Nursing & Rehab. Ctr., DAB No. 2316 at 10 (2010).  Nonetheless, even if I only considered the surveys where CMS imposed a CMP which was subsequently paid by Petitioner, I would still find that Petitioner’s compliance history supports the reasonableness of the $1,245 per-day CMP.

Although Petitioner has attempted to minimize its noncompliance, the deficiencies involving Resident 3 and Resident 12 were serious.  Despite being aware of Resident 3’s urgent wish to go home, Petitioner failed to implement an effective discharge planning process for him, as required by the regulations.  For its deficient efforts in carrying out its discharge planning duties, Petitioner is culpable.  

Petitioner also failed to protect Resident 12 from an entirely foreseeable accident, and CMS assessed this violation at a “G” scope and severity level, which indicates an isolated deficiency that causes actual harm but does not pose immediate jeopardy to resident health and safety.  Because Petitioner failed to provide Resident 12 with adequate supervision during a transfer, Resident 12 fell four feet from the mechanical lift.  Resident 12 suffered actual harm in the form of multiple lacerations requiring sutures.  Petitioner is culpable for failing to adequately ensure Resident 12’s safety.  I find that the

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seriousness of Petitioner’s violation involving Resident 12 is sufficient, by itself, to justify the $1,245 per-day CMP. 

With respect to its financial condition, Petitioner claims that “nearly 90% of [its] residents” are “supported by the Illinois Medicaid program, which reimburses facilities at one of the lowest rates in the country.”  P. Br. at 24.  Petitioner asserts that it “will face financial hardship which will detract from planned Facility upgrades with the imposition of” a nearly $70,000 CMP.  P. Br. at 24.  In considering a facility’s financial condition, the Board has held “that the correct inquiry . . . is ‘whether the facility has adequate assets to pay the CMP without having to go out of business or compromise resident health and safety.’”  Gilman Care Ctr., DAB No. 2357 at 7 (2010), quoting Sanctuary at Whispering Meadows, DAB No. 1925 at 19 (2004); 59 Fed. Reg. 56,204 (1994).  The Board has held that the facility has the burden of proving, by a preponderance of the evidence, that it is unable to pay the CMP.  Oaks of Mid City Nursing & Rehab Ctr., DAB No. 2375 at 26 (2011); Gilman Care Ctr., DAB No. 2357 at 7. 

Petitioner has not offered any evidence to establish that it cannot pay the $1,245 per-day CMP.  Its unsupported assertion that the CMP will cause it to “face financial hardship” falls far short of meeting its burden of proof.  I thus find no basis to reduce the CMP based on Petitioner’s financial condition. 

As noted above, the CMP of $1,245 per day is at the lower end of the applicable penalty range.  Accordingly, based on the regulatory factors, I conclude that the $1,245 per-day CMP is reasonable.  

10. Because CMS imposed a CMP in the total amount of $10,697 or more, CMS is required by law to prohibit Petitioner from having a NATCEP for two years.  

In its June 19, 2019 notice letter, CMS informed Petitioner that if the DPNA went into effect, then it would be prohibited from offering or conducting a NATCEP for two years from July 22, 2019.  CMS Ex. 3 at 2, 4.  Subsequently, in its August 19, 2019 notice letter, CMS informed Petitioner, inter alia, that the DPNA was rescinded prior to going into effect.  However, CMS stated that Petitioner was still subject to a NATCEP prohibition “since a CMP in the amount of $10,697.00 or more has been imposed.”  CMS Ex. 4 at 3.  CMS noted further that because its records indicated that Petitioner had requested a hearing, “the two year NATCEP prohibition will be effective the date of the final administrative decision upholding a CMP of $10,697.00 or more.  This prohibition is not subject to appeal.”  CMS Ex. 4 at 3.  I note that Petitioner, in its hearing request, “disagree[d]” with CMS’s prohibition on conducting a NATCEP but did not discuss it in its brief.  RFH at 2. 

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The inflation-adjusted monetary threshold applicable to this case for the withdrawal of NATCEP approval was $10,697.  45 C.F.R. § 102.3 (Table) (2018).  Because the total amount of the CMP assessed in this case is greater than $10,697, CMS is required by law to prohibit Petitioner from having a NATCEP for two years.

V.   Conclusion

For the reasons discussed above, I grant summary judgment in favor of CMS.  There is no genuine dispute of material facts, and I conclude that Petitioner was not in substantial compliance with the Medicare participation requirements at 42 C.F.R. §§ 483.10(f)(1)-(3), (8), 483.21(c)(1)(i)-(ix), and 483.25(d)(1)-(2).  A $1,245 per-day CMP from April 22, 2019 through May 24, 2019, for a total CMP of $41,085, is reasonable.  CMS is required by law to prohibit Petitioner from having a NATCEP for two years. 

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Endnotes

¹  Effective November 28, 2016, CMS substantially revised the federal nursing home regulations and re-numbered the tag numbers corresponding to the regulations.  81 Fed. Reg. 68,688 (Oct. 4, 2016). 

²  CMS or the state agency designates the scope and severity level using a letter from A through L, based on a scope and severity matrix published in the State Operations Manual (SOM), ch. 7, § 7400.3.1 (Rev. 185, eff. Nov. 16, 2018), available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07pdf.pdf (last visited February 10, 2023).  A scope and severity level of A, B, or C indicates a deficiency that presents no actual harm but has the potential for minimal harm, which is an insufficient basis for imposing an enforcement remedy.  Facilities with deficiencies of levels A, B, or C remain in substantial compliance.  SOM, Ch. 7, § 7400.3.1, citing 42 C.F.R. § 488.301.  Levels D, E, or F indicate a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy.  Id.  Levels G, H, or I indicate a deficiency that involves actual harm that does not amount to immediate jeopardy.  Id.  Levels J, K, and L indicate a deficiency that constitutes immediate jeopardy to resident health or safety.  Id.  The matrix specifies which remedies are required and optional at each level based upon the pervasiveness of the deficiency. 

³  In the letter, the state agency erroneously cited the relevant regulatory provision as “42 CFR, Section 483.151(3)(iii).”  The correct regulation is 42 C.F.R. § 483.151(b)(3)(ii).

⁴  According to Petitioner’s request for hearing, the June 6, 2019 survey cited a violation of 42 C.F.R. § 483.10(e)(4)-(6).  Petitioner’s Request for Hearing (RFH).  Neither party mentioned this deficiency in its briefing. 

⁵  This case was reassigned to me on July 21, 2021. 

⁶  “Immediate jeopardy means a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301 (emphasis in original). 

⁷  CMP amounts increased, effective February 3, 2017, for deficiencies assessed on or after February 3, 2017, when the violation occurred after November 2, 2015.  See 82 Fed. Reg. 9,174 (Feb. 3, 2017).  The ranges of CMP amounts I have listed above are the ranges which were in effect as of the date the CMP was imposed against Petitioner, June 19, 2019. 

⁸  In its brief, CMS describes a Bi-Pap machine as “a non-invasive ventilator support device.”  CMS Br. at 5. 

⁹  The local contact agency is a local community organization responsible for providing counseling to nursing home residents about community support options.  CMS Br. at 7 n.1. 

¹⁰  Although it is not clear based on the documents in the record before me, it appears that at some point, Resident 3 also fractured his left leg or ankle.  I note that the nurse practitioner who examined Resident 3 the following month mentioned that Resident 3 had a previous injury to his left leg.  CMS Ex. 15 at 31. 

¹¹  The one-page excerpt of the MRI report in the record states “Page 3 of 4” in the upper right-hand corner.  P. Ex. 12. 

¹²  Neither party offered the January 18, 2019 nursing note into evidence. 

¹³  In its brief, Petitioner states, “The SOD focuses on a January 18, 2019 Physician order to discharge [Resident 3.]”  P. Br. at 11.  Petitioner’s statement is inaccurate.  The SOD references the January 18, 2019 nursing note, which I have described above.  The discharge order from the physician is dated January 19, 2019.  CMS Ex. 11 at 1, 9. 

¹⁴  In its brief, Petitioner incorrectly states that Resident 3 was seen by the orthopedic surgeon on January 28, 2019.  P. Br. at 6.  

¹⁵  The physician’s signature on both P. Exs. 7 and 8 is illegible.  Also, P. Ex. 8 reflects that Resident 3’s physician signed the form on April 15, 2019, but the “Encounter Date” provided at the top is given as February 20, 2019.  P. Ex. 8. 

¹⁶  According to her survey notes, Surveyor Roos spoke with Resident 3 on April 23, 2019, at 10:15 a.m.  She does not indicate whether she conducted a telephone interview or an in-person interview of Resident 3.  Because Resident 3 left Petitioner’s facility on April 19, 2019, he would not have been a resident there during the survey on April 23, 2019. 

¹⁷  According to a facility form titled “Concerns,” dated April 16, 2019, Resident 3 permitted Petitioner’s Administrator to reach out to his sister to discuss his discharge.  Resident 3’s sister called the Administrator and stated that she did not want Resident 3 to be discharged, because “that is not safe for him and [she] was unable to help him.”  CMS Ex. 18 at 7. 

¹⁸  Again, the surveyor did not indicate whether she conducted an in-person interview or telephone interview of Resident 3. 

¹⁹  When interviewed by the surveyor on April 29, 2019, Petitioner’s physician, Dr. Kureishy, stated that he “had forgotten about the discharge order from January” and that he “[didn’t] know if that would still be an active order or not.”  CMS Ex. 21 at 1. 

²⁰  Although a signature was not required on the report, V7 signed the form.  P. Ex. 19 at 3. 

²¹  The SOD, in setting forth the citation under Tag F689, mentions both subsections 483.25(d)(1) and (d)(2).  See CMS Ex. 1 at 30.  I note that the facts central to the deficiency at issue under Tag F689 fall within the ambit of subsection 483.25(d)(2) as they deal with the inadequate supervision of Resident 12.  The surveyors made no allegations that the physical environment of Petitioner’s facility presented accident hazards for its residents.  Nevertheless, in this decision, I refer to the participation requirement at issue as 42 C.F.R. § 483.25(d)(1)-(2).

²²  Effective November 28, 2016, CMS revised and reorganized many of the participation requirements codified in 42 C.F.R. pt. 483.  81 Fed. Reg. 68,688 (Oct. 4, 2016).  Prior to the revision, subsections 483.25(d)(1) and (2) were codified as subsections 483.25(h)(1) and (2).  When the Board issued the decision in Maine Veterans’ Home – Scarborough, subsection 483.25(h)(1) was in effect.  I find it appropriate to rely on the reasoning of that decision and similar Board decisions interpreting 483.25(h)(1) and (2), because there was no substantive change to the content when those subsections were redesignated as subsections 483.25(d)(1) and (2). 

²³  Although Petitioner describes P. Ex. 14 as “Ultralift Operational Manual” on its exhibit list, I note that it is actually a one-page excerpt from the lift manufacturer’s manual and has the heading “General Information” at the top.  According to Petitioner, this excerpt is from “the very beginning of the manual.”  P. Br. at 15. 

²⁴  Petitioner does not dispute that the April 18, 2019 intervention was in effect at the time of Resident 12’s transfer on April 21, 2019. 

²⁵  Judge Anderson’s SPO directed that a party seeking to present witness testimony “must submit as a proposed exhibit with its prehearing exchange the complete, written direct testimony of any proposed witness.  CRDP [Civil Remedies Division Procedures] § 19(b).  Witness testimony must be submitted in the form of an affidavit made under oath or as a written declaration that the witness signs under penalty of perjury for false testimony.  See 28 U.S.C. § 1746.”  Petitioner did not offer the testimony of any witnesses. 

²⁶  Had the record shown that Resident 12 had never touched or grabbed the sling loops in the past or done anything in the past to interfere with the mechanical lift process, then, under this scenario, a fall from the lift could possibly be characterized as unforeseeable.  However, that is not the case here. 

²⁷  Because it is not necessary for my analysis, I do not address whether Petitioner provided the proper level of staff assistance for Resident 12’s transfer with the mechanical lift. 

²⁸  The report indicates, in the lower left-hand corner, that the July 3, 2019 revisit was a follow-up to the survey completed on May 1, 2019.  CMS Ex. 5. 

²⁹  As stated above, a compliance investigation survey of Petitioner also took place on June 6, 2019, and the state agency cited a deficiency under 42 C.F.R. § 483.10(e)(4)-(6) at this survey.  CMS Ex. 3; RFH.  Regardless, CMS has not stated that a CMP was imposed because of this deficiency.  There is nothing in the record which would lead me to find that this deficiency provided a basis to continue the CMP from May 25 to June 17, 2019.