Holly Springs Rehabilitation and Healthcare Center, DAB CR6368 (2023)

DECISION

Holly Springs Rehabilitation and Healthcare Center (Petitioner or "the facility") challenges the determination by the Centers for Medicare & Medicaid Services (CMS) to impose a per‑day civil monetary penalty (CMP) of $1,190 from October 5, 2020, until December 10, 2020, for Petitioner's noncompliance with Medicare participation requirements.  Petitioner primarily challenges the duration of the cited noncompliance, arguing that it had immediately corrected the cited deficiencies and returned to substantial compliance prior to December 10, 2020.

For the reasons discussed below, I conclude that the facility was not in substantial compliance with Medicare program requirements, the facility did not return to substantial compliance until December 10, 2020, and the per-day CMP of $1,190 is reasonable.

I.  Background

The Social Security Act (Act) establishes requirements for skilled nursing facility (SNF) participation in the Medicare program and authorizes the Secretary of Health and Human Services ("the Secretary") to promulgate regulations implementing those statutory provisions.  See 42 U.S.C. § 1395i-3; 42 C.F.R. pts. 483 and 488.  To participate in the Medicare program, SNFs must maintain substantial compliance with program

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participation requirements.  In order to be in substantial compliance, any deficiencies may "pose no greater risk to resident health or safety than the potential for causing 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 participation requirements.  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.  42 U.S.C. § 1395i‑3(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.

CMS may 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 SNF's noncompliance.  42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. § 488.430(a).¹  If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge (ALJ) to challenge the noncompliance finding and enforcement remedy.  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).

The Mississippi State Survey Agency (state agency) conducted a complaint investigation and COVID-19 focused infection control survey of the facility on October 13, 2020, and cited noncompliance with 42 C.F.R. §§ 483.12(a)(1) (Tag F-600) and 483.21(b)(1) (Tag F-656) at a scope and severity level of "G" for both deficiencies.²  CMS Exs. 1 at 1, 9; 3 at 2.

In an amended "Imposition Notice" dated December 23, 2020, CMS imposed a per-day CMP of $1,190 for the facility's noncompliance beginning October 5, 2020, and continuing until the facility achieved substantial compliance.  CMS Ex. 3 at 2-3.  In a "Compliance Notice" issued on May 10, 2021, CMS determined that the facility returned to substantial compliance beginning on December 10, 2020.  CMS Ex. 4 at 1.

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Petitioner timely requested a hearing on February 26, 2021.  CMS filed a pre-hearing brief, along with 40 proposed exhibits (CMS Exs. 1-40), and Petitioner filed a pre-hearing brief and 10 proposed exhibits (P. Exs. 1‑10).

CMS submitted the written direct testimony of the state agency surveyor (CMS Ex. 40), and Petitioner submitted the testimony of the facility's administrator (P. Ex. 2).  Neither party has requested an opportunity to cross-examine the opposing witness, and a hearing is therefore unnecessary for the purpose of cross-examination of any witnesses.  This case is ready for a decision on the merits.

II.  Issues

Whether Petitioner was in substantial compliance with the Medicare program participation requirements at 42 C.F.R. §§ 483.12(a)(1) and 483.21(b)(1);

If Petitioner was not in substantial compliance, whether Petitioner remained out of compliance with Medicare participation requirements beginning October 5, 2020, and continuing through and inclusive of December 9, 2020; and

If Petitioner was not in substantial compliance, whether a per-day CMP of $1,190 is a reasonable enforcement remedy?

III.  Discussion³

1. Resident # 1 had a history of falls at the facility and was "[at] risk for falls."  A minimum data set (MDS) assessment reported that Petitioner provided assistance with all activities of daily living (ADLs) during the lookback period, to include providing as much as weight-bearing support with bed mobility, transfers, dressing, personal hygiene, and toileting.  Resident # 1's diagnoses included cerebral infarction, Parkinson's disease, muscle atrophy, and gait and mobility abnormalities.  She was also severely cognitively impaired based on a Brief Interview for Mental Status (BIMS) score of 7.
2. Pursuant to her ADLs care plan, Resident # 1 required "extensive" assistance, consisting of the assistance of two persons, for bed mobility, toileting, and transfers.  Resident # 1 also required "extensive" assistance with bathing/showering.

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3. On February 15, 2020, a certified nursing assistant, CNA # 1, attempted to give Resident # 1 a bed bath without the assistance of other staff, in contravention of the resident's care plan.
4. Resident # 1 had a falls care plan that reported she was at risk for falls and had a history of falls.
5. Resident # 1 fell during the attempted bed bath.
6. Resident # 1 sustained a femur fracture when she fell.

The two deficiencies cited in this case involve Resident's # 1's fall with resulting femur fracture; the relevant and material facts are substantially undisputed.

Resident # 1's facility admission record includes diagnoses of cerebral infarction, Parkinson's disease, muscle wasting and atrophy, muscle weakness, and abnormalities of gait and mobility.  CMS Ex. 9 at 1-2.  Petitioner assessed that Resident # 1 had a BIMS score of 7, which corresponds to severe cognitive impairment.⁴  CMS Ex. 11 at 5.

Resident # 1's ADLs care plan states that "[t]he resident requires EXTENSIVE assistance by (2) staff to turn and reposition in bed as necessary."  CMS Ex. 10 at 2.  The same care plan reports that Resident # 1 required extensive assistance by two persons with toilet use and transfers.  CMS Ex. 10 at 3.  Resident # 1 also required extensive assistance with bathing/showering.  CMS Ex. 10 at 2.  A November 2019 falls care plan documented that Resident # 1 had a history of falls at the facility and was evaluated as being "[at] risk for falls."  CMS Ex. 10 at 5-6.

Based on the facility's January 2020 MDS assessment, Petitioner provided assistance with all ADLs, to include providing as much as weight-bearing support with bed mobility, transfers, dressing, personal hygiene, and toilet use during the lookback period.  CMS Ex. 11 at 6.  Petitioner's Kardex Report⁵ documented that Resident # 1 "requires EXTENSIVE assistance by (2) staff to turn and reposition in bed as necessary," and also

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required extensive assistance by two staff with transfers and toilet use.  CMS Ex. 12 at 1.  The Kardex further reported that Resident # 1 required extensive assistance by one to two persons with bathing/showering.  CMS Ex. 12 at 1.

On February 15, 2020, CNA # 1 attempted to give Resident # 1 a bed bath without the assistance of any other staff.  P. Ex. 2 at 2 (declaration of administrator); see CMS Exs. 21 at 1 (statement of CNA # 1); 22 at 1 (statement of LPN # 2).  "[D]uring the course of providing a bed bath, [Resident # 1] rolled out of bed and fell to the floor."  P. Ex. 2 at 2; see CMS Exs. 20 at 1; 21 at 1.  Although CNA # 1 helped the resident back into bed, she did not report the fall to anyone.  P. Ex. 2 at 2; see CMS Exs. 20 at 1; 22 at 1.  Instead, CNA # 1 informed the resident's nurse, licensed practical nurse (LPN) # 2, that the resident "almost" fell out of bed, and that she had "caught [the resident] before she rolled out of the bed."  P. Ex. 2 at 2-3; see CMS Exs. 20 at 1; 22 at 1.  LPN # 2 then assessed Resident # 1, but did not see any bruises or issues at that time.  CMS Ex. 8 at 1.

One staff member, LPN # 4, recalled in a February 28, 2020 statement, that on February 16, the morning after the fall, Resident # 1 twice "yell[ed] with pain to her upper right thigh."  CMS Ex. 24 at 1.  The staff member "softly massaged the area" after each complaint and "the muscle relaxed."  CMS Ex. 24 at 1.  After the resident complained of pain on the second day following the fall, the resident received pain medication and had an x-ray study of her right hip, femur, and knee.  CMS Ex. 13 at 8 ("Resident with [complaint of] pain to upper right thigh throughout AM shift. . . . Xray completed of right hip, femur, and knee. . . ."); CMS Ex. 18 at 1 (pain medication administration).  The x-ray report revealed moderate right knee arthritis, but did not identify acute fracture or dislocation.  CMS Ex. 14 at 1, 3-6.

Resident # 1 complained of pain following her fall.  See, e.g., CMS Ex. 13 at 8 (nursing notes); 16 at 2 (physician orders); 18 (medication administration records documenting administration of medication for muscle spasms beginning on February 17, 2020).  The resident had a CT scan on February 28, 2020, and that study revealed an intertrochanteric fracture of the proximal right femur.  CMS Ex. 17 at 1-2.

Thereafter, the facility notified the resident's physician and responsible party of the fracture diagnosis and initiated an investigation.  CMS Ex. 13 at 7; P. Ex. 2 at 2; see CMS Ex. 20.  The facility also reported the incident to the state agency and the Attorney General's office.  P. Ex. 2 at 3.  During the facility's investigation, CNA # 1 provided a different account than what she had previously reported at the time of Resident # 1's fall, explaining this time that the resident "rolled off" the bed and "was already on the floor" despite her attempt to catch the resident.  CMS Ex. 21 at 1.  CNA # 1 further stated that she put the resident back in bed and claimed that she notified LPN # 2 of the fall.  CMS Exs. 21 at 1; 8 at 1 (LPN # 2 interview with surveyor recalling "[W]e got the CT scan back and it showed a fracture [and] I asked the CNA again if [the resident] had fell that day and she said yeah [I] told you she did.").

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Petitioner suspended CNA # 1 on February 28, 2020, and terminated her employment on March 2, 2020, prior to her return to work.  P. Ex. 2 at 3-4; CMS Ex. 20 at 3-4, 9-10.  The facility determined that CNA # 1 had "only reported a near-fall . . . and lied about [Resident # 1] actually falling."  P. Ex. 2 at 3.  The facility completed a disciplinary action record for CNA # 1, which stated the following:  "Employee did not follow care plan guidelines for 2 person assist with a resident.  Employee also moved a resident and put resident back in bed without notifying a nurse to assess patient prior to moving her after fall."  CMS Ex. 20 at 9.  Petitioner also suspended LPN # 2 on February 28, 2020, and allowed her to return to work on March 4, 2020.  P. Ex. 2 at 2-3; P. Ex. 9; CMS Ex. 20 at 1-2.

As part of its corrective actions following the investigation, the facility reviewed Resident # 1's care plan for falls and, on March 2, 2020, updated the plan to specifically require two-person assistance for "bed baths."  P. Ex. 4 at 2.  The following day, the facility completed "[a] facility-wide census noting the level/number of CNA assistance required for each resident . . . ."  P. Ex. 2 at 5; P. Br. at 8; see CMS Ex. 19.  Petitioner also conducted in-service trainings for its staff between February 28 and March 4, 2020, on several relevant topics, to include Abuse, Neglect, Resident Rights, and the Vulnerable Adults Act; Following Residents' Care Plans and Kardex; Reporting Accidents/Incidents, and Return Demonstration on properly using the iPad and Kardex.  P. Exs. 5-9.

On March 2, 2020, the facility submitted an amended incident report to the state agency after completing its investigation.  CMS Ex. 20 at 1 ("This is written follow up from previously reported injury of unknown origin regarding [Resident # 1] reported to [the state agency] on 2/28/2020."); see P. Ex. 2 at 5.  The facility summarized its findings and discussed its corrective measures, including the following:

[Resident # 1's physician] was notified of the incident and the fracture.  [Resident # 1's] Responsible Party was notified.  Life satisfaction rounds were conducted with residents who have a BIMS Score of 12 and higher and asked about their care received from [CNA # 1 and LPN # 2] with no negative findings.

In-service was initiated on Abuse/Neglect, Resident Rights and Vulnerable Adults Act.  In-service on following resident careplan/Kardex was completed.  In-service on reporting accidents/incidents to include interrupted falls completed.

. . . [CNA # 1] was terminated for failing to report a fall and assisting [Resident # 1] from the floor after fall unassisted.  [LPN # 2] was re-educated on treating interrupted falls as a fall requiring an incident report

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and follow up.  [Resident # 1's] care plan was reviewed and revised for two C.N.A.S to provide [her] a bed bath.

CMS Ex. 20 at 1-2.

Less than two months after the fall, Resident # 1 died on April 9, 2020, while under hospice care.  CMS Ex. 13 at 1-2; 40 at 3.

Later that year, the state agency surveyed the facility in October 2020 and cited two deficiencies relating to Resident # 1's fall and injury.  See CMS Ex. 1 at 1-2, 9-10.  Having been found out of substantial compliance, the facility submitted a plan of correction, listing the following corrective measures:

1. On 3/2/2020, CNA # 1 was terminated.  All Certified Nursing Assistants (CNA's), Registered Nurses (RN's), and Licensed Practical Nurses (LPN's) were in-serviced on 2/28/2020 regarding following care plan/Kardex and reporting falls immediately by the Director of Nursing (DON).
2. Resident Activities of Daily Living (ADL) care plans were reviewed by Administrator to identify all residents that require two persons assist with ADL's on 3/3/2020.  Thirty four (34) of one hundred and fourteen (114) residents were identified.
3. On 10/19/2020, all CNA's, LPN's, and RN's were in-serviced by Staff Development Coordinator on reporting falls immediately and following care plan/Kardex.  RN Supervisor or LPN Unit Manager will perform ADL care audits three times a week for four weeks then weekly times 4 weeks to ensure care plan/Kardex is being followed.
4. Beginning 12/7/2020, RN Supervisor or LPN Unit Manager will perform ADL care audits three times a week for four weeks then weekly times 4 weeks to ensure care plan/Kardex is being followed.  Administrator or Director of Nursing (DON) will review audit results weekly.  Administrator or DON will bring results of ADL audit to Quality Assurance/Performance Improvement Committee for review and recommendation monthly for two months.  Administrator is responsible for monitoring and compliance.

CMS Ex. 2 at 2-3.

6. Petitioner failed to substantially comply with 42 C.F.R. § 483.12(a) when it failed to provide two-person assistance when bathing Resident # 1 in her bed, which resulted in the resident's fall and femur fracture.

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7. Petitioner failed to substantially comply with 42 C.F.R. § 483.21(b)(1) when it failed to provide two-person assistance when bathing Resident # 1 in her bed, which resulted in the resident's fall and femur fracture.

Petitioner concedes that the above facts constitute noncompliance with both section 483.12(a) (Tag F-600), which requires a facility to protect and promote the resident right to be free from neglect, and section 483.21(b)(1) (Tag F-656), which requires a facility to develop and implement a comprehensive person-centered care plan for each resident.  P. Br. at 5 (acknowledging that the facility "does not deny that the February 15 incident occurred as detailed in the SOD").  Petitioner focuses its arguments on the duration of the cited noncompliance.  P. Br. at 1 (confirming that this appeal "revolves singularly" around the question of when the facility achieved substantial compliance).

Briefly, I conclude that the facility was substantially noncompliant with the requirement to protect the resident right to be free from neglect.  42 C.F.R. § 483.12(a); see also 42 U.S.C. § 1395i-3(c)(1)(A)(ii).  CNA # 1's failure to ensure that two-person assistance, as required by the care plan, was provided to Resident # 1 during an attempted bed bath resulted in a fall and fractured femur, and amounted to neglect.  42 C.F.R. § 488.301 (defining "neglect" as "the failure . . . to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress."); CMS Ex. 20 at 1 (facility's self-report that "the facility does substantiate that [Resident # 1] had an unreported fall on 2/15/2020 that resulted in an intertrochanteric fracture of the proximal right femur.").  I also conclude that CNA # 1's failure to adhere to Resident # 1's care plan also supports the facility's noncompliance with the requirement to implement a comprehensive person-centered care plan for each resident.  42 U.S.C. § 1395i-3(b)(2); 42 C.F.R. § 483.21(b)(1).⁶

8. Petitioner, in connection with the instant request for hearing, submitted a document entitled, Performance Improvement Plan (PIP) worksheet, which purportedly documents the facility's efforts in March 2020 to perform "spot audits" to monitor staff compliance with resident care plans.

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9. At the time of the October 2020 survey, Petitioner did not provide the surveyor with the PIP worksheet or other evidence of monitoring efforts in March 2020.
10. Immediately following the October 2020 survey, Petitioner affirmed in its plan of correction that it intended to audit staff compliance with care plans as soon as October 19, 2020; the plan of correction also listed the facility's prior corrective actions in March 2020, but that list did not reference any prior monitoring efforts.  The plan of correction therefore contradicts the purported evidence in the PIP worksheet that the facility had monitored staff compliance with care plans in March 2020.
11. The PIP worksheet is inconsistent with the amended incident report submitted by Petitioner to the state agency on March 2, 2020, because the contemporaneous corrective actions reported by Petitioner did not include any efforts to monitor staff compliance with resident care plans.
12. Although Petitioner submits the PIP worksheet as evidence that the facility performed "spot audits" of staff compliance with care plans, the worksheet provides minimal information about the audits and monitoring, to include failing to indicate the individual(s) responsible for auditing or monitoring staff compliance with care plans, the number or frequency of audits performed, which staff members were audited, when the audits took place, and which residents' care plans had been audited.
13. Through the pendency of this appeal, Petitioner has not submitted contemporaneous documents to corroborate the information on the PIP worksheet.
14. The PIP worksheet does not include sufficient details of the facility's audits and monitoring process to establish that the monitoring process was appropriate to ensure that similar incidents would not recur.
15. Because Petitioner has not submitted probative evidence that it appropriately monitored staff compliance with care plans in March 2020 to ensure that similar incidents would not recur, Petitioner has not established that it returned to substantial compliance prior to December 10, 2020.

As noted, Petitioner disputes the duration of its noncompliance, arguing that it had returned to substantial compliance before the October 2020 survey and therefore the deficiencies cited should have been considered "past noncompliance."  P. Br. at 2; Donelson Place Care and Rehab. Ctr., DAB No. 3046 at 23 (2021) (describing past

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noncompliance as "a period of noncompliance which not only began but also was corrected by the facility itself before the survey.").  According to Petitioner, immediately following the incident and by March 2020, the facility had investigated and properly reported the incident, reviewed all relevant policies and procedures, updated resident care plans as needed, in-serviced all staff on relevant issues, and terminated CNA # 1.  P. Br. at 2, 12-13.

Petitioner further argues, in connection with its request for hearing, that as part of its investigation of Resident # 1's injury, the facility's Quality Assurance & Performance Improvement Committee (QAPI Committee) selected a PIP team to oversee the facility's corrective actions.  P. Br. at 13-14; Request for Hearing at 4.  The PIP team consisted of the facility's administrator, Director of Nursing, Assistant Director of Nursing, and Medical Director, and the PIP team determined to, among other things, in-service staff and conduct "spot audits on ADL care."  CMS Ex. 26; P. Ex. 2 at 3-4.  Petitioner argues that the facility returned to substantial compliance no later than March 9, 2020, or after the PIP team had conducted the first of four weekly reviews of the audits and any incidents.  P. Br. at 16.

The DAB has held that a facility remains out of substantial compliance until it affirmatively demonstrates that it has returned to substantial compliance.  Ridgecrest Healthcare Ctr., DAB No. 2493 at 2-3, 15 (2013); Premier Living & Rehab. Ctr., DAB No. 2146 at 23 (2008); 42 C.F.R. § 488.454.  The facility must show that the incidents of noncompliance have ceased and that it has implemented appropriate measures to ensure that similar incidents will not recur.  Libertywood Nursing Ctr., DAB No. 2433 at 15 (2011) (citing Life Care Ctr. of Elizabethton, DAB No. 2367 at 16 (2011)), aff'd 512 F. App'x 285 (4th Cir. 2013).  The burden is on the facility to prove that it is back in compliance, not on CMS to prove that deficiencies continued to exist.  Owensboro Place & Rehab. Ctr., DAB No. 2397 at 12 (2011).

Given the cited noncompliance, Petitioner does not dispute its obligations to in-service staff on complying with care plans and to monitor staff compliance with resident care plans so that similar incidents would not recur.  Indeed, Petitioner's administrator, Mr. Weaver, testified that, "We [the PIP team] determined that the plan for correcting the issues would consist of in-servicing all staff on immediately reporting all falls or near-falls, in-servicing all CNAs on how to access the Kardex, have all CNAs perform a return demonstration to show they were knowledgeable and capable of accessing the Kardex, and ongoing spot audits on ADL care over the next 4 weeks beginning on March 2 after conclusion of in-servicing."  P. Ex. 2 at 3-4 (emphasis added).

As explained below, I conclude that Petitioner has not submitted probative evidence showing that the facility did, in fact, adequately monitor staff compliance with resident care plans so that similar incidents would not recur.

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In support of its argument that it monitored staff compliance with care plans in March 2020, Petitioner submitted a document entitled, "Performance Improvement Project (PIP) Worksheet" as Exhibit G to its Request for Hearing.  See CMS Ex. 26.  Petitioner reported on page five of its request for hearing that it first submitted the PIP worksheet with its request for independent informal dispute resolution (IIDR).

The PIP worksheet purportedly captures the PIP team's activities from March 2, 2020, through April 1, 2020, and therefore the document should have been available at the time of the October 2020 survey.  CMS Ex. 26 at 1-4.  Yet Petitioner did not provide it to the surveyor.  CMS Ex. 40 at 3 (unrebutted testimony from surveyor that the PIP worksheet "was not provided to me during the survey and is not addressed in the survey report.").  Indeed, Petitioner submitted no evidence at the time of the survey of its prior monitoring efforts.⁷  CMS Ex. 40 at 4 (surveyor's testimony that she had expected to see evidence of "detailed oversight, monitoring, and evidence of outcomes," but "[t]he survey did not reveal any records of monitoring or oversight with measures to demonstrate that [Petitioner's correction] efforts were successful."); see also P. Ex. 3 at 2 (email from state agency to facility explaining that "the surveyor did not see facility monitoring by QAPI processes to ensure sustained compliance" and that "[t]he facility failed to monitor for resident neglect through their QA process and failed to monitor the staff's following of care plans.").

Petitioner's administrator testified that the surveyor "never asked for any QA materials" like the PIP worksheet, implying that the surveyor was at fault for its failure to submit this document to the surveyor.  P. Ex. 2 at 5.  That position misunderstands the burdens on this issue.  As noted, the burden is on the facility to prove that it is back in compliance.  Owensboro Place & Rehab. Ctr., DAB No. 2397 at 12 (2011).  Thus, regardless of whether the surveyor specifically asked for a PIP worksheet, the facility had the burden to demonstrate that it had implemented appropriate measures to ensure that similar incidents would not recur, including evidence showing it monitored staff compliance with care plans and the effectiveness of its corrective actions.

But even if the surveyor did not specifically ask for any QA materials during the survey, the state agency did make such a request.  In its November 30, 2020 letter notifying the facility of its noncompliance findings and providing the facility with the statement of deficiencies (SOD), Form CMS-2567, the state agency specifically directed the facility to submit a plan of correction for the deficiencies found.  Request for Hearing Ex. C at 2; 42 C.F.R. § 488.401.  Specifically, the facility was required to include the following in its plan of correction, including plans to monitor the effectiveness of its corrective actions:

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• Address how corrective action(s) will be accomplished for those residents found to have been affected by the deficient practice;
• Address how the facility will identify other residents having the potential to be affected by the same deficient practice;
• Address what measures will be put into place or systemic changes made to ensure that the deficient practice will not recur; and,
• Indicate how the facility plans to monitor its performance to make sure that solutions are sustained.  The facility must develop a plan for ensuring that correction is achieved and sustained.  This plan must be implemented, and the corrective action evaluated for its effectiveness.  The plan of correction is integrated into the quality assurance system.
• Indicate the date(s) the corrective action(s) will be completed.

Request for Hearing Ex. C at 2 (emphasis added); see also Rosewood Care Ctr. of Rockford, DAB No. 2466 at 10 (2012) ("To lay the foundation for [demonstrating a return to compliance date], the SNF first must 'promptly file for CMS's approval a plan stating when and how the facility will correct the conditions' that violate Medicare requirements.").

Petitioner stated in its plan of correction that its monitoring and auditing processes would begin on October 19 and December 7, 2020, which are dates that post-date the survey.  CMS Ex. 1 at 2-3.  Significantly, Petitioner also identified corrective actions that were completed back in February and March 2020—including CNA # 1's termination and the in-service training sessions conducted—but there is no reference to any monitoring process that it purportedly had implemented in February or March 2020.  CMS Ex. 2 at 2-3.  Petitioner's own statements in its plan of correction thus undermine Mr. Weaver's claim.  Those statements also contradict Petitioner's broader argument that it had, in fact, monitored staff compliance with care plans back in March 2020.  See also Cal Turner Extended Care Pavilion, DAB No. 2030 at 18 (2006) (maintaining that the DAB has "long rejected as contrary to the goals of the [Medicare] program the notion[] . . . that a facility can belatedly claim to have achieved substantial compliance at a date earlier than it even alleged [in its plan of correction] that it had done so . . . ."); Libertyville Manor Rehab. & Healthcare Ctr., DAB No. 2849 at 14 (2018).

Other contemporaneous documents, such as the facility's amended incident report to the state agency, undermine the facility's claim that it monitored staff compliance with care plans in March 2020.  As noted, the facility notified the state agency of its investigation into Resident # 1's injury and, in an amended report dated March 2, 2020, also discussed the facility's corrective actions.  CMS Ex. 20 at 1-2.  Those actions included in-service training sessions that were "initiated" or "completed"; CNA # 1's termination; and LPN # 2's re-education on interrupted falls.  CMS Ex. 20 at 1-2.  Like the facility's plan of correction, the amended report also fails to mention any monitoring the facility conducted to ensure that staff complied with care plans.

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Mr. Weaver unpersuasively claims that the facility's report to the state agency on March 2, 2020, "did not include any QAPI information yet because that process had not been completed as monitoring was ongoing."  P. Ex. 2 at 5; P. Br. at 14.  Petitioner could have reported the monitoring efforts that had been initiated—indeed, "ongoing"—by the date it submitted the amended report—just as it had reported that certain in-services had been "initiated."⁸  CMS Ex. 20 at 1 ("In-service was initiated on Abuse/Neglect, Resident Rights and Vulnerable Adults Act.  In-service on following resident care plan/Kardex was completed.").  Petitioner's submission of an amended report also suggests that Petitioner could have submitted an additional amended report when additional information became available, but there is no evidence Petitioner chose to submit any additional amended reports discussing its monitoring efforts.

Finally, the contents of the PIP worksheet itself and, more specifically, the lack of details of the audits conducted also limits the worksheet's probative value.  Relevant here, under the section for "measurement tools," the PIP worksheet simply states that the PIP team determined to perform a weekly review of Accident & Incident reports and "spot audits on ADL care."  CMS Ex. 26 at 1-2.  The notes for the weekly reviews then state, for example, that staff "are following care plan" and "show ability to access Kardex."  CMS Ex. 26 at 2-4.  I do not place significant weight on those conclusory notes that purportedly support the facility's auditing process and findings.

The PIP worksheet itself does not indicate who performed the audits.  Mr. Weaver testified that he "randomly" conducted audits, but his vague testimony did not provide any specifics regarding the audit process:

I began performing the ADL spot-checks randomly with different CNAs on March 2 and continuing over the next several weeks.  I would randomly follow the CNAs into a resident's room, note how they performed care, and then check their performance against the resident's Kardex to make sure all ADLs were performed properly.

P. Ex. 2 at 5.  I observe that the PIP worksheet provides no information about the number or frequency of the audits performed over the four-week period purportedly captured by the PIP worksheet.  The PIP worksheet lacks documentation about which CNAs were randomly audited, when such audits were conducted, and which residents' care plans had been reviewed.  CMS Ex. 40 at 4 (surveyor observation that the PIP worksheet "does not provide any detail regarding who performed these reviews and audits, which staff were

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monitored").  The utter lack of detail diminishes the PIP worksheet's probative value concerning whether the facility did in fact monitor and audit staff compliance with care plans in March 2020.  See CMS Ex. 40 at 4 (surveyor declaring that "[t]he survey did not reveal any records of monitoring or oversight with measures to demonstrate that [Petitioner's correction] efforts were successful.").

Those details also could have aided in establishing that the facility's monitoring process was appropriate, i.e., adequate to ensure that similar incidents would not recur.  See Libertyville Manor Rehab. & Healthcare Ctr., DAB No. 2849 at 13 (2018) ("[T]he remedial measures specified in a plan of correction should be adequate to ensure that deficient conditions and practices will not recur.").  Thus, even assuming Petitioner has submitted credible evidence that it completed some audits in March 2020, the record as a whole does not show that the facility's monitoring was adequate.  On that point, Petitioner counters that the incident was "isolated" and not a "large-scale deficient practice that required widespread oversight."  P. Br. at 15-16.  Petitioner rejects the need for "detailed oversight, monitoring, and evidence of outcomes" because the noncompliance cited was not pattern or widespread.  P. Br. at 15.  The flaw with Petitioner's reasoning is that it is unclear from the record just how many audits Petitioner conducted, which makes it impossible to evaluate whether the audits were an effective intervention for the cited deficiency.  I note that, in comparison with the plan of correction, the PIP substantially lacks in detail.  Compare CMS Ex. 1 at 10-11 (plan of correction reporting that "RN Supervisor or LPN Unit Manager will perform ADL audits three times a week for 4 weeks then weekly times four weeks to ensure care plan/Kardex is being followed") to CMS Ex. 19 (lacking any frequency or target benchmarks for audits).  Further, the record lacks evidence that any auditing or monitoring performed in March 2020 was appropriate, i.e., adequate to ensure that similar incidents would not recur, even for a deficiency that was "isolated."

For the reasons discussed above, the record does not demonstrate that the facility adequately monitored staff compliance with resident care plans in March 2020 to prevent the recurrence of a similar incident of actual harm to a resident due to failure to adhere to a care plan.⁹  Through the pendency of this appeal, Petitioner could have, but did not,

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submit contemporaneous documents to corroborate the information on the PIP worksheet and provide additional details.  For example, Petitioner could have, but did not, submit evidence supporting Mr. Weaver's testimony that the QAPI Committee reviewed the PIP team's progress on April 21, 2020, and concluded the correction plan had been successful.  P. Ex. 2 at 5.  I therefore conclude that Petitioner did not return to substantial compliance in March 2020 and otherwise failed to establish that it returned to compliance prior to December 10, 2020.

16. A per-day CMP of $1,190 is a reasonable enforcement remedy for the period of noncompliance.

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, to include a CMP.  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 that CMS proposed, an ALJ must sustain the CMP.  Coquina Ctr., DAB No. 1860 at 32 (2002).

The DAB has explained that "it 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 DAB 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, 619 F.3d 453, 457 (5th Cir. 2010).

The regulations specify that a CMP that is imposed against a facility on a per-day basis will fall into one of two ranges.  42 C.F.R. §§ 488.408, 488.438.  The lower CMP range of $50 to $3,000 per day, as adjusted annually under 45 C.F.R. part 102, is applicable here.  42 C.F.R. § 488.438(a)(1)(ii).  In assessing the reasonableness of a CMP, an ALJ

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looks at the per-day amount, rather than the total accrued CMP.  See Kenton Healthcare, LLC, DAB No. 2186 at 28 (2008).

CMS imposed a CMP of $1,190 per day for 66 days of substantial noncompliance from October 5 through December 9, 2020, for a total CMP of $78,540.  The per-day CMP of $1,190 is at the low end of the $112 to $6,695 CMP range applicable at that time for deficiencies that did not constitute immediate jeopardy.  See 45 C.F.R. § 102.3; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).

Petitioner has not argued that any of the enumerated regulatory factors warrant a reduction of the per-day CMP, and it does not cite any regulatory basis to challenge the reasonableness of the per-day CMP.  Petitioner instead disputes the total CMP amount as unreasonable and argues that "a per-instance CMP is the more just, appropriate, and reasonable penalty."  P. Br. at 17.  For all of the reasons discussed above, however, Petitioner failed to show that it returned to substantial compliance prior to the survey, and thus failed to show that the deficiencies should have been cited as past noncompliance.  Furthermore, to the extent Petitioner is disputing CMS's choice of remedy, arguing in favor of a per-instance over a per-day CMP, Petitioner cannot do so pursuant to 42 C.F.R. § 488.408(g)(2); 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 488.404(a)-(c).  See, e.g., Senior Rehabilitation and Skilled Nursing Ctr., DAB No. 2300 at 19-20 (2010).

Considering the relevant regulatory factors, the per-day CMP of $1,190, amounting to approximately 18 percent of the allowable per-day CMP that could have been imposed, is unquestionably reasonable, if not too low, considering the egregiousness of the deficiencies and the associated significant pain and injury suffered by Resident # 1.  The facility's two deficiencies were serious as they involved actual harm, specifically a fractured femur, to Resident # 1.  CNA # 1's culpability, which is imputed to the facility, was high as her failure to follow Resident # 1's care plan evidenced "neglect, indifference, or disregard" for resident care and safety.  Even without consideration of Petitioner's history of subsequent noncompliance, a per-day CMP of $1,190, at the very low end of the applicable CMP range, is entirely reasonable for two cited deficiencies that resulted in actual harm pursuant to 42 C.F.R. § 488.438(f).  See CMS Ex. 5.

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IV.  Conclusion

For the reasons discussed above, I conclude that the facility was not in substantial compliance with the Medicare participation requirements, and that it remained out of substantial compliance from October 5, 2020, through and inclusive of December 9, 2020.  I also conclude that the per-day CMP of $1,190 amount is reasonable.

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Endnotes

¹  The per-day CMP range applicable to this case is $112 to $6,695 for deficiencies that do not constitute immediate jeopardy.  45 C.F.R. § 102.3 (2020).

²  Scope and severity levels are used by CMS and state survey agencies when selecting remedies.  The scope and severity level is designated by letters A through L.  CMS Pub. 100-7, State Operations Manual (SOM), ch. 7, § 7400.3.1 (Matrix for Scope & Severity) (Rev. 185, eff. Nov. 16, 2018); see also 42 C.F.R. § 488.408.  As relevant here, a scope and severity level of "G" means isolated noncompliance that causes actual harm that is not immediate jeopardy.

³  Findings of fact and conclusions of law are in bold and italics.

⁴  A BIMS summary score of 7 is indicative of severe cognitive impairment.  See Long‑Term Care Facility Resident Assessment Instrument (RAI) 3.0 User's Manual, Ch. 3 (Overview to the Item-by-Item Guide to the MDS 3.0), § C0500 (Summary Score) at C-14, https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/Downloads/MDS-30-RAI-Manual-V113.pdf (last visited September 27, 2023).

⁵  Petitioner's Kardex system "allow[s] nurses and CNAs to access and review each resident's care plan via iPad, laptop, or desktop computer in the Facility."  P. Ex. 2 at 2.

⁶  To the extent Petitioner places blame solely on CNA # 1, who, Petitioner contends, "purposely ignored" the resident's care plan, such deflection of blame is unavailing.  P. Br. at 12 (asserting that this is not a case where the facility failed to "initiate or implement a care plan for [Resident # 1]" or to "train its staff to properly effectuate that care plan.").  As the Departmental Appeals Board (DAB) has explained, a "facility acts through its staff and cannot dissociate itself from the consequences of its employees' actions."  Springhill Senior Residence, DAB No. 2513 at 14 (2013); see also Kindred Transitional Care and Rehab - Greenfield, DAB No. 2792 at 10-11 (2017).

⁷ Petitioner does not support its claim its claim that it submitted the PIP worksheet with its IIDR request.

⁸  Petitioner acknowledged elsewhere that in-services were eventually completed when LVN # 2 returned from suspension on March 4—or two days after the amended report was submitted.  P. Br. at 7 n.9 (citing P. Ex. 9).

⁹  Petitioner also provided inconsistent dates about when its QAPI Committee convened to form the PIP team to address the problems related to Resident # 1's fall.  Petitioner's Brief and Request for Hearing indicate that the facility's QAPI Committee met and selected the PIP team on March 2, 2020.  Request for Hearing at 4; P. Br. at 8.  But Mr. Weaver testified that the facility's QAPI Committee met on February 28 and "[a]t this meeting," the QAPI Committee selected a [PIP] team to address the issues identified.  P. Ex. 2 at 3-4.  These inconsistencies, combined with the fact that the claimed audit process was not made known at the time of the survey, undermine Petitioner's claims that it had implemented corrective actions in March 2020 to correct the deficiencies.