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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Appellate Division |
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DATE: June 22, 2004 |
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Centers
for Medicare & Medicaid
Services
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Docket No. A-04-33
Civil Remedies CR1094 Decision No. 1927 |
| DECISION | |
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REMAND OF Madison Health Care, Inc. (Madison) appealed the October 7, 2003 decision of Administrative Law Judge (ALJ) Steven T. Kessel that granted summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and found that CMS was authorized to impose on Madison a civil money penalty (CMP) of $450 per day for the period from August 1, 2002 through August 22, 2002. Madison Health Care, Inc., DAB CR1094 (2003) (ALJ Decision). The ALJ addressed only one of nine deficiencies cited after a survey of Madison's facility that ended August 1, 2002. The ALJ concluded that no material facts were in dispute as to that deficiency and that Madison's noncompliance with the cited regulation sufficed to authorize CMS to impose a CMP of the proposed amount. For the reasons explained fully below, we find that the evidence proffered by the parties and the inferences which can reasonably be drawn from the evidence, when considered in the light most favorable to Madison, shows that genuine issues of material fact remain in dispute. Therefore, we conclude that summary judgment was not appropriate against Madison here. Accordingly, we remand this case to the ALJ for further proceedings, consistent with our decision. BACKGROUND The CMP at issue was proposed after a survey of Madison which ended on August 1, 2002 and found that Madison was not in substantial compliance with nine Medicare participation requirements. CMS Ex. 1. Based on a follow-up survey completed on September 3, 2002, CMS determined that Madison had achieved substantial compliance as of August 23, 2002. CMS proposed to impose a CMP for $450 per day beginning on August 1, 2002 and continuing through August 22, 2002. Madison appealed all nine findings. CMS moved for summary disposition with respect to seven of them. The ALJ Decision addressed only the finding of noncompliance with the requirement stated at 42 C.F.R. � 483.25(h)(2), cited as Tag 324. The allegations under Tag 324 involved two residents who suffered injury in falls which CMS asserted were the result of inadequate supervision or inappropriate use of assistance devices. APPLICABLE LEGAL PROVISIONS A CMP may be imposed against a facility that is not in "substantial compliance" with one or more participation requirements. 42 C.F.R. � 488.408(d). A facility is not in "substantial compliance" with a participation requirement if it is found to have a deficiency that results in actual harm to a resident or poses a risk of more than minimal harm to resident health and safety. 42 C.F.R. � 488.301. Surveyors assign a letter rating to the deficiency findings for each tag to indicate the scope and severity of the noncompliance found. State Operations Manual � 7400E.1. A CMP in the range of $50-$3,000 per day may be imposed for one or more deficiencies that do not constitute "immediate jeopardy" but that either cause actual harm or create the potential for more than minimal harm. 42 C.F.R. � 488.438(a). Within the applicable range, the regulations specify factors to be considered in determining an appropriate CMP amount. 42 C.F.R. � 488.438(f)(3); 42 C.F.R. � 488.404. Among the requirements which a facility must meet to participate in the Medicare program are standards for quality of care in preventing accidents. The relevant regulation at issue in this case is as follows:
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42 C.F.R. � 483.25(h)(2) (emphasis in original). Under 42 C.F.R. Part 498, a facility has a right to request a hearing by an ALJ assigned to the Departmental Appeals Board and a right to request review of an ALJ decision by the Board itself. ISSUE The fundamental issue raised by Madison's appeal is whether summary judgment is appropriate in this case. |
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| ANALYSIS | |
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1. The Board on review applies the standard for summary judgment de novo. The ALJ issued summary judgment for CMS over the opposition of Madison, which argued that material facts remained in dispute. The hearing procedures in Subpart D of Part 498 generally contemplate an oral hearing at which witnesses will testify and may be cross-examined (unless the parties have waived their right to a hearing in writing). In a recent case, the Board articulated the appropriate analysis to determine when an ALJ may properly decide a case by summary judgment without conducting such a hearing absent a waiver by the petitioner and also set out the standard the Board uses to review an ALJ decision granting summary judgment. Lebanon Nursing and Rehabilitation Center, DAB No. 1918 (2004). We quote the relevant discussion here at some length since it governs our review of the present case as well:
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Lebanon at 3-4. The Board went on to set out how these general considerations regarding summary judgment apply in cases where CMS imposes sanctions on nursing homes:
Lebanon at 5. The ALJ's explanation of how he assessed the appropriateness of summary judgment in this matter is neither entirely clear nor fully consistent with these criteria. On the one hand, the ALJ stated that no "disputed issues of material fact pertaining to Tag 324" existed and that he had accepted as "true all of Petitioner's allegations that it supports with facts based on evidence or proposed testimony." ALJ Decision at 3. On the other hand, he asserted that it was "appropriate to grant summary disposition where conclusions favorable to the moving party may be drawn from undisputed material facts and applicable law." Id. (emphasis added). He reconciled these statements by explaining that disputes as to which conclusions to draw from a set of facts should not preclude summary judgment if the material facts themselves are not disputed. Id. The ambiguity of the ALJ's reasoning arises from the well-established principle that, in the context of a summary judgment motion, all reasonable inferences supported by the evidence should be drawn in favor of the non-moving party. See, e.g., U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). The Sixth Circuit articulated the decisionmaker's role as follows:
Sagan v. U.S., 342 F.3d 493, 497 (6th Cir., 2003). Thus, the ALJ deciding a summary judgment motion does not "make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts," as would be proper when sitting as a fact-finder after a hearing, but instead should "constru[e] the record in the light most favorable to the nonmovant and avoid[] the temptation to decide which party's version of the facts is more likely true." Payne v. Pauley, 337 F.3d 767, 770 (7th Cir., 2003). It follows that it cannot be said to be sufficient to support a grant of summary judgment that one "may" draw a conclusion favorable to the moving party, if one might also reasonably reach inferences which would support a conclusion favoring the non-moving party. Nor is it appropriate for the ALJ to evaluate at this stage where the truth is most likely to lie or which party's evidence is more persuasive. The focus is rather on whether the non-movant has so failed to meet the challenge of demonstrating that evidence exists on an element material to deciding the matter as to require an adverse judgment. While the non-moving party is entitled to the benefit of any favorable factual finding or inference which a "rational trier of fact" could reach on the evidence presented, however, that does not imply that the decision-maker must accept that party's thinking as to how the law should be applied to those facts. See, e.g., McCoy v. Harrison, 341 F.3d 600 (7th Cir. 2003)(court is not required to credit mere speculation or conjecture by non-movant). In that sense, the ALJ may have meant simply that summary judgment is appropriate where the law, properly applied, compels a decision against the facility, even on the most favorable construction of the facts put forward by the facility. It is not essential to our analysis whether (regardless of any semantic ambiguity in his decision) the ALJ correctly understood and applied the standards for summary judgment. The Board stated in Lebanon: "Whether summary judgment is appropriate is a legal issue that we address de novo, viewing the proffered evidence in the light most favorable to the non-moving party." Lebanon at 4. (citation omitted). We therefore consider below whether summary judgment is appropriate in this case based on our own application of the standard we have set out. In that process, we are guided by the Federal Rules of Civil Procedure (FRCP), even though they are not binding here, and by judicial decisions on summary judgment in determining whether the ALJ erred in granting summary judgment. See Thelma Walley v. Inspector General, DAB No. 1367 (1992). (1) We note that our review is complicated to some degree by the ALJ's decision to address only a single deficiency. For purposes of evaluating whether summary judgment was appropriate, we must assume that the deficiencies which were not discussed would be resolved in Madison's favor. (2) That is to say, in order to sustain summary judgment in this case, we would have to conclude that (1) no material facts are in dispute regarding Tag 324, even considering the matter in the light most favorable to Madison, so that judgment against Madison on that tag is compelled, (2) that the findings on Tag 324 suffice to demonstrate that Madison was not in substantial compliance and to authorize CMS to impose a remedy (even were all the other deficiency findings unsupported), and (3) that the undisputed facts and evidence proffered by the parties, again considered in the light most favorable to Madison, compels the conclusion that the remedy of a $450 per day CMP is reasonable in amount and the duration properly determined (again even if none of the other deficiencies were upheld). Before we turn to our discussion of whether material facts remain in dispute (viewing the proffered evidence in the light most favorable to Madison), we address Madison's arguments concerning the applicable law. Madison argued that ALJ erred in his interpretation of the regulation governing the deficiency at issue. Since the question of what facts are material depends on what must be proven to establish or defend against a deficiency finding, we must resolve this issue first. 2. The ALJ applied the correct legal standard in evaluating compliance with the cited regulatory requirement. The single deficiency finding with which the ALJ found Madison not in substantial compliance was based on allegations relating to falls experienced by two residents. Madison argued as a threshold matter that the ALJ erred in opining that "it is the text and the interpretation of the regulation and not common law or State tort law standards that define Petitioner's duty to its residents under 42 C.F.R. � 483.25(h)(2)." Madison Br. at 5, quoting ALJ Decision at 4. Madison's argument is that the ALJ set out what "appears very much like an acceptable common-law negligence standard grounded in foreseeability" but yet used the term "knowable" instead of "foreseeable" in describing the accident hazards against which a facility must protect its residents. Id. Further, Madison contended that the ALJ failed to require "a causal link" between inadequate supervision and/or inadequate use of assistance devices and the occurrence of an accident. Id. The ALJ is correct that federal statutory and regulatory standards, not state tort law, apply in ascertaining compliance with Medicare participation requirements. Woodstock Care Center, DAB No. 1726, at 19-20 (2000), aff'd, Woodstock Care Ctr. v. Thompson, No. 01-3889 (6th Cir. 2003). While useful reference may sometimes be made to common-law concepts, federal law governs here and imposes uniform participation requirements across state lines. Congress may choose, and in the case of Medicare law has chosen, to require facilities receiving federal payments to provide a level of care superior to the minimum necessary to escape liability in negligence. Madison cites no authority for its assertion that CMS must demonstrate a causal link between the inadequate supervision and/or assistance device and an accident, and we find the law to be otherwise. In fact, the Board has repeatedly stated that "it is the risk, not the fact, of an accident" that is a prerequisite to finding a deficiency, where practicable steps could have been taken to prevent a foreseeable accident from eventuating. See Omni Manor Nursing Home, DAB No. 1920, at 38 (2004); see also Price Hill Nursing Home, DAB No. 1781 (2001) ("The intent of the regulation is to prevent accidents; thus, the fact that no accident occurred because no resident touched the unattended cart or the unlocked supply closet does not establish compliance with this regulation."); Woodstock, DAB No. 1726, at 17 ("[O]bservations and the occurrence of events other than accidents may suffice to expose the absence of supervision adequate to prevent accidents."). Since no accident need have occurred for CMS to establish that a facility has not provided supervision or assistance devices adequate to prevent accidents, it necessarily follows that CMS is not required to show a causal link to an accident. Nor does the mere fact that an accident occurred demonstrate a violation per se. The occurrence and causes of an accident are relevant but not decisive on the ultimate issue of whether the facility has ensured that the resident in question "receive[d] adequate supervision and assistance devices to prevent accidents" so as to provide that resident with "the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being." 42 C.F.R. �� 483.25 and 483.25(h)(2). 3. Madison proffered sufficient evidence to demonstrate that there is a genuine dispute of material fact and hence a hearing is required. With these standards in mind, we turn to whether the evidence in the record, construed in the light most favorable to the facility, compels the conclusion that Madison was not in substantial compliance with the cited regulatory requirements. We find that it does not. In considering what facts are material, we look not only at the facts that CMS alleged in setting out its prima facie case but at the entire picture presented by not only Madison's disputes as to those facts but also its affirmative assertions of other facts and evidence which may impact what inferences may reasonably be reached on the ultimate issues. The allegations on which CMS relied in finding that Madison was not in substantial compliance with 42 C.F.R. � 483.12(h)(2) were related to two residents. We discuss each resident in turn. A. Resident 85 The ALJ first set out the facts alleged by CMS which he concluded established a basis for him to conclude, unless rebutted by Madison, that Madison failed to ensure adequate supervision or assistance devices for this resident. Thus, the ALJ stated that the facts as offered or alleged by CMS established the following material points:
ALJ Decision at 4-6. The ALJ concluded that it was "reasonable to infer that the proximate cause of the second fall . . . was the failure of Petitioner's staff to exercise supervision over the resident that they knew or should have known was necessary" in light of the resident's known limitations and the circumstances of the fall the preceding day. Id. at 6. The ALJ stated that Madison did not allege any facts which "call into dispute the facts on which CMS relies and from which" he inferred failure to comply with the regulation. Id. at 7. Specifically, the ALJ reviewed Madison's proffers of testimony to establish that Resident 85 was not unstable in the merri walker, that merri walkers are inherently stable devices, and the resident was trained in their use, and that the resident had been assessed as safe to use the merri walker with "general supervision." Id., and record citations therein. The ALJ concluded that, even assuming these assertions to be true, the fact that the resident fell on June 22, 2002, while using a merri walker without supervision established that the resident was not in fact safe in using it unsupervised regardless of prior training or assessments or the general stability of the device. Id. According to the ALJ, the first episode provided notice to Madison which imposed a duty to provide additional supervision during use of the merri walker, and that duty was not met. Id. Madison argued that genuine issues of material fact remained in dispute about whether Madison provided what was needed to minimize as much as practicable and reasonable those risks that were foreseeable. Madison Br. at 11. Madison contended that the only undisputed aspect of what happened to Resident 85 on June 22 and 23, 2002, is that she was "found on the floor" and that she was injured. Madison Br. at 9. The reason she was found there could be attributed to loss of balance, to some purposeful action of hers, or to other "environmental factors," such as another resident's actions or an obstacle in her path. Id.; P. Ex. 8, at 2. In some areas, the ALJ appeared to treat as uncontested assertions by CMS about which the record contained at least some conflicting evidence. For example, the ALJ relied on CMS's assertion that it was undisputed that Madison "did not modify its assessment of the resident nor did it take any precautionary steps concerning the resident's unsupervised use of a merri walker" after the first fall. ALJ Decision at 5. The surveyor noted in the SOD, however, that documentation from after the fall "indicated that new interventions would be to check for proper position and to supervise traffic in the hallway." P. Ex. 1, at 29. Thus, it is in fact undisputed that Madison did plan new interventions, while a dispute may still exist as to whether the planned interventions were sufficient, appropriate or adequately implemented. The ALJ also found that Madison did not dispute that the resident was using a merri walker "without supervision" at the time of each fall. ALJ Decision at 7 (emphasis in original). It was indeed undisputed that no staff member observed either fall. Nevertheless, Madison did assert that the resident required and was provided "general supervision." (3) P. Ex. 23, at 4-5. The ALJ stated that he had "no idea" what Madison intended the term "general supervision" to mean and that Madison had not disputed CMS's assertion that the falls occurred while the resident was "unsupervised." ALJ Decision at 7. Madison's assertion of general supervision is sufficient, however, to raise a dispute concerning whether the resident was "unsupervised," since the assertion implies at least some level of supervision. While the ALJ might ultimately find Madison's evidence too vague or unreliable without further explanation, the proffer is enough to raise a dispute of fact about whether any level of supervision was actually provided. For purposes of summary judgment, the non-moving party does not have to prove its case, but merely must show that there is a genuine dispute. In addition, Madison proffered evidence which, taken as true and considered in the most favorable light to Madison, as it must be in evaluating a summary judgment motion, could establish the following:
The most favorable inferences that could reasonably be drawn from the facts presented by Madison would include the following. Madison planned for individualized daily judgments by the care staff to encourage ambulation by Resident 85 on days when she showed sufficient physical control and mental alertness to make that possible, with the use of the merri walker to assist in stabilizing her. The facility considered the first accident as a "fluke" caused by some unpredictable factors in the resident's vicinity which could not be identified because the fall was not observed. In response to that episode, the facility took some additional precautions, but did not consider the first fall a predictor requiring either more direct supervision or discontinuing the merri walker. The staff's judgment was based on their experience that no other patients fell using merri walkers (after having received Madison's assessment and training), the resident's goal to restore ambulation, and their observation that this resident used the merri walker on other occasions without difficulty. When the second fall made it apparent that these efforts did not succeed in preventing the resident from falling even while using the merri walker for whatever reason, the facility immediately discontinued ambulation with the merri walker. It would be possible for a rational decision-maker crediting the opinions of the nurse and physical therapist to conclude that the facility was reasonably encouraging ambulation on the resident's "good days" in order to meet the goal of independence and that the first fall was so unusual that the facility reasonably did not regard it as making a repetition foreseeable. A rational decisionmaker, believing the facility evidence about general supervision, could draw the inference that closer supervision would be unlikely to have made a difference since the circumstances of the falls were unknown and unpredictable. Madison Br. at 9. (4) The ALJ may well find Madison's arguments, evidence and witnesses less credible or persuasive than those presented by CMS, but where such evaluation of credibility or comparison of competing evidence is called for, summary judgment is inappropriate. It is true that, even accepting all the evidence and factual assertions proffered by Madison as accurate, the inferences Madison would have us draw are certainly not the only ones that could reasonably be drawn. Yet, where the record evidence is susceptible of a rational interpretation which would preclude summary judgment against the non-movant party, the case must go forward for a thorough evaluation of what the most reasonable inferences and the preferable interpretations are based on all credible evidence in the record after a full hearing. The material facts include more than those put forward by CMS as sufficient, if unchallenged, to make out a prima facie case of a violation. As noted above, even where the facility does not challenge the accuracy of CMS's factual representations, it may yet proffer other facts from which collectively a rational trier of fact might infer a scenario in which the facility did not violate the regulation. We conclude that Madison has done so here in regard to Resident 85. The effect of our conclusion is that Madison must be provided with a hearing in which to present evidence (unless Madison waives its right to an oral hearing) and that Madison must be provided with an opportunity to argue for those inferences which it contends should be drawn from the evidence. Only after that process is complete may the ALJ proceed to weigh the evidence in the record and determine which inferences to draw. Nothing in our discussion here should be taken as suggesting or limiting what conclusions the ALJ may appropriately reach based on the record as a whole at that point.
The ALJ again began his analysis concerning this resident by setting out the facts alleged by CMS which he concluded established, unless rebutted by Madison, that Madison failed to ensure adequate supervision or assistance devices for this resident. The ALJ listed the following facts as asserted by CMS:
ALJ Decision at 5-6. The ALJ concluded that the facts offered by CMS showed that Madison staff responded to the resident's "extreme risk for falling while unsupervised," by using movement alarms, but the alarms were ineffective because they malfunctioned repeatedly. Id. at 6-7. Further, he concluded that CMS had shown that Madison's staff planned to deal with the problem by daily checks of the alarms but still was not checking them daily as of August. Id. at 7. The ALJ found that Madison did not dispute the facts on which CMS relied and from which he inferred that Madison was out of compliance. Id. He rejected Madison's argument that a factual dispute existed regarding whether it was checking the alarms with sufficient frequency to meet the applicable standard of care, which it contended was less than daily. Madison alleged that the alarms were checked on April 1st and 5th, prior to the April 7, 2002, fall, and that this was consistent with its normal and reasonable practice. The ALJ concluded that he did not need to decide whether a general standard of care required daily checks, because undertaking daily checks was the solution chosen by Madison to deal with the unreliability of the alarms after April 7, 2002. Id. at 8. The ALJ described Madison's failure to then implement the daily checks as an "undisputed fact - which is not denied by Petitioner." Id. In addition, the ALJ found irrelevant Madison's contentions that the resident might not have actually fallen and the bed alarm may not have malfunctioned in the cited episodes in November and December 2001. Id. at 9. According to the ALJ, the essential and undisputed facts were that Madison knew by April 7, 2002, that the resident was at risk of falling by ambulating unsupervised if her bed alarm malfunctioned, that Madison chose to address the risk by daily battery checks, and that Madison failed to actually implement the checks. Id. In the face of these facts, the ALJ found it fortuitous that the resident did not fall again between April 7, 2002, and the August 2002 survey, but did not credit that fact as proving that Madison was providing adequate protection. Id. The ALJ focused his decision on a limited set of the facts alleged by CMS regarding events after April 7, 2002, in reaching his conclusion that no material facts were disputed regarding Resident 60. The allegations in the SOD by contrast emphasized the circumstances of the resident's fall on April 7, 2002 (including the malfunction of the alarm), and the information the facility had prior to that point based on the resident's clinical conditions, assessments, plan of care and prior falls. The SOD did, however, also reference the later period, by noting additional interventions put in place after April 7, 2002, including the plan for daily checks, and reporting a statement that batteries on all alarms in the facility were checked randomly by restorative services. CMS's summary judgment motion also stressed the argument that Madison had notice prior to April 7, 2002, that the alarms it was using for Resident 60 were not reliable based on the earlier falls, that the standard of care required daily battery checks prior to April 7, 2002, and that therefore evidence that Resident 60's bed alarm was checked only on April 1st and 5th in the week before the fall showed a deficiency. CMS Motion for Summary Judgment at 9, and record citations therein. CMS's motion did go on to assert that, even though the new interventions were put in place immediately after the April fall, an August 2002 statement by the assistant director of nursing (ADON) about random checks proved that the daily checks of Resident 60's bed alarm were not done, thus failing both to implement the facility's own plan and "to meet the standard of care." Id. at 10. Nevertheless, most evidence offered by both parties on this deficiency went to the applicable standard and actual quality of care for this resident pre- not post-April 7, 2002. The ALJ treated all of these facts as immaterial in reaching his conclusions by considering solely whether Madison implemented its plan for daily battery checks for Resident 60 after April 7, 2002. In its request for a hearing before the ALJ, Madison expressly asserted that the bed alarm "was checked for proper functioning everyday by charge nurse." P. Ex. 6, at 7. It thus appears that, contrary to what the ALJ said, Madison did deny that daily checks were not implemented after April 7, 2002. The ALJ did not provide any citation showing that Madison withdrew this contention, and we find no evidence in the record that it did so. The ALJ relied for the factual finding that daily checks were not implemented solely on allegations made by the surveyor about random battery checking (statements which the ALJ attributed to Madison's director of nursing (DON) rather than the ADON). Madison argued that it had challenged the surveyor's report of the statement as hearsay and announced its intent to cross-examine the surveyors at the hearing. Madison Br. at 15; Madison Witness List at 3. Madison appeared to assert incorrectly that the statement is simply inadmissible because it is hearsay, whereas hearsay is admitted in these proceedings, if adequate indicia of reliability are present. (5) See Richardson v. Perales, 402 U.S. 389, 410 (1971). Madison also made clear, however, that it challenged both the reliability and competence of the statement. First, the identity of the speaker is confused by the fact that the ALJ referred repeatedly to the DON, but the SOD reported interviewing the ADON. Second, the statement as summarily reported in the SOD is ambiguous. Madison argued that the alleged statement references only the regular policy and practice of the facility on checking alarm batteries, but says nothing about how frequently this resident's batteries were checked after April 7, 2002. Madison Reply Br. at 3, n.2. A close reading of the surveyor's report of what the ADON allegedly said reveals ambiguities that could be reasonably interpreted in a manner more favorable to Madison. The SOD reported the following:
P. Ex. 1, at 31 (emphasis added). A rational decision-maker could interpret this statement as saying nothing at all about whether daily checks were performed on Resident 60's alarm after the fall, but rather as simply explaining a standard base-line practice by restorative services of checking "all alarms" randomly. The statement is not inconsistent with some kinds of alarms or alarms of particular residents being checked more frequently, whether by restorative services or by other care staff. Also, since the past tense was used, the statement may have been intended merely to state what had been done prior to the fall rather than to report what practices were adopted after the fall. The ALJ also cited to surveyor notes about the statement on the resident review worksheet which are handwritten and very difficult to decipher. ALJ Decision at 6, citing CMS Ex. 23, at 4. The ALJ did not explain what support he found in those notes. It is not possible to determine on the face of these notes, without testimony from the author explaining the significance of the scribbled notations, any specifics concerning the reported interview. That the statement of an out-of-court declarant may be admissible does not preclude its opponent from challenging the credibility of the person who is reporting it or accuracy of the reported content by cross-examining the reporter of the statement, as Madison sought to do. In order to justify drawing the inference about this statement that CMS proposed, the context and specifics of what was said must be subject to exploration. The need for an opportunity to undertake such cross-examination to clarify statements subject to multiple interpretations is not the same as seeking a hearing merely on the speculation that cross-examination of surveyors may yield something useful to a facility's defense. Lebanon at 8, citing Windsor Health Care Center, DAB No. 1902 (2003). The ALJ may well ultimately find unpersuasive Madison's effort to prove that CMS is misreading the ADON/DON's statement, especially if that effort is founded only on cross-examination. As CMS noted, Madison could have offered statements from its staff, such as a statement from the DON (or the ADON) to deny or explain the statement or from the charge nurse alleged to have performed the checks to affirm doing them. See CMS Br. at 13, n.6. It cannot fairly be said, nevertheless, that the claim that daily alarm battery checks were not implemented after April 7, 2002, is not a material fact, given how the ALJ framed his analysis of this deficiency, nor that there is not a genuine dispute about that fact. Madison also reported an additional intervention after April 7, 2002, of using an adapter with the bed alarm to forestall malfunction. (6) The surveyor's notes and the SOD reflect this information. CMS Ex. 23, at 4; P. Ex. 1, at 31. The resident's plan of care notes the use of the adapter and does not mention the daily battery checks, which were noted in nurse's notes post fall. (7) CMS Ex. 23, at 8-9, 12-13. The ALJ did not address the adapter intervention in his decision. It is therefore not clear whether he concluded that the evidence regarding this information was immaterial based on his conclusion that the absence of daily battery checks was undisputed or whether he omitted it for some other reason. It would be possible for a rational decision-maker to infer from the evidence, read most favorably to Madison, that redundant interventions were adopted to prevent or detect malfunction of the alarm, that the adapter successfully prevented further malfunction given the absence of any further falls, and that battery checks, even if not performed daily, were sufficient along with the adapter to make the assistance device of the alarm perform adequately to safeguard the resident. (8) Such an inference is, again, in no way compelled by the evidence and arguments. Nevertheless, that it would be permissible means that summary judgment cannot lie on this issue. 4. The reasonableness of the amount remains at issue where the deficiency upheld by the ALJ in summary judgment differs so substantially from the findings on which CMS based the CMP. The final question addressed by the ALJ was whether the amount of the CMP imposed was reasonable. The reasonableness of the amount of a CMP is assessed based on factors set out in regulations at 42 C.F.R. � 488.438(f); see also 42 C.F.R. � 488.404. The factors generally include the facility's history of noncompliance, financial condition and culpability, as well as the seriousness of the deficiencies, the relationship of the deficiencies to each other, and the history of prior noncompliance findings. The ALJ reviews the reasonableness of the CMP de novo, based on the facts as found on the record before the ALJ. Emerald Oaks, DAB No. 1800 (2001); South Valley, supra.; CarePlex of Silver Spring, DAB No. 1683 (1999). The ALJ held that the amount of the CMP here should be upheld because it was "reasonably related to the seriousness" of Madison's noncompliance with 42 C.F.R. � 483.25(h)(2) and past history of noncompliance with that regulation. ALJ Decision at 10. The deficiency upheld by the ALJ was cited at the scope and severity level called "G," meaning that the survey assessed it as involving an isolated instance of actual harm. The ALJ noted that for purposes of his decision the actual harm is related only to Resident 85 because, in relation to Resident 60, the ALJ considered only Madison's failure to implement post-fall remedies. Id. at 10-11, n.4. The ALJ found nothing to "rebut or detract from" the evidence of repeated noncompliance resulting in harm to residents, because Madison offered only a single sentence to the effect that the $450 per day CMP was "not appropriate." ALJ Decision at 10; Madison Opposition to CMS Summary Judgment Motion at 25. The Board held in Lebanon that, "where the duration of a per day CMP or the reasonableness of the amount of the CMP are at issue, an ALJ may not dispose of the case entirely on a summary judgment motion without considering whether there is a genuine dispute of fact material to resolving those issues." Lebanon at 5. Thus, even where summary judgment properly lies against a facility as to the existence of a basis sufficient to authorize CMS to impose remedies, a factual dispute material to the factors justifying the reasonableness of the amount of a CMP may preclude summary judgment on this issue. The ALJ here in effect found no material facts in dispute on this issue because Madison did not offer distinct argument or fact allegations in the section of its opposition to summary judgment on the reasonableness of the amount of the CMP. This analysis is not sufficient to support summary judgment as to the amount of the CMP in the present situation. First, the ALJ's approach overlooks the inclusion of the seriousness and interrelationship of the deficiency findings as factors going to the reasonableness of the amount of the CMP. Madison clearly challenged facts going to these elements which require evaluation by the ALJ even assuming the existence of the deficiency were properly upheld. In this regard, for example, even the ALJ found actual harm to only one rather than two residents in the single deficiency he upheld, but did not discuss what effect if any this limitation in his consideration had on his review of the amount of the CMP. Second, the ALJ did not explain how he arrived at a judgment that the same amount of CMP remained reasonable in the absence of any findings about the validity of the other deficiency findings. CMS, on the other hand, stated in its summary judgment motion that "five deficiencies stand out as particularly serious and support a CMP of $450 per day." CMS Motion for Summary Judgment at 29. Besides the deficiency discussed here, these included three cited at "D" and one at "E." Id. CMS further stated that determining the seriousness of deficiencies often requires looking at "the specific facts," not just "the bare scope and severity level" reflected in the letter rating. Id. at 28. By way of example, CMS contrasted a "G" level deficiency involving a "relatively minor laceration" due to inadequate supervision (which merited a "G" level because the harm was actual) with a "D" level deficiency which can be as or more serious, such as an alleged failure by Madison to obtain laboratory tests which put a resident at risk of fatal consequences (but which merited only a "D" as creating the "potential for serious harm"). Id. That CMS considered at least four other deficiencies to present very serious problems raises the question of how the same amount can be appropriate when only one deficiency is involved as when all five are considered. CMS also argued before the ALJ that the relationship among the deficiencies was a relevant factor here. CMS Summary Judgment Motion at 30; see 42 C.F.R. � 488.404. CMS suggested that the pattern of deficiencies showed a "systemic indifference to the provision of professional care to these vulnerable residents, cutting across nursing, activities, social services and dietary." CMS Summary Judgment Motion at 30. Obviously, these considerations could not be taken into account by the ALJ in assessing the reasonableness of the CMP without reviewing challenges to the other deficiencies. Similarly, CMS argued that culpability supported the CMP amount because the deficiencies it cited showed "neglect or indifference" to its residents, but the ALJ did not analyze how the culpability assessment might change or how such a change might impact the appropriate CMP amount, where only one deficiency finding was considered. (9) The ALJ did not discuss the elements considered by CMS but argued that $450 is "at the lower end" of the applicable range since it constitutes 15% of the maximum available CMP of $3,000 per day and since he concluded that the "undisputed facts" show an actual harm level deficiency and a prior noncompliance finding at the "G" level in September 2001. ALJ Decision at 10-11. In light of our conclusion that there are indeed material facts in dispute relating to the single deficiency finding, the reasonableness of the amount of the CMP must be reviewed de novo by the ALJ after resolving the factual disputes and conflicting inferences on a full evidentiary record. In addition, where a CMP is upheld based on a subset of cited deficiencies, it is important that the ALJ make clear how he has independently applied the regulatory factors to arrive at this result despite any changes in the number of and facts underlying the deficiencies upheld compared to those either overturned or unaddressed. It is not enough to say that the facility did not argue that the amount was unreasonable, where the facility did dispute the underlying facts of the findings of noncompliance. An amount accepted as reasonable if CMS were to succeed in all its allegations may not be accepted as reasonable if only some subset is upheld, yet the facility would not have an opportunity to raise such a contention without knowing what subset the ALJ would select to address. We do not preclude the ALJ from ultimately finding the same amount to be reasonable even for a single deficiency, after evaluating the facts found against the regulatory factors. It is possible that an amount that was within a reasonable range of options for CMS to impose for multiple serious deficiencies would also be within a reasonable range to address a single serious repeat deficiency under tag 324 given the particular facts and circumstances found. Summary judgment is inappropriate on this issue, however, where Madison has conceded neither the facts underlying the deficiency finding nor the appropriateness of the amount to address the deficiency singled out in the ALJ Decision. CONCLUSION For the reasons above, we reverse the ALJ's determination that summary judgment in favor of CMS was appropriate and remand the case to the ALJ for further proceedings consistent with this decision. |
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| JUDGE | |
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Cecilia Sparks Ford Donald F. Garrett Judith
A. Ballard |
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| FOOTNOTES | |
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1. In the present matter, as in Lebanon, the ALJ gave notice to the parties that he would apply FRCP Rule 56 in considering any motion for summary judgment. 2. By applying this assumption to our review, we in no way prejudge whether the present or the other deficiencies might be sustained by the ALJ after taking evidence and holding a hearing in this case. 3. The Board noted in Lebanon that the fact that a resident is unattended at a particular moment does not necessarily equate to being unsupervised and that expert testimony may establish levels of supervision "that do not necessarily mean being right next to the resident." Lebanon at 15, n.5. Madison argued that the testimony that the resident was under the general supervision of staff raised a genuine issue of material fact as to what the nature of the supervision was and what other level of "close supervision" referenced by the ALJ would have been "appropriate and practicable." Madison Br. at 8-10. 4. A rational decisionmaker might alternatively conclude that promoting ambulation after an injury also implied taking necessary steps to prevent re-injury and that, for example, one-on-one supervision of walking attempts was practicable and reasonable, and therefore required. The point in the text is not that these inferences are preferable or even likely, but only that they are within those available to a rational decisionmaker. 5. CMS also argued that statements by Madison's ADON or DON would be admissible in court as non-hearsay because they would constitute admissions of a party-opponent. CMS Br. at 13. We do not address the question of whether the alleged statement meets the specific criteria for party admissions which should be addressed in the first instance by the ALJ at the hearing. Our point is simply that, even assuming the statement is admissible, it does not on its face unambiguously assert that the resident's battery was not checked daily after the fall. CMS also argued that the statement, hearsay or not, was the only evidence on whether daily battery checks took place after April 7, 2002, so the point was effectively conceded by Madison. Id. We do not agree. Madison asserted that the daily checks were done, provided an incident report planning for them, and offered evidence that no further falls or malfunctions occurred, from which it would be possible (though not mandatory) to infer that the checks were performed. Again, whether or not the evidence ultimately persuades the ALJ that the daily checks were done, CMS overstated the record in contending that no evidence was offered to contradict its interpretation of the ADON/DON statement. 6. It is not disputed that other interventions had already been added before April 7, 2002, including the use of a low bed and padding and a gerichair with tray while seated. P. Exs. 8 and 16. 7. The plan of care calls for a "pressure alarm to bed and chair," which may be a change from or addition to the body alarm in bed used before the fall. CMS Ex. 23, at 9; see also CMS Ex. 23, at 4, 14. A hearing will permit this question to be elucidated as well. 8. CMS proffered evidence that the standard of care for batteries in "personal alarms" was to check them daily. Madison offered evidence in the record sufficient, however, to raise a genuine dispute about whether a professional standard applied here that required daily checks of the batteries in the alarm(s) used by this resident under all the circumstances here. 9. In theory, the same concerns may arise in regard to the duration of the remedy, since CMS did not specify whether the alleged lack of daily battery checks continued until the date that substantial compliance was found or whether the tag 324 findings were resolved at some earlier date. | |