SUBJECT:

Birmingham Nursing & Rehabilitation Center - East

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose civil money penalties of $300 per day against Petitioner, Birmingham Nursing & Rehabilitation Center - East, during a period that began on September 11, 2003 and which ran through October 2, 2003. The total amount of civil money penalties that I sustain is $6,600.

I. Background

Petitioner is a long-term care facility, dually certified to participate in the Medicare and Medicaid programs, and located in Birmingham, Alabama. Its participation is governed by sections 1866, 1819 and 1919 of the Social Security Act (Act) and by regulations at 42 C.F.R. Parts 483 and 488.

On September 11, 2003, surveyors employed by the Alabama Department of Public Health surveyed Petitioner to determine whether it was complying with Medicare participation requirements. The surveyors concluded that Petitioner was not complying with a single requirement, as stated at 42 C.F.R. � 483.25(h)(2). This requirement directs a participating facility to ensure that each of its residents receives adequate supervision and assistance devices to prevent accidents. The surveyors subsequently concluded, at a follow-up survey, that Petitioner had re-attained compliance with this requirement by October 3, 2003.

CMS accepted the surveyors' findings and determined to impose remedies against Petitioner consisting of civil money penalties in amounts of $300 per day for each day of Petitioner's noncompliance. Petitioner requested a hearing from CMS's determination and the case was assigned to me for a hearing and a decision.

I held a hearing in Birmingham, Alabama on October 27, 2004. At the hearing, I received the testimony of several witnesses. I received exhibits from CMS consisting of CMS Ex. 1 - CMS Ex. 25 and from Petitioner consisting of P. Ex. 1 - P. Ex. 19 and P. Ex. 21 - P. Ex. 25. ⁽¹⁾ Each party filed pre- and post-hearing briefs.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. Petitioner failed to comply substantially with the participation requirement at 42 C.F.R. � 483.25(h)(2);

2. Petitioner's noncompliance (if there was noncompliance) occurred over a period from September 11 through October 2, 2003; and

3. Civil money penalties of $300 per day are reasonable remedies for the noncompliance that Petitioner may have manifested.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(h)(2).

The requirement that a facility ensure that its residents receive adequate supervision and assistance devices to protect against accidents is not one of strict liability. A facility is not liable per se for each accident that occurs on its premises. But, a facility is under an obligation to do everything within its power to provide its residents with adequate supervision and assistance devices, in order to prevent the occurrence of accidents that are foreseeable. With respect to each of its residents, a facility must: (1) identify any potential deficits or problems that might make that resident prone to sustaining an accident; (2) develop a workable plan to address any deficits or problems that are identified or which ought to be identified; and (3) implement measures that are practical, i.e., which work, to address the resident's problems and deficits.

This case involves the care that Petitioner gave to a single resident who is identified as Resident # 4 in the report of the September 2003 survey. As I shall discuss, Petitioner identified this resident's problems and deficits and developed an approach to address them. But, there was a failure of execution on Petitioner's part that led to an avoidable accident and injury to the resident.

Petitioner's staff knew that the resident was an elderly, frail, demented individual with tendencies to wander and to fall. CMS Ex. 13, at 2. Indeed, the resident fell on several occasions while he resided at Petitioner's facility. Tr. at 53. These falls included either falls directly from the resident's bed or falls that the resident sustained after he climbed out of his bed while unattended by Petitioner's staff.

Petitioner attempted to address the resident's falling problem, in part, by installing a bed alarm in the resident's bed. CMS Ex. 13, at 1 - 2. The bed alarm was a pressure operated device that was placed between the resident's body and the bed's mattress. The alarm was designed to sound when pressure, caused by the weight of the resident's body against the alarm's sensor pad, was released. Tr. at 16 - 18; P. Ex. 21, at 2. In other words, the alarm, if operating, was supposed to sound when the resident attempted to get out of bed. P. Ex. 21, at 2.

On September 9, 2003, Resident # 4 sustained a fall. CMS Ex. 11, at 14. He had been put to bed, but shortly thereafter he was found lying on the floor of his room with a laceration to his head. Id. The resident stated that he was walking and fell. Id. Given the resident's dementia, it is unclear from the circumstances in which the staff found the resident and the resident's account whether the resident fell directly from his bed to the floor, or whether he fell after he left his bed. However, there is no doubt that the resident had been in bed immediately prior to the fall. His bed alarm had not sounded when the resident left his bed.

On this occasion, Resident # 4 was assigned to the care of Ms. Rasheena Olds, a licensed practical nurse. Tr. at 54 - 55. Ms. Olds was the first person to attend to the resident after his fall on September 9. At first, she failed to notice the presence of a bed alarm. P. Ex. 21, at 2. The bed alarm sensor pad was not on the resident's bed. Tr. at 58. Later, Ms. Olds found a bed alarm and sensor pad on the floor, beside the resident's bed. CMS Ex. 10, at 12; Tr. at 58; P. Ex. 21, at 2. The alarm switch was in the "on" position. Tr. at 59; P. Ex. 21, at 2. However, the alarm was not working. Id.

CMS argues that the foregoing facts support a finding that Petitioner failed to discharge its duty to provide adequate supervision and assistance devices. It contends that the evidence in this case is prima facie proof that Resident # 4's bed alarm failed to function properly and, so, failed to provide the resident with adequate protection against falling. Petitioner disputes this contention. It asserts that, in fact, it took all reasonable measures to protect the resident. Moreover, it argues that it is not possible to say whether the alarm malfunctioned on September 9, 2003. Possibly, according to Petitioner, the alarm was functional, but was damaged by the resident when he dislodged it while exiting his bed.

I find the evidence offered by CMS to be persuasive, prima facie proof that Petitioner did not provide Resident # 4 with adequate supervision and assistance devices. The most reasonable inference that I can draw from this evidence was that the resident's bed alarm did not function correctly on September 9, 2003. Certainly, it is possible that the alarm pad and sensor, or the alarm's electronic mechanism may have been damaged when they fell from the resident's bed to the floor. But, given that the device was pressure-operated, it should have sounded an alarm, if it was functioning properly, the instant the resident attempted to leave the bed. The fact that the alarm did not sound at all is strong evidence that it was not functioning to begin with.

Petitioner had a duty to assure that the alarm was functional. Petitioner chose to address the resident's tendency to leave his bed while unattended by placing an alarm in his bed. There were other approaches that Petitioner could have used to address this problem. For example, Petitioner could have placed the resident under continuous observation while he was in bed. However, once Petitioner opted to utilize an alarm to protect the resident, it assumed the responsibility of making sure that the alarm worked properly. The evidence in this case demonstrates clearly that Petitioner failed to discharge that responsibility.

I stress that I am not concluding that Petitioner's choice to protect the resident with a bed alarm was inappropriate. A bed alarm may be an effective means to protect a resident from leaving his or her bed while unattended. But, if Petitioner chooses that mechanism as an assistance device, then it must assure that it works effectively. The prima facie evidence is that Petitioner failed to do so in the case of Resident # 4.

Petitioner did not rebut CMS's prima facie case. First, Petitioner asserts that it regularly checks its residents' bed alarms. It acknowledges that, on the night of September 9, 2003, Ms. Olds failed to check Resident # 4's alarm, but argues that this was an aberration because certified nursing assistants had put the resident to bed only moments before he fell. Petitioner's Post-hearing Brief at 5. That may be so, but it is not a defense to evidence showing that Petitioner failed to provide Resident # 4 with an effective alarm. The evidence relied on by Petitioner suggests that there was a flaw in Petitioner's system of protecting its fall-vulnerable residents - and, in particular, Resident # 4 - with bed alarms. It shows that the safeguard that Petitioner relied on to assure that a bed alarm was functioning could be and was defeated by a deviation from Petitioner's protocol for putting a resident to bed.

Second, Petitioner asserts that Ms. Olds replaced Resident # 4's alarm as soon as she discovered that it was not working. Petitioner's Post-hearing Brief at 5. That was certainly appropriate. But, it is no defense to the failure of Petitioner's staff to assure that the alarm was working at the time that Resident # 4 was put to bed on September 9, 2003.

Third, Petitioner asserts that it regularly monitored Resident # 4 for his safety and for placement and functioning of bed and chair alarms. Petitioner's Post-hearing Brief at 6 - 7. There is no reason for me to doubt the truth of this assertion. However, it does not gainsay the fact that, on September 9, 2003, there was a breakdown in Petitioner's monitoring system. On that date, Resident # 4's bed alarm was not checked to see whether it was functional prior to the resident being put to bed. Moreover, the potential adverse consequence of that breakdown - that the alarm might not work and that the resident might fall - clearly was foreseeable. Whatever safeguards Petitioner had in place failed on September 9, 2003.

Fourth, Petitioner contends that Resident # 4's bed alarm was in place on the night of September 9, 2003. Petitioner's Post-hearing Brief at 8. However, although that may be true, it does not gainsay the fact that the alarm did not function properly. Petitioner did not discharge its obligation to protect Resident # 4 by placing an alarm on his bed. Its duty was to place a functioning alarm on the resident's bed. It failed to discharge that duty because its staff failed to test the resident's alarm on the night of September 9, 2003 before putting the resident to bed.

Finally, Petitioner argues that it implemented other supervisory interventions to assure that Resident # 4 would not fall. Petitioner's Post-hearing Brief at 9 - 10. These steps included the use of a chair alarm and a lap buddy to protect the resident from falling from his wheelchair; supervision of the resident while he was seated; occupational therapy for the resident; use of a low bed position; instruction via safety cues; and use of a functioning call light in the resident's room. Id.

In addition to these general supervisory and assistance steps, according to Petitioner, it implemented specific changes in its monitoring routine of Resident # 4 to address problems that were identified each time the resident fell. For example, on August 23, 2003, the resident was found on the floor of his room twice during early morning hours. P. Ex. 13; P. Ex. 14. Petitioner responded to these events by instituting, among other things, hourly monitoring of the resident. P. Ex. 14, at 2. Early on the morning of August 24, 2003, the resident was again found on the floor of his room. Once again, Petitioner tailored its supervision of the resident by, among other things, deciding to monitor him at 15-minute intervals. P. Ex. 15, at 2.

All of these supervisory and assistance measures, both general and specific, are certainly laudable and appropriate. But, they do not detract from the flaw in Petitioner's monitoring system that was made apparent on September 9, 2003. What these measures show is that Petitioner was well-intentioned in providing care to Resident # 4. However, they do not excuse the failure of Petitioner's staff to execute effectively the safety measures that were developed for the resident.

2. The evidence supports CMS's determination that Petitioner remained noncompliant from September 11 through October 2, 2003.

There is a presumption that a facility that is noncompliant with a participation requirement remains out of compliance until it demonstrates that it has corrected its deficiency. Thus, it is not CMS's obligation to prove that Petitioner was continuously noncompliant from September 11, 2003 through October 2, 2003. Rather, it is Petitioner's obligation to prove that it, in fact, came into compliance at a date that is earlier than October 3, 2003, the date when CMS determined that Petitioner had re-attained compliance.

I find that Petitioner failed to establish that it re-attained compliance earlier than the October 3, 2003 compliance date determined by CMS. Petitioner asserts that Resident # 4 was given a functioning bed alarm on September 9, 2003, immediately after the non-functioning alarm was detected. Petitioner's Post-hearing Brief at 11; P. Ex. 9, at 22 - 23. That may be so, but it begs the question of whether Petitioner was back in compliance at that time. Petitioner's deficiency in this case arises from its failure to implement effectively measures to ensure that its bed alarms were functioning. Replacing Resident # 4's alarm may have been a necessary action. But, that act alone did not assure that he, or for that matter, other residents, would be provided with functioning alarms on future dates. In order to assure that functioning alarms would be provided in the future, Petitioner had to redress the failure by its staff to check adequately bed alarms before their use.

The evidence in this case establishes that Petitioner addressed this issue by in-servicing its staff on application of devices to prevent accidents. CMS Ex. 3, at 2. Additionally, Petitioner required its licensed nurses to document each shift that alarms were in place and functioning. Id. Petitioner did not fully implement these measures prior to October 3, 2003. Id.

3. Civil money penalties of $300 per day are reasonable.

Regulations provide that civil money penalties ranging from $50 - $3,000 per day may be imposed to remedy noncompliance that does not rise to the level of immediately jeopardizing the health and safety of a facility's residents. 42 C.F.R. � 488.438(a)(1)(ii). Determination of the actual amount of a penalty within this $50 - $3,000 depends on evidence relating to factors that are described at 42 C.F.R. �� 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. � 488.438(f)(3)). These factors may include: the seriousness of a facility's noncompliance; its compliance history; its culpability; and its financial condition.

Here, neither party has contended that a penalty amount should be based on Petitioner's compliance history, culpability, or financial condition. As Petitioner observes, there is no evidence showing that Petitioner has a history of noncompliance. Petitioner's Post-hearing Brief at 12. Petitioner has not provided any evidence to show that its financial condition precludes it from paying either the daily penalty amount of $300 or aggregate penalties of $6,600 (determined by multiplying $300 per day times 22 days of noncompliance).

I conclude that penalties of $300 per day are reasonable in this case based solely on evidence pertaining to the seriousness of Petitioner's noncompliance. Petitioner's failure to assure that Resident # 4 had a working bed alarm resulted in injury to the resident. Petitioner's failure to have an effective system to ensure that its alarms were functional potentially put other residents at similar risk. The sum of $300 per day actually is relatively modest in light of the harm caused, or potentially caused, by Petitioner's noncompliance. It comprises only 10 percent of the maximum allowable civil money penalty amount for non-immediate jeopardy level penalties.

Steven T. Kessel

Administrative Law Judge

1. Petitioner withdrew its Exhibit 20 at the hearing. Tr. at 49.