Beverly Healthcare Lumberton v. Michael Leavitt, No. 08-1447 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1447 BEVERLY HEALTHCARE LUMBERTON, Petitioner, v. MICHAEL O. LEAVITT, Secretary of the Department of Health & Human Services; DEPARTMENT OF HEALTH & HUMAN SERVICES, United UNITED States STATES Respondents. On Petition for Review of an Order of the United States Department of Health & Human Services. (C-06-20; A-07-134) Argued: May 13, 2009 Decided: July 22, 2009 Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges. Petition for review denied by unpublished per curiam opinion. ARGUED: Joseph L. Bianculli, HEALTH CARE LAWYERS, PLC, Arlington, Virginia, for Petitioner. Erica Cori Matos, UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES, Atlanta, Georgia, for Respondents. ON BRIEF: Peter D. Keisler, Assistant Attorney General, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Thomas R. Barker, Acting General Counsel, Dana J. Petti, Chief Counsel, Region IV, UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES, Atlanta, Georgia, for Respondents. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Beverly Healthcare Lumberton (Beverly) challenges civil money penalties (CMPs) imposed by the Centers for Medicare & Medicaid Services (CMS) for violations of the Medicare and Medicaid sustained statutes by adjustments, (DAB) of an and the and regulations. administrative affirmed U.S. These law by the Department of judge penalties (ALJ), Departmental Health and were with minor Appeals Board Human Services. Because we find no reversible error in the DAB s decision, we deny Beverly s petition for review. I. Beverly is a skilled nursing facility located in North Carolina that participates in both the Medicare and Medicaid programs. Services The North Carolina Department of Health and Human (the state survey agency), the agency in charge of surveying healthcare facilities that participate in Medicare and Medicaid, conducted a ended August 4, 2005. complaint survey against Beverly that The survey found that Beverly was not in substantial compliance with three requirements for participation in Medicare and Medicaid programs. found to have (1) failed to Specifically, Beverly was provide an environment free of abuse, in violation of 42 C.F.R. § 483.13(b); (2) failed to report and investigate allegations of abuse, in violation of 42 2 C.F.R. §§ 483.13(c)(2), (3); and (3) failed to develop and implement policies to prevent abuse of residents, in violation of 42 C.F.R. § 483.13(c). These that took violations place April 9, residents, George Hunt 1 . stemmed 2005, primarily involving from one an of incident Beverly s Hunt was an 87-year-old man with a history of insomnia, falls, and dementia. Hunt had fractured his hip in a fall in December of 2004, which resulted in a physician ordering a soft safety belt to help restrain Hunt in his wheelchair. In the early morning of April 9, 2005, Hunt was sitting in his wheelchair at the nurse s station when he removed the soft waist restraint belt keeping him in the wheelchair and became combative with the two nurses at the station, Marilyn Marino and Octavia Taylor. Both nurses attempted to prevent Hunt from falling and to persuade him to relinquish the waist restraint, which he continued to hold. The nurses called a nursing assistant, Charles Robinson, to come and assist them because the nursing assistant who was present was too small to handle Hunt. While attempting to subdue Hunt, Robinson grabbed Hunt s right arm and tried to get the restraint out of Hunt s 1 The description of the incident by the ALJ and DAB was taken primarily from a nurse s note prepared by Nurse Marilyn Marino shortly after the incident. Because the complaint survey uncovered multiple complaints, the resident at issue here is sometimes referred to in the record as Resident #2, or R2. 3 left hand. release After the Hunt restraint pulled arm away Robinson, to his one of and the refused nurses to asked Robinson to let go of Hunt s arm, and then managed to persuade Hunt to give up the restraint. Robinson then grabbed [Hunt s] arms roughly while the nurses re-applied the restraint. App x A at 369; Admin. App x B at 450. back in place, Robinson released After the restraint was Hunt s removed the restraint for a second time. to grab [Hunt s] arms but [Hunt] Admin. arms, but Hunt then Robinson then tried started swinging Admin. App x A at 370; Admin. App x B at 451. at him. At that point, Robinson grabbed both of [Hunt s] wrists and would not let go. Admin. App x A at 370. that midnight. Robinson angrily answered, He s not going to bed, then wheeled needed Hunt to to his go room to Nurse Marino then suggested and Hunt Admin App x B at 451. to bed, as clean it and was change past him because he had become incontinent either before or during the incident. Admin. App x A at 370; Admin. App x B at 451. About ten minutes later, Robinson returned with Hunt, who had been cleaned and changed. Hunt appeared upset and his eyes were watery and his lips were quivering. at 370; Admin. App x B at 451. Hunt then pointed to his wrist and said to Nurse Marino, you broke my heart. at 370, B at 451. Admin. App x A Admin. App x A Nurse Marino observed redness and edema on Hunt s wrists three to four inches up his forearm, as well as 4 redness on his hand. Hunt told Nurse Marino that it hurt, and when she touched his wrist he pulled away and said ow. App x A at 370-71. (April 10), bruises on When Nurse Marino returned the next morning Hunt the Admin. showed wrist. her his Nurse right Marino arm, had which begun had dark preparing a nurse s note on the day of the incident, April 9, 2005, and completed the note on April 11, 2005. Robinson continued to work over the weekend and provided care to multiple residents, including Hunt, without further incident. The Thompson, Director was not of Nurses contacted on (DON) the at date Beverly, of the Roxanne incident. Thompson learned of it when she came in to work on Monday, April 11, and she then reviewed the weekend incident log. day she received began Nurse a routine Marino s investigation into note. a In the That same incident follow-up and interview conducted by the North Carolina surveyor, Thompson said that had she been on duty at the time of the incident, Robinson would have been suspended immediately. Instead, Robinson was suspended on April 11 and subsequently terminated on April 14. However, Thompson s investigation ultimately Robinson had not abused the resident. concluded that Thompson finished her report and filed it with the state survey agency on April 12, 2005. She also filed a required five day report on April 15, 2005. 5 The complaint survey that concluded on August 4, 2005, also cited two other incidents. member of another resident 2 at On March 22, 2005, a family Beverly filed a grievance asserting that a nursing assistant had told the resident that she better not turn the call light back on again because the nurses were short staffed. B at 465. Admin. App x A at 394; Admin. App x The action was documented on April 8, 2005, and the five day report was filed on May 24, 2005. By that time, the nursing assistant involved in the incident no longer worked at Beverly for unrelated reasons. In the remaining incident, on April 8, 2005, a third nursing assistant was reported for yelling at a resident 3 . The nursing assistant involved was suspended on April 11, 2005, and terminated on April 14, 2005. A twenty-four hour report found in Beverly s files was undated and the five day report for the incident was dated April 19, 2005. The reports. state agency took no action on these initial The citations at issue were instead issued by State Surveyor Patrick Campbell, who arrived at Beverly s facility on July 27, 2005, to investigate an unrelated complaint of 2 This resident is referred to as Resident #1, or R1, in the record. 3 This resident is referred to as Resident #3, or R3, in the record. 6 inadequate care. Campbell had been sent to investigate a complaint that involved care provided by his own sister, who was a nurse at Beverly s facility. This conflict of interest should have disqualified Campbell from proceeding with the survey, but the conflict was unknown to Beverly at the time. After reporting that he could not substantiate the complaint he was sent to investigate, Campbell proceeded, apparently of his own initiative, to begin a search of unrelated records at Beverly. In the course of that search, Campbell found Nurse Marino s note on the April 9 incident. Upon completing his investigation on August 4, 2005, Campbell cited Beverly for the three violations listed above, based primarily upon Nurse Marino s note and recommended that the subsequent interviews. The state survey agency then Secretary of the U.S. Department of Health and Human Services (Secretary), through the Centers for Medicare Services (CMS), impose penalties against Beverly. & Medicaid CMS found that Beverly was not in substantial compliance with 42 C.F.R. §§ 483.13(b), (c), and (c)(2), (3) and that Beverly s violations constituted immediate jeopardy to its residents during the period from April 9 to April 14, 2005 (when nursing assistant 7 Robinson was terminated). 4 As a result, CMS imposed a CMP of $3,050 a day for April 9 through April 14, 2005. CMS also found a continuing violation, at a lower severity level, for which it imposed a CMP of $1,000 a day for April 15 through August 4, 2005. 5 The daily penalties ceased accruing on August 4, when Beverly submitted a plan of action stating that all staff had been in-serviced on proper policy regarding abuse allegations. Beverly also grievances stated between that January it had 1, completed 2005, and a review of all August 4, 2005, to ensure they had all been reported and investigated. Beverly requested a hearing, and the case was heard before an ALJ. The ALJ sustained all of CMS s findings, with the sole exception that he applied the $3,050 CMP from April 9 through April 11, 2005, rather than through April 14, because he concluded that immediate jeopardy had ended once Robinson was suspended. Beverly appealed to ALJ s decision in its entirety. the DAB, which affirmed the On April 3, 2008, Beverly filed 4 Each deficiency is placed in one of four severity categories: (i) no actual harm with potential for minimal harm; (ii) no actual harm with potential for more than minimal harm that is not immediate jeopardy; (iii) actual harm that is not immediate jeopardy, and (iv) immediate jeopardy to resident health or safety. 42 C.F.R. § 488.404(b)(1). Deficiencies are also classified as isolated, constitut[ing] a pattern, or widespread. Id. § 488.404(b)(2). 5 CMS also imposed other penalties not at issue here. 8 a petition to reopen the DAB s decision pursuant to 42 C.F.R. § 498.100, which the DAB summarily denied on May 2, 2008. Beverly then filed a petition for review in this court under 42 U.S.C. § 1320a-7a(e). II. Beverly raises imposition of CMPs. failed to Second, determination jeopardy). any argues as challenges to the Secretary s First, Beverly contends that the Secretary establish Beverly four to of the that the three the level of alleged Secretary violations. erred non-compliance in his (immediate Third, Beverly asserts that the CMPs imposed are unreasonable. Finally, Beverly maintains that the DAB erred in overlooking the state surveyor s conflict of interest. A. CMS s findings of fact are conclusive if supported by substantial evidence on the record considered as a whole. U.S.C. § 1320a-7a(e). substantial evidence evidence a as (National in reasonable support a conclusion. (1971) The Labor Supreme other mind Court contexts might as accept 42 has described such relevant as adequate to Richardson v. Perales, 402 U.S. 389, 401 Relations Act). CMS may impose CMPs (among other remedies) when it determines that a long-term care facility has failed to substantially comply with participation 9 requirements. 42 U.S.C. § 1395i-2(h)(2)(B)(ii) ( The Secretary may impose a civil money penalty in an amount not to exceed $10,000 for each day of noncompliance. ); 42 C.F.R. 488.301 ( Noncompliance means any deficiency that causes a facility to be not in substantial compliance. ). Substantial compliance is defined as a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm. 42 C.F.R. § 488.301. We address each of the alleged violations in turn. 1. Beverly was cited for violating 42 C.F.R. § 483.13(b), which prohibits abuse of residents. Facilities participating in Medicare and Medicaid programs are forbidden from using verbal, mental, sexual, or physical involuntary seclusion. § 483.13(b). abuse, corporal punishment, 42 C.F.R. § 483.13(c)(1)(i). or See also The U.S. Department of Health and Human Services (USHHS) defines abuse as the willful infliction of injury, unreasonable confinement, intimidation, or punishment resulting physical harm, pain, or mental anguish. § 488.301. with 42 C.F.R. The Secretary s interpretive guidelines state that a resident has been physically abused when (1) physical contact was made (2) that was intentional or careless, (3) there was resulting harm or a likelihood 10 of physical injury, pain, or death to the resident, and (4) there was a lack of reasonable justification for the contact. 6-4, USHHS State Operations Manual at available at http://www.michigan.gov/documents/mdch/bhs_ch6_mom_abuse_etc_223 590_7.pdf. There is a presumption that physical abuse has occurred whenever there has been some type of impermissible or unjustifiable physical contact with a resident that has resulted in injury or harm to the resident. Id. The USHHS manual includes squeezing . . . any part of the resident s body as an example of potentially abusive treatment. USHHS State Operations Manual at 6-4. However, the manual also states that physical care, contact during comfort, or assistance is permissible when the type of contact involved and the amount of force used are absolutely necessary in order to provide care. USHHS State Operations Manual at 6-5. When the contact occurs in the course of attempting to restrain a resident s behavior in an emergency, it is permissible if both the type of contact involved and the amount of force used are reasonably necessary in order to prevent that resident from injuring himself/herself, injuring another person, or damaging property. Id. The ALJ s conclusion that Robinson s conduct amounted to abuse was based almost exclusively on Nurse Marino s note, which the ALJ found to be the account concerning the incident. 11 most complete J.A. at 301. and reliable The ALJ found that Robinson treated the elderly resident in an angry manner that was not services to accidental the retaliatory. or resident. J.A. 302. necessary In fact, in it providing and intentional was care and The ALJ also accepted Nurse Marino s description of the resident s physical injury. According to the ALJ, the only reasonable interpretation of Nurse Marino s note was that the incident constituted abuse. In making this finding, the ALJ chose not to credit later interviews in which nurses and nursing assistants who were involved, including Nurse Marino, said abusive. evidence that Beverly that they did not consider argues that the ALJ conflicted with Nurse Robinson s erred Marino s by conduct disregarding note, and the facility attempts to characterize Robinson s conduct as poor technique, rather than abuse. Beverly s that either the arguments notwithstanding, ALJ s the or Secretary s unsupported by substantial evidence. we cannot say decision was Nurse Marino s note, which was the most contemporaneous description of the incident, states that nursing resident in assistant a manner Robinson the nurse roughly found handled excessive. an elderly Robinson grabbed and held the resident s arms at least twice, and there is no dispute that this contact resulted in injury. While there is also evidence that cuts in Beverly s favor - for instance, the Social Security Administration 12 concluded that the abuse allegation was unsubstantiated - it was for the ALJ to make determinations in the proceeding before him as to the weight of evidence and credibility of witnesses. He chose to credit Nurse Marino s note over later statements, and that note alone, due to its thoroughness and proximity to the event, was sufficient to constitute substantial evidence of abuse. 2. Beverly § 483.13(c)(2), was which ensure that all neglect, or abuse . of the administrator also cited requires alleged . for participating violations . are facility accordance with State law. violating involving 42 facilities to mistreatment, reported immediately and other to C.F.R. to officials the in Further, facilities must promptly investigate all allegations of abuse and [t]he results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law . . . within 5 working days of the incident. C.F.R. § 483.13(c)(4). 42 Under North Carolina law, facilities are required to file an initial 24-hour report within twenty four hours of an alleged incident of abuse and also a five day report following a fuller investigation. 10A N.C. Admin. Code. 13D.2210(b), (d). There is no doubt that Beverly failed to timely report each of the cited incidents. The twenty-four hour report for 13 the April 9, 2005, incident was filed on April 12 (two days late), and the five day report was filed on April 15 (one day late). The March 22, 2005, complaint was not documented until April 8 (sixteen days late), and its five day report was not filed until May 24 (two months late). The April 8, 2005, report of a nursing assistant yelling at a resident had an undated twenty-four hour report on file, but its five day report was not filed until substantial April 19 evidence (six to days support late). the Thus, ALJ s there conclusion was that Beverly had violated the reporting requirements. Beverly incident involving violation that nursing because unsubstantiated within asserts twenty-four DON and Thompson five learning of the incident herself. reporting Robinson allegations because hours late assistant the and the days, were filed was of not the a ultimately the reports respectively, of Both arguments must fail. First, it is the allegation that triggers the responsibility to Cedar View Good Samaritan, DAB No. 1897, at 11 (2003). report. Even if the ALJ found there was no abuse, Beverly s failure to promptly investigate and report the allegation violated 42 C.F.R. § 483.13(c)(2) and 10A N.C. Admin. Code. 13D.2210(b), (d). Second, it is irrelevant that the DON did not learn of the incident for two days. within five days of The federal statute requires a report the incident, 14 while the state statute requires reports within one and five days of when the health care facility (not a specific person) learns of the allegation - which in this case occurred when the resident, Hunt, alerted See 42 C.F.R. § 483.13(c)(2); 10A Nurse Marino to his injury. N.C. Admin. Code. 13D.2210(b), (d). Thus, the time at which Thompson learned of the incident is irrelevant to the deadline for filing the required reports. 3. Finally, § 483.13(c), implement Beverly which was states written cited that policies for violating facilities and must procedures had failed to follow proper C.F.R. develop that mistreatment, neglect, and abuse of residents. Beverly 42 and prohibit CMS found that procedures related to immediately reporting allegations of abuse against residents to the facility administrator. The ALJ found that Beverly had failed to follow its own procedures - which provide that any associate abused (employee) must (administrator) with law -- outlined above. who immediately and by suspects that notify the appropriate not timely a resident executive state agencies reporting the J.A. at 303. in three has been director accordance incidents The ALJ further concluded that these failures to implement Beverly s own policies indicate[d] a wider systemic problem in the facility, and that the failure 15 to actually implement facility policy against abuse and neglect leaves residents at real risk for serious harm. Beverly improper for argues three that the reasons. ALJ s First, it J.A. at 308. determination asserts that is its employees did not fail to follow procedure because the procedure is only triggered when someone actually suspects an abuse has occurred. federal This argument has little traction, however, because law requires Beverly s procedures to require investigation of all allegations of abuse, not just those that facility employees § 483.13(c)(2). believe are legitimate. See 42 C.F.R. Beverly thus violated § 483.12(c) either by not having adequate reporting policies or by having them and failing to follow them. Second, Beverly argues that it is pointless to punish the two-day delay in reporting the Robinson incident to the state survey agency because no one was working at the agency over the Beverly s weekend. primary This failure misses was the the lack point, of however, reporting since to the facility administrator and DON so that proper action could be taken. days Instead, the DON did not learn of the incident for two while Robinson continued to work at Beverly. Third, Beverly argues that the ALJ should not have concluded that the three incidents at issue constituted a systemic pattern, and contends instead that these were isolated incidents. We conclude, however, that Beverly s multiple failures to report 16 allegations of abuse over a short period, spanning roughly two months, amounted to substantial evidence on which the ALJ could properly base his finding of a systemic violation. B. Beverly alleged error. claims violations that amounted CMS s to determination immediate that jeopardy was the in In cases when a CMP is imposed, CMS s determination as to the level of noncompliance . . . must be upheld unless it is clearly erroneous. 42 C.F.R. 498.60(c)(2). Immediate jeopardy is defined in the Code of Federal Regulations as a situation in which the provider s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. C.F.R. § 488.301. . . . does encompasses Thus, not require a situation [a] a finding finding that is of of immediate present likely to harm, 42 jeopardy but cause also harm. Hermina Traeye Memorial Nursing Home, DAB No. 1810 (2002). Under the clearly erroneous standard of review, the ALJ reduced the length of the immediate jeopardy period by three days, concluding that it had ended on April 11, 2005, rather than April 14. clearly We hold that this determination was itself not erroneous. Both Nurse Marino and Nurse Taylor recognized that nursing assistant Robinson s actions at the very least might have constituted abuse. 17 Yet the incident went unreported for two days, during which time Robinson continued to work at Beverly and give care to the resident he had allegedly abused. The fact that no further harm occurred is irrelevant, as only the possibility of harm is required under § 488.301. CMS s determination, and the ALJ s reaffirmation, that potential harm was serious is also not clearly erroneous. record suggests that the resident was roughly handled the The by a nursing assistant, that the nursing assistant s actions may have been punitive and retaliatory, resulted in obvious injury. and that the rough handling It was not error for either CMS or the ALJ to find the potential for serious harm in Robinson s continued interaction with Beverly s residents. C. Beverly next claims that the CMPs imposed by CMS are unreasonable. upheld if Again, the Secretary s findings (via CMS) must be supported by considered as a whole. substantial evidence on 42 U.S.C. § 1320a-7a(e). the record Further, when a reviewing court concludes that the basis for imposing a CMP exists, it may not . . . [r]eview the exercise of discretion by CMS . . . to impose § 488.438(e)(2). the factors taken a civil money penalty. 42 C.F.R. Nor may a reviewing court reconsider any of into amount of the penalty. account by CMS with Id. at § 488.438(e)(3). 18 respect to the CMS can impose a CMP, not to exceed $10,000, for every day that a facility is found not to be in compliance. 42 U.S.C. § 1395i-3(h)(2)(B)(ii). substantial The appropriate CMP is split into two ranges depending on the severity of noncompliance. When immediate jeopardy is present, the daily CMP can range from $3,050-$10,000. 42 C.F.R. § 488.438(a)(1)(i). When there is no immediate jeopardy, but the deficiencies have either caused actual harm or have the potential for more than minimum harm, the daily CMP can range from $50 - $3,000. Having found the three deficiencies listed above, CMS imposed a CMP of $3,050 a day for April 9-14, 2005 -- the period for which it found immediate jeopardy -- and a CMP of $1,000 a day for April 15-August 4, 2005. The ALJ changed the $3,050 CMP so that it only ran from April 9 through April 11, 2005, based on his finding that immediate jeopardy ended when Robinson was suspended. Because the $3,050 CMP for April 9 through April 11 is the minimum penalty under the immediate jeopardy classification, the CMP concluded is reasonable that appropriate. the It as a matter immediate is also of course jeopardy reasonable in once we have classification duration because is it covers only the period during which Robinson remained at work at Beverly. through We also conclude that the $1,000 CMP for April 12 August 4, 2005, is reasonable 19 in both scope and duration. The burden of proving that the CMP was unreasonable fell on Beverly, Coquina Ctr. v. Ctrs. for Medicare & Medicaid Servs., DAB 1860 at 32-33 (2002), yet Beverly made no specific argument on this point. Even if it had, however, the CMP still appears to be reasonable. It falls at the lower end of the allowable range for violations that have caused harm or threaten more than minimum harm, and we agree with the ALJ that the amount served the purpose of driving the facility back into compliance. J.A. 312. Further, it was reasonable for this CMP to extend to August 4 because it was not until that day that CMS could say properly with certainty in-serviced that and Beverly s that unreported allegations of abuse. there employees were no had been additional Accordingly, the CMPs imposed by CMS were reasonable. D. Finally, Beverly argues that the DAB erred when it upheld CMS s conclusions by overlooking the fact that Surveyor Campbell completed his investigation at Beverly and testified before the ALJ despite a clear conflict of interest. there is no doubt that Surveyor Campbell ignored an While obvious conflict of interest in proceeding with the survey that resulted in the citations at issue, see 42 U.S.C. § 1395i-3(g)(1)(E)(2), this does not affect our analysis. First, inadequate survey performance by a state does not -- (1) Relieve a [facility] of 20 its obligation to meet (2) all requirements participation; or Invalidate deficiencies. 42 C.F.R. § 488.318(b). for adequately program documented Further, as the DAB decision noted, the ALJ knew of the conflict of interest and could weigh accordingly. relying on the credibility of Surveyor Campbell s testimony In fact, the ALJ explicitly stated that he was evidence other than Campbell s testimony. Had Campbell been the government s only witness, perhaps the ALJ s decision would be in doubt, but under the circumstances there was substantial evidence to support the decision. III. In sum, we conclude that CMS s determination that Beverly violated 42 C.F.R. §§ 483.13(b), (c), and (c)(2), (3) was supported by substantial evidence. We further conclude that CMS s finding of immediate jeopardy (as subsequently modified by the ALJ) was also reasonable, as were the CMPs imposed for the violations. Beverly s petition for review is therefore DENIED. 21

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