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From Health Law Daily, August 18, 2017

Board reverses summary judgment against SNF on alleged CoP violations

By Robert Margolis, J.D.

An administrative law judge (ALJ) erred in granting summary judgment for CMS against NMS Healthcare of Hagerstown, LLC (NMS), the Departmental Appeals Board (DAB) has held. The DAB found that genuine issues of material fact exist as to whether NMS was in substantial compliance with certain Medicare participation requirements for a period in 2014, and whether the noncompliance posed immediate jeopardy to a facility resident. The DAB remanded the case to the ALJ in part for further proceedings (NMS Healthcare of Hagerstown, LLC v CMS, Docket No. A-17-25, Decision No. A-15-74, July 20, 2017).

Violations. CMS had found that NMS, a skilled nursing facility in Maryland, violated provisions in 42 C.F.R. § 483.10(j)(1)-(2) with respect to a single resident, a woman in her 70s. CMS found that NMS did not meet the following requirements: (1) to provide access to the resident for members of the resident’s immediate family and others, subject to the resident’s right to deny or withdraw consent; (2) to give the resident the right to be free from involuntary seclusion; and (3) to provide or arrange services that meet professional standards of quality. NMS admitted the resident in 2011, when she showed early signs of dementia and suffered from depression. She lived in a non-restricted area of the facility until being hospitalized in January 2014. On her return from hospitalization, she was documented as "having difficulty with return to facility," and her primary care physician, who was also her attending physician at the hospital, "validat[ed] that incapacity concerns remain at this time." Thus, she was placed in NMS’s secure unit, where she resided through March 28, 2014. While there, access to her was denied to her daughter, "boyfriend," and attorney. CMS ultimately imposed a $5,650 per-day civil money penalty (CMP) based on a finding that the violations placed her in immediate jeopardy. NMS requested a hearing with an ALJ, which upheld CMS’s determination. NMS appealed to the DAB.

Involuntary seclusion. The DAB found that there were genuine issues of material fact as to whether NMS violated the participation requirement that the resident not be placed in involuntary seclusion without any staff assessment of her clinical condition. There was evidence to support that staff assessments were made, even though no contemporaneous documentation existed. The ALJ had relied on the absence of documentation in upholding CMS’s decision and CMP, but neither the federal regulation nor any DAB decisions on which the ALJ relied require contemporaneous documentation to support such a decision and the imposition of CMPs. NMS had presented written direct testimony from staff about the process and assessments that were undertaken prior to placing the resident in the secure portion of its facility. This was sufficient to create an issue of material fact and the ALJ erred in equating the absence of such documentation with the absence of evidence in NMS’s favor.

Restricting visitors. The Board also found genuine issues of material fact as to whether NMS violated the participation requirement to provide the resident access to visitors. Though the regulation at issue on its face only permits restrictions on visitor access when consistent with the resident’s "wishes," CMS and NMS agreed that other grounds may support restricting access, which the DAB assumed existed for purposes of its ruling. NMS provided written testimony that access was denied one of the resident’s daughters because (1) the resident’s medical Power of Attorney (POA) had requested such restriction, (2) that daughter had previously attempted to "kidnap" the resident, and (3) that daughter’s visits "exacerbated" the resident’s "psychiatric conditions." The DAB found that evidence supporting that third reason created a genuine issue of material fact that the restriction was not a violation of participation requirements. The DAB also found that there was sufficient evidence to support NMS’s restricting the resident’s attorney’s access to the resident, where there was evidence that the resident lacked the mental capacity to understand the attorney and make rational decisions.

Professional standards of quality. The DAB also found that NMS raised genuine issues of material fact as to whether it had breached professional quality standards requiring: (1) a determination of clinical necessity before deciding to place a resident in a locked unit; (2) a decision to abridge a resident’s rights be based on the least restrictive means possible; and (3) a medical POA’s decisions be confined to the scope of the authority granted under the POA.

Immediate jeopardy. The ALJ had upheld CMS’s decision that the violations it found placed the resident in immediate jeopardy. The DAB ordered that on remand, if the ALJ concludes that any of the violations in fact occurred, it must make a new determination as to immediate jeopardy.

Documentation. The ALJ had found that NMS was not in substantial compliance with the regulatory requirement that it maintain clinical records on the resident that were accurate and maintained in accordance with accepted professional standards. NMS did not dispute that finding, but appealed the $150-per day CMP that CMS had imposed based on this violation. The DAB held that on remand, the ALJ should assess whether that amount was reasonable.

Companies: NMS Healthcare of Hagerstown, LLC

MainStory: TopStory CMSNews CMPNews CoPNews SNFNews

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