Drumright Nursing Home, DAB CR5463 (2019)

DECISION

Drumright Nursing Home (Petitioner or “the facility”) challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with the Medicare program participation requirements that it notify a physician of changes in a resident’s condition as required by 42 C.F.R. § 483.10(g)(14), and that it provide treatment and services to prevent and heal pressure sores, as required by 42 C.F.R. § 483.25(b)(1). CMS determined that these deficiencies resulted in immediate jeopardy to health and safety. Petitioner challenges the civil monetary penalty (CMP) of $150,029.00 that was imposed for these deficiencies and several other deficiencies at the non-immediate jeopardy level, and alleges that its financial condition prevents it from paying the CMP. For the reasons discussed below, I find that there is no dispute as to any material fact, and CMS is entitled to judgment as a matter of law because the facility was not in substantial compliance with Medicare program requirements, the deficiencies resulted in immediate jeopardy to resident health and safety, and the CMP imposed is reasonable.

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I. Background

The Social Security Act (Act) establishes requirements for skilled nursing facility (SNF) participation in the Medicare program and authorizes the Secretary of Health and Human Services (“the Secretary”) to promulgate regulations implementing those statutory provisions. See 42 U.S.C. § 1395i-3; 42 C.F.R. pts. 483 and 488. To participate in the Medicare program, an SNF must maintain substantial compliance with program participation requirements. In order to be in substantial compliance, an SNF’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.” 42 C.F.R. § 488.301. “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.” Id.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with participation requirements. 42 U.S.C. § 1395aa(a); 42 C.F.R. §§ 488.10, 488.20. The Act and its implementing regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected. 42 U.S.C. § 1395i-3(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308. CMS may impose a per-day CMP for the number of days an SNF is not in substantial compliance, or a per-instance CMP for each instance of the SNF’s noncompliance. 42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. § 488.430(a).1

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge (ALJ) to challenge the noncompliance finding and enforcement remedy. 42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

Surveyors from the Oklahoma State Department of Health (state agency) completed a partial extended survey and complaint investigation at Petitioner’s facility on August 2,

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2017, and cited noncompliance with Medicare program participation requirements, including two immediate jeopardy level deficiencies.2 CMS Exhibit (Ex.) 4. 

In a letter dated August 31, 2017, CMS notified Petitioner that it concurred with the state agency’s findings of substantial noncompliance with Medicare program participation requirements. CMS determined that Petitioner was not in substantial compliance with the following participation requirements:

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CMS informed Petitioner that immediate jeopardy had been abated, but that it remained out of substantial compliance. CMS advised Petitioner that it was imposing the following enforcement remedies: termination of Petitioner’s provider agreement effective February 2, 2018, if it did not return to substantial compliance prior to that date; a $9,354 per-day CMP for one day of immediate jeopardy, May 22, 2017, and a $1,655 per-day CMP beginning May 23, 2017, and continuing until further notice; and a denial of payment for new admissions (DPNA) beginning September 9, 2017. CMS Ex. 1 at 1-7. 

By letter dated December 6, 2017, CMS informed Petitioner that it had returned to substantial compliance on August 16, 2017. CMS stated that it had revised the enforcement remedies as follows: the termination of Petitioner’s provider agreement was rescinded; the DPNA was rescinded; a $9,354 per-day CMP was imposed for one day (May 22, 2017), and a per-day CMP of $1,655 was imposed for 85 days beginning May 23, 2017, and continuing through August 15, 2017, for a combined CMP total of $150,029.00. CMS Ex. 1 at 8-9.  

In a letter dated January 10, 2018, CMS informed Petitioner that it had reviewed Petitioner’s request for financial hardship consideration regarding the payment of the CMP and determined that full payment of the CMP at once would create financial hardship for Petitioner. CMS stated that it would therefore permit Petitioner to pay the CMP in 12 monthly installments with interest, in accordance with a payment schedule provided in the letter. CMS Ex. 1 at 11-13.

Petitioner timely requested a hearing on October 30, 2017. The case was docketed and assigned to ALJ Carolyn Cozad Hughes.5 CMS filed a pre-hearing brief with an incorporated motion for summary judgment, along with 12 proposed exhibits (CMS Exs. 1-12), and Petitioner filed a brief and response to CMS’s motion for summary judgment,6 and four proposed exhibits (P. Exs. 1‑4). The parties submitted the written direct testimony of several witnesses (CMS Exs. 11 and 12, and P. Ex. 1). Acknowledgment and Pre-Hearing Order, §§ 1-2, 4, 8-10. In the absence of any objections, I admit all proposed exhibits into the evidentiary record.

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II. Issues

The issues presented are:

Whether summary judgment is appropriate;

Whether Petitioner was in substantial compliance with 42 C.F.R. §§ 483.10(g)(14); 483.25(b)(1); 483.45(d)(e)(1)-(2); 483.35(a)(1)-(4); and 483.75(g)(1)(i)-(iii), (2)(i)(ii)(h)(i);

If Petitioner was not in substantial compliance, did its deficiencies pose immediate jeopardy to resident health and safety;

Is the duration of the noncompliance appropriate; and

Whether a $9,354 per-day CMP for May 22, 2017 (one day of immediate jeopardy), and a $1,655 per-day CMP from May 23, 2017 through August 15, 2017 (period of substantial noncompliance that was not immediate jeopardy) are reasonable.

III. Discussion7

1. A. Summary judgment is appropriate because material facts are not in dispute.

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 19-20 (2010), aff’d, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F. App’x 820 (5th Cir. 2010); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party must show that there are no genuine disputes of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law. Anderson, 477 U.S. at 248. If the moving party meets its initial burden, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis omitted). “To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact -- a fact that, if proven, would affect the outcome of the case under governing law.” Senior Rehab., DAB No. 2300 at 3. In determining whether there are genuine issues of material fact for hearing, an ALJ must

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view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor. Id.

It is well established that an ALJ is empowered to decide a case on a motion for summary judgment, without an evidentiary hearing. Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010) ( “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”) (emphasis added); Crestview Parke Care Ctr., 146 F.3d 425, 428-29 (6th Cir. 2004) (explaining that [t]he statute authorizing the imposition of penalties requires a hearing ‘on the record,’ and that the use of summary judgment is “valid” and “provides an alternative to in-person, oral hearings.”).

The material facts establishing Petitioner’s noncompliance with 42 C.F.R. §§ 483.10(g)(14) and 483.25(b)(1) are not disputed. Further, Petitioner does not dispute the duration of its noncompliance.8 Although Petitioner generally disputes the finding of noncompliance with sections 483.10(g)(14) and 483.25(b)(1) with respect to Resident # 3, it does not specifically challenge the finding of immediate jeopardy. See P. Br. at 17 (“Petitioner seeks a reduction of the non-immediate jeopardy, per-day CMP to $579.25/day,” without raising any arguments regarding immediate jeopardy or the one-day CMP imposed for immediate jeopardy). There is no genuine dispute as to any material fact that requires a hearing, and summary judgment in CMS’s favor is warranted.

1. B. Petitioner only challenges the findings of noncompliance with 42 C.F.R. §§ 483.10(g)(14) and 483.25(b)(1) with respect to Resident # 3, and therefore, Petitioner fails to raise any dispute regarding the multiple deficiencies that were cited at the non-immediate jeopardy level.

In its request for hearing, Petitioner challenged all five of the cited deficiencies, but only presents arguments regarding its care of Resident # 3 in its brief. Petitioner contends that CMS has failed to make a prima facie case that it failed to substantially comply with 42 C.F.R. §§ 483.10(g)(14) (Tag F157) and 483.25(b)(1) (Tag F314), and also contends that the CMP is not reasonable. P. Br. at 8. Therefore, Petitioner does not challenge the

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determination of noncompliance with 42 C.F.R. §§ 483.45(d)(e)(1)-(2) (Tag F329), 483.35(a)(1)-(4) (Tag F353), and 483.75(g)(1)(i)-(iii)(2)(i)(ii)(h)(i) (Tag 520). Additionally, Petitioner does not challenge the determination of noncompliance with 42 C.F.R. §§ 483.10(g)(14) and 483.25(b)(1) with respect to Resident # 4.9 Therefore, I uphold all five cited deficiencies, and the sole deficiencies challenged involve Petitioner’s noncompliance with 42 C.F.R. § 483.10(g)(14) and 483.25(b)(1) with respect to Resident # 3. 

Resident #3   

Petitioner “stipulate[d] to the “following facts and descriptions” with respect to Resident # 3:

Resident No. 3 was admitted to Petitioner’s facility with one Stage II pressure ulcer ^[10^] on May 5, 2017.^[11^]  A Stage II pressure ulcer is a shallow open ulcer with a red or pink wound bed, with no slough (devitalized tissue).^[12^] On May 22, 2017, the resident was hospitalized due to decreased oxygen saturation levels, increased weakness and decreased appetite. Per an Emergency Room Note, the resident had an advanced decubitus ulcer with tunneling (channels that extend from the wound into the subcutaneous tissue and muscle, due to pressure). The admitting diagnoses were: advanced Stage IV ^[13^] pressure ulcer (full thickness wound with exposed bone) with active drainage, necrotic tissue (dead tissue), and tunneling; and Sepsis.

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P. Br. at 8-9. Further, Petitioner has not submitted evidence to dispute the following material facts cited by CMS:

CMS Br. at 3-6. In fact, Petitioner has not come forward with any evidence in support of its arguments regarding the cited deficiencies, to include witness testimony and documentary evidence. 

Resident # 3, a 79-year-old female, was admitted to the facility on May 2, 2017, as a transfer from an acute care hospital. CMS Ex. 8 at 26. During her hospitalization, a wound care team progress note, dated April 27, 2017, documented that Resident # 3 had blanchable erythema at her heels with redness and a stage II sacral pressure ulcer

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measuring that was 3 cm long x 2 cm wide and .1 cm deep.14 At the time of Resident # 3’s admission to the facility, her diagnoses included right forearm cellulitis, diabetes mellitus, obesity, and chronic kidney disease. CMS Ex. 8 at 26, 34. 

Nursing notes recorded on May 2, 2017, document that Resident # 3 had generalized bruising to her extremities, including her left shoulder, right side, and elbows. CMS Ex. 8 at 25, 26, 60. Resident # 3 had a 3 cm x 1.5 cm “open area also gaulding to buttock.” CMS Ex. 8 at 26, 60. Resident # 3 was observed as having no complaints of pain or distress. CMS Ex. 8 at 60. 

Petitioner administered a Braden Scale skin assessment to predict pressure sore risk on May 2, 2017. CMS Ex. 8 at 24. Resident # 3’s score of 14 corresponded to a “moderate risk” for pressure sore development. CMS Ex. 8 at 24. A form assessing Resident # 3’s skin integrity reported multiple bruises, along with three “open areas” in the proximity of the lower back and buttocks.15 CMS Ex. 8 at 25.

Physician’s orders, dated May 2, 2017, include the following: Pro-Stat (protein supplement),16 30 ml daily; daily cleaning of right buttock with normal saline; and daily application of Venelex ointment and covering with Mepilex border. That same day, Resident # 3’s physician ordered use of an indwelling catheter due to Resident # 3’s stage II pressure sore of her right buttock. CMS Ex. 8 at 51. In providing written consent, Resident # 3 acknowledged that the use of an indwelling urinary catheter was “part of [her] medical care” for “impaired skin integrity.” CMS Ex. 8 at 50. 

A Wound Flow Sheet for a right buttock pressure sore contains a May 2, 2017 entry documenting that the wound was 2 cm long x 3 cm wide and was pink in color. CMS Ex. 8 at 29. Petitioner did not observe any odor, drainage, or tunneling. CMS Ex. 8 at 29.   

On May 3, 2017, Resident # 3 was seen by her physician, who documented a stage II pressure ulcer on her “[right] buttock 2 x 3 cm open area.” CMS Ex. 8 at 33.

A nursing note dated May 7, 2017, documented a nursing observation of an “8 cm long x 0.25 cm wide open area” in the proximity of the coccyx. CMS Ex. 8 at 66. After the nurse notified the physician that same day (CMS Ex. 8 at 66), the physician ordered that

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Petitioner’s staff “clean open area to coccyx, apply Venelex and cover [with] Mepilex daily.” CMS Ex. 8 at 36, 90. Nursing staff reminded Resident # 3 to reposition every two hours and encouraged her to get up, although she informed them she was “very tired.” CMS Ex. 8 at 66.  

A May 7, 2017 entry on a Wound Flow Sheet for a pressure sore of the coccyx documents a stage II pressure sore that measured 8 cm x 0.25 cm, was red, and had some bleeding. CMS Ex. 8 at 30. Petitioner reported that the wound had its onset that same day. CMS Ex. 8 at 30. Resident # 3 reported “some” intermittent pain. CMS Ex. 8 at 30.

A nursing note dated May 8, 2017, reported, among other things, that Resident # 3’s “buttocks are red [with] open areas.” CMS Ex. 8 at 67. A Wound Flow Sheet for a left buttock pressure sore contains a May 8, 2017 entry documenting a stage II pressure sore that was 3 cm x 3 cm in size, with a date of onset that same day. CMS Ex. 8 at 28. On May 8, 2017, Resident # 8’s physician prescribed Vitamin C and zinc by mouth daily for wound healing. CMS Ex. 8 at 36. The physician also ordered that Petitioner “clean open area to [left] buttock, apply Venelex and cover daily,” although a treatment administration record indicates that Petitioner did not comply with this order for another five days, until May 13, 2017. CMS Ex. 8 at 86. 

The Wound Flow Sheet for the right buttock pressure sore includes a May 9, 2017 entry that documents the wound was “raw” and “pink” without any odor or drainage. CMS Ex. 8 at 29.  

Resident # 3 was seen by her physician on May 10, 2017, at which time the physician documented that the buttocks wounds were open and 3 cm x 4 cm in size.17  CMS Ex. 8 at 34. Resident # 3’s physician determined that she “needs [an] an air mattress” for her pressure ulcers on her buttocks (CMS Ex. 8 at 34), and ordered an “air mattress to bed”18 and “gel cushion to [wheelchair]” that same day. CMS Ex. 8 at 37, 69. A May 10, 2017 nursing note documents that Resident # 3 continued to have “redness/open areas” of the, inter alia, buttocks. CMS Ex. 8 at 69.

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According to a May 12, 2017 nursing note, Resident # 3’s buttocks had redness and excoriation to the anal area. CMS Ex. 8 at 71. Resident # 3 complained of buttocks pain and was given Tramadol.19 CMS Ex. 8 at 71.           

According to nursing notes dated May 14, 2017, Resident # 3’s buttocks were excoriated and reddened. Staff provided treatment per orders, and Resident # 3 tolerated it with minimal discomfort. Staff noted that the resident was being repositioned every two hours. CMS Ex. 8 at 73.      

On May 15, 2017, staff documented in Resident # 3’s care plan that she had a problem related to impaired skin integrity. The goal was for Resident # 3 to “have healing of skin over the next 90 days.” The care plan listed the following approaches: perform dressing changes as ordered; gel cushion to wheelchair; turn and reposition every two hours; avoid supine position; use care when applying lotions to bruises; and low air loss mattress to bed. CMS Ex. 8 at 84.        

In a social services progress note, dated May 15, 2017, a social worker stated that she checked on Resident # 3 and that Resident # 3 had complained that “her backside was bothering her.” CMS Ex. 8 at 39.   

A nursing note dated May 15, 2017, documented, among other things, that Resident # 3 was “able to move sideways – [complains of] pain when moved differently . . . [Treatment] to buttocks areas red, raw . . . has gel cushion in [wheelchair] . . . call to [physician]– orders to [discontinue] [foley catheter] [after] 24 [hour] bladder training.” CMS Ex. 8 at 37, 74.20

A wound assessment entry dated May 15, 2017, documented that Resident # 3’s right buttock pressure sore, which remained stage II, now measured 3 cm x 3 cm. The pressure sore was raw and red. CMS Ex. 8 at 29.     

With respect to Resident # 3’s left buttock pressure sore, a wound assessment entry dated May 15, 2017, documented that the Stage II pressure sore was 5 cm long x 3 cm wide, and was red and raw, and had slight drainage. CMS Ex. 8 at 28.

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On May 15, 2017, Resident # 3’s physician discontinued use of the Foley catheter.21 CMS Ex. 8 at 37, 51, 76. 

A wound assessment entry dated May 17, 2017, documented that Resident # 3’s right buttock pressure sore remained at stage II, and Petitioner described the sore as triangular in shape, red, raw, with slight drainage, and without tunneling. CMS Ex. 8 at 29. In another wound assessment entry that same day, staff documented that Resident # 3’s left buttock pressure sore was stage II and 3.5 cm x 3 cm in size. Staff described the sore as pink and red, with slight drainage. CMS Ex. 8 at 28. A wound assessment entry, also dated May 17, 2017, documented that the pressure sore on Resident #3’s coccyx was stage II, and measured 4 cm in length, 1 cm in width, and .5 cm deep.22 CMS Ex. 8 at 30. The pressure sore had a dark center to the side along with slight drainage. CMS Ex. 8 at 30.        

A nursing note dated May 18, 2017, documented, among other things, that “[Resident # 3] has open wounds to buttocks turned from side to side.” CMS Ex. 8 at 78. A subsequent nursing note on May 18, 2017, reported that Resident # 3 was confused at times, and the dressings on her buttocks were “clean & intact.” CMS Ex. 8 at 78. 

According to a nursing note recorded early in the morning of May 19, 2017, Resident # 3 had open wounds to her buttocks and coccyx; she had been turned side to side; and, following the removal of her Foley catheter on May 16, she had started to become incontinent. CMS Ex. 8 at 79. A subsequent nursing note that day reported that Resident # 3 received treatment to her buttocks and coccyx. CMS Ex. 8 at 79. Later that evening, another nursing note documented, “Buttocks/coccyx area red – irritated – open areas – [continue] to turn her side to side only.” CMS Ex. 8 at 79. That same day, Resident # 3’s physician gave a telephone order for Resident # 3 to receive Cipro, an antibiotic, twice daily for seven days for a urinary tract infection. CMS Ex. 8 at 42, 57, 79; see CMS Ex. 8 at 41-44 (laboratory testing results).

A May 20, 2017 nursing note documented, among other things, that Resident # 3’s buttocks, coccyx, and “peri-area” were red and irritated and that those areas were cleansed and treated with Venelex ointment. CMS Ex. 8 at 80. Later that same day, a nursing note documented that Resident # 3 was “sitting [up] in [her wheelchair] eating

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breakfast . . . [complains of] buttocks pain.” CMS Ex. 8 at 80. The nurse explained that Resident # 3 “[w]ants to lay back down [after] breakfast.” CMS Ex. 8 at 80. A note reports that Resident # 3 was sitting up in bed, with a pillow under her left side that evening, had been repositioned every two hours that day, and had received Tramadol and Tylenol for buttocks pain, which gave her relief. CMS Ex. 8 at 80-81.  

An early morning nursing note on May 21, 2017, reported, inter alia, that Resident # 3 continued to have redness and irritation to her perineal area and that her buttocks had several open areas. CMS Ex. 8 at 82. The note also stated, “[c]occyx decubitus draining serosanguinous fluid on [dressing] from [treatment] provided. Resident is incontinent (dribbles) of urine, pericare given . . . turned from side to side. Doesn’t move self or assist [with] repositioning, [complains of] pain to buttocks. Given [as needed] Tramadol.” CMS Ex. 8 at 82. In a subsequent note that same morning, a nurse documented that Resident # 3 complained of pain that was somewhat relieved by pain medication. CMS Ex. 8 at 82. An evening nursing note reported that Resident # 3 complained of buttock pain and was given pain medication. CMS Ex. 8 at 81.     

A nursing note recorded on May 22, 2017, at 2:30 am, documents that Resident # 3 had her soiled coccyx dressing changed. CMS Ex. 8 at 83. Resident # 3’s buttocks were red and the nurse applied Lantiseptic, and Resident # 3 was given pain medication due to buttocks and lower back pain. CMS Ex. 8 at 83. Several hours later, the same nurse documented that Resident # 3 was “very sad this [morning].” CMS Ex. 8 at 83. At 10:00 am, Resident # 3 wanted to stay in bed, exhibited increased weakness, was not eating, and was unable to stand. CMS Ex. 8 at 83. Petitioner notified Resident # 3’s physician, who examined Resident # 3 that same day. CMS Ex. 8 at 83. The physician ordered Resident # 3’s transfer to Hillcrest Medical Center.23 CMS Ex. 8 at 83; see CMS Ex. 8 at 49 (facility discharge summary reporting that Resident # 3 was in “poor” condition with decreased oxygen saturation levels, increased weakness, and decreased appetite); see also CMS Ex. 8 at 59 (completed Nursing Home to Hospital Transfer Form).

Emergency Department records indicate that Resident # 3’s perineal area was “very red and swollen” and that she had an “[approximately] two inch open pressure wound on her sacrum that appears to have tunneling.” CMS Ex. 8 at 92. Resident # 3 was admitted to the acute care hospital, at which time diagnoses included “Sepsis, present on admission, likely secondary to decubitus ulcer,” and “Advanced stage III-IV decubitus ulcer with tunneled wound and active drainage.” CMS Ex. 8 at 97.    

A pressure ulcer consultation report dated May 23, 2017, reported that Resident # 3 was “lying in the bed, will not answer questions , . . . will moan at times, will not open eyes,

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will not follow commands.” CMS Ex. 8 at 101. Among other things, the report documented:  “an ulcer noted to the right lower extremity, sacral ulcer present with necrotic tissue and bone exposed underlying and tunneling present, multiple areas of ulceration from friction and shear with full-thickness skin loss. No odor present.” CMS Ex. 8 at 101. The consulting physician listed diagnoses that included “Stage IV pressure ulcer to sacrum” and “Sepsis.” CMS Ex. 8 at 102. 

Resident # 3 underwent surgery on May 24, 2017, that involved debridement of skin, subcutaneous tissue, and sacral bone of a 10 cm wide x 10 cm long x 7 cm deep area. CMS Ex. 8 at 103. The postoperative diagnosis was “Sacral decubitus wound, full-thickness and subcutaneous tissue.” CMS Ex. 8 at 103. Biopsies of the sacral bone and tissue revealed “acute osteomyelitis” and “skin and soft tissue necrosis with associated cellulitis and abscess.” CMS Ex. 8 at 105. 

On June 5, 2017, Resident # 3 was discharged to another facility for “further care and management of her wound.” CMS Ex. 8 at 114. Resident # 3’s discharge diagnoses included “[a]dvanced stage III-IV decubitus ulcer that was tunneled with active drainage.” CMS Ex. 8 at 110. Resident # 3 was readmitted to the acute care hospital the following day, at which time her diagnoses included sacral decubitus with osteomyelitis. CMS Ex. 8 at 120-22. Resident # 3 remained in the acute care hospital until her death on June 26, 2017. CMS Ex. 8 at 125. A death summary report lists sacral decubitus ulcers with osteomyelitis and severe sepsis from osteomyelitis among the discharge diagnoses. CMS Ex. 8 at 123.24 Resident # 3’s death certificate lists sacral decubitus ulcers as an underlying cause of death. CMS Ex. 8 at 125. 

Petitioner’s pressure ulcer prevention and treatment policy and procedures

During the relevant time period, Petitioner had a policy (Policy # 36, effective August 28, 2008) that addressed the prevention and treatment of pressure ulcers. CMS Ex. 10 at 61-65. The policy listed the following goal, which mirrors the language of 42 C.F.R. § 483.25(b)(1):

To provide care and services necessary in an effort to prevent the development of pressure ulcers for any resident who

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enters the facility without a pressure ulcer. For individuals who enter the facility with a pressure ulcer, or whose clinical condition demonstrates the development of a pressure ulcer was unavoidable post admission, the facility will strive to provide care and services necessary to promote healing, prevent infection and prevent the development of new ulcers from developing.

CMS Ex. 10 at 61. Petitioner’s policy explicitly directed staff to “notify the physician upon the onset of the ulcer and obtain treatment orders.” Further, staff are required to notify the physician “if the ulcer appears to be deteriorating or if no improvement is noted in 2-4 weeks of the initial treatment orders.” CMS Ex. 10 at 64. The policy notes that “[p]ain is often associated with the presence of a pressure area.” CMS Ex. 10 at 64. 

Petitioner’s policy and procedures for notification of changes

Consistent with the requirements of 42 C.F.R. § 483.10(g)(14), Petitioner had a policy (Policy # 5, effective July 1992) that directed the notification of a resident’s physician, legal representative, or interested family member within 24 hours of any of the following circumstances: 

(a) An accident involving the resident which results in injury;

(b) A significant change in the resident’s physical, mental, or psychosocial status;

(c) A need to alter treatment significantly; or

(d) A decision to transfer or discharge the resident from the facility as specified in the policy for transfer and discharge.    

CMS Ex. 10 at 66. 

1. C. Undisputed evidence supports that Petitioner’s staff did not immediately consult Resident # 3’s physician when she had significant changes in her condition.

1. D. Undisputed evidence supports that Petitioner’s staff failed to provide the necessary care and services to Resident # 3 to promote healing, prevent infection, and prevent new pressure sores from developing.

Discussion

Pursuant to 42 C.F.R. § 483.10(g)(14), a facility must consult with a resident’s physician when there is a significant change in the resident’s condition (such as a “deterioration in health . . . in either life-threatening conditions or clinical complications”), a need to alter treatment significantly, or there is a decision to transfer or discharge a resident from the

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facility. The Departmental Appeals Board (DAB) has repeatedly explained that requiring staff to consult the physician “is not a mere formality”; the requirement guarantees that the resident will timely receive his treating physician’s input as to the care he requires under the circumstances. Senior Rehab., DAB No. 2300 at 7, quoting Britthaven of Goldsboro, DAB No. 1960 at 11 (2005); see also Maysville Nursing & Rehab., DAB No. 2874 at 9 (2018). Further, such consultation requires a “dialogue with and a responsive directive from the resident’s physician as to what actions are needed . . . .” Magnolia Estates Skilled Care, DAB No. 2228 at 9 (2009).   

Additionally, 42 C.F.R. § 483.25(b)(1), which is a subsection under the “quality of care” regulation found at 42 C.F.R. § 483.25, addresses the prevention and treatment of pressure sores. The DAB has explained that “[t]o be in substantial compliance, a SNF must ensure, among other requirements, that a resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable, and that a resident with pressure sores receives the necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.” The Harborage, DAB No. 2905 at 1-2 (2018).25 In assessing the facility’s compliance with this requirement, the relevant question is: did the facility “take all necessary precautions” to promote healing, prevent infection, and prevent new sores from developing. If it did so, and the resident develops pressure sores anyway, there is no deficiency. But if the evidence establishes that the facility fell short of taking all necessary precautions, it has violated the regulation. Senior Rehab., DAB No. 2300 at 13-14, aff’d, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F. App’x 820 (5th Cir. 2010); Koester Pavilion, DAB No. 1750 at 32 (2000).

CMS alleges that the undisputed material facts show that Petitioner failed to immediately notify Resident # 3’s physician when she experienced significant changes in her condition, namely, when her pressure sores and her overall condition deteriorated. CMS Br. at 8-11, 18. CMS contends further that the undisputed material facts establish that Petitioner failed to prevent Resident # 3 from developing new pressure sores, and failed to provide Resident # 3 with necessary care to promote healing and prevent infection. CMS Br. at 12-13, 18.   

The undisputed evidence establishes that Petitioner did not immediately consult Resident # 3’s physician when she had significant changes in her condition, as required by 42 C.F.R. § 483.10(g)(14). As I discuss below, Petitioner’s defense consists of either assertions that raise no genuine dispute as to the material facts or legal arguments which do not amount to factual disputes.

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The facts show that when Resident # 3 was admitted to Petitioner’s facility on May 2, 2017, she had a single stage II pressure sore on her right buttock that was pink in color and 2 cm by 3 cm in size. CMS Ex. 8 at 29. Petitioner determined that Resident # 3 was at “moderate risk” for pressure sore development. CMS Ex. 8 at 24.    

Five days later, on May 7, 2017, Petitioner identified another stage II pressure sore on Resident # 3’s coccyx that measured 8 cm x 0.25 cm and determined its onset was that same day. CMS Ex. 8 at 30. The following day, on May 8, 2017, Petitioner’s staff identified a third stage II pressure sore that was on Resident # 3’s left buttock and documented that the wound measured 3 cm x 3 cm and had its onset that same day.  CMS Ex. 8 at 28. Although Resident # 3’s physician issued orders on May 8, 2017, for treatment of her left buttock ulcer, Petitioner did not implement these orders until May 13, 2017.26 See CMS Ex. 8 at 86.    

Each of Resident # 3’s three pressure sores worsened and developed into painful open wounds. CMS Ex. 8 at 71, 78, 79, 82. On May 15, 2017, the left buttock pressure sore had increased in size and was red, raw, and had slight drainage, and two days later, it was pink and red with slight drainage. CMS Ex. 8 at 28. Likewise, by May 15, 2017, the right buttock pressure sore had increased in size and was raw and red, and two days later it continued to be raw and red and had slight drainage. CMS Ex. 8 at 29. And by May 17, 2017, the coccyx pressure sore had widened and gotten deeper, and was red with a dark center to the side and had slight drainage. CMS Ex. 8 at 30. The record does not indicate that the physician was notified that these wounds were worsening, to include increasing in size and exhibiting drainage, until May 22, 2017. CMS Ex. 8 at 83.

A May 18, 2017 nursing note indicates Resident # 3 was confused at times. CMS Ex. 8 at 78. On May 19, 2017, Resident # 3’s coccyx and buttocks wounds were open and she was given Tramadol for “butt pain.” CMS Ex. 8 at 22, 79. By May 21, 2017, Resident # 3’s buttocks had several open areas, and the pressure sore on her coccyx was draining serosanguinous fluid. CMS Ex. 8 at 82. Further, Resident # 3 was unable to move herself or assist with repositioning, and she complained of buttock pain throughout the day. CMS Ex. 8 at 82. By May 22, 2017, she exhibited increased weakness, was not eating, and was unable to stand; that day, staff finally notified her physician of her deterioration and she was transferred to an acute care hospital. CMS Ex. 8 at 45.

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The hospital assessed that Resident # 3’s coccyx pressure sore had necrotic tissue, with exposed bone and tunneling present, and her admitting diagnoses included a stage IV pressure ulcer to her sacrum and sepsis. CMS Ex. 8 at 101-02.            

Petitioner has not denied any of the aforementioned facts, much less offered or cited to any evidence refuting these facts. The undisputed evidence thus establishes that Resident # 3’s pressure sores evolved into painful open wounds, increased in size, and had drainage. Further, not only did Resident # 3’s pressure sores worsen, but so did her overall condition; by May 22, 2017, Resident # 3 had increased pain, weakness, was not eating, and could no longer stand. CMS Ex. 8 at 83. Resident # 3 had significant changes in her condition, and Petitioner, based on its own policies, should have timely consulted with her physician when her pressure sores and overall condition worsened.27 CMS Ex. 10 at 64, 66.

Petitioner does not dispute CMS’s allegation that it failed to consult with Resident # 3’s physician. Nor does Petitioner dispute the surveyor’s report that the physician informed her that she had not been notified that Resident # 3’s pressure sores had worsened until the day before or the day of the resident’s transfer to the hospital.28 See CMS Ex. 8 at 11; CMS Ex. 11 at 5-6. Petitioner does not dispute the surveyor’s testimony that Resident # 3’s physician stated that she had seen Resident # 3 on May 3, 10, 17, and 22, 2017.29

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CMS Ex. 11 at 5-6; see CMS Ex. 8 at 33-34, 69. After her May 10, 2017 consultation with Resident # 3, the physician ordered that Resident # 3 receive an air mattress for her bed and a gel cushion for her wheelchair. CMS Ex. 8 at 34. A week later, on May 17, 2017, the physician noticed that the air mattress was not on the resident’s bed. CMS Ex. 11 at 8 (surveyor testimony that the air mattress had been delivered to the facility on May 12, 2017, and that the physician noticed on May 17, 2017, that it had not been put on Resident # 3’s bed). 

Petitioner does not dispute the surveyor’s report that the physician observed the pressure sores on May 22, 2017, and ordered Resident # 3’s transfer to the hospital. The surveyor reported that the physician informed her that she was “pretty mad” about the condition of the pressure sores, stating that the pressure sores “were bad . . . [t]hey were horrible.” CMS Exs. 8 at 11; 11 at 5-6. The physician told the surveyor that the pressure sores looked worse than when she had seen them previously, and she had not been notified the pressure sores had worsened. CMS Ex. 11 at 5-6. 

The undisputed facts pertaining to Petitioner’s failure to immediately consult Resident # 3’s physician about her significant changes also establish that Petitioner failed to provide necessary treatment to Resident # 3 to promote healing of her pressure sores, and to prevent infection and new sores from developing, as required by 42 C.F.R. § 483.25(b)(1). Not only did Petitioner fail to protect Resident # 3 from developing new pressure sores, but it also failed to adequately assess and treat the pressure sore she had upon admission, along with the two other pressure sores that she developed in the days following her admission.

Resident # 3, who had a single stage II pressure sore of her right buttock upon admission on May 2, 2017, was assessed as being at “moderate risk” for pressure sore development. CMS Ex. 8 at 24, 29. Subsequently, on May 7 and 8, 2017, Petitioner’s staff documented that Resident # 3 had developed additional stage II pressure sores on her left buttock and coccyx. CMS Ex. 8 at 28, 30.

All three of Resident # 3’s pressure sores worsened, in that they became painful open wounds, increased in size, and had drainage. These undisputed facts demonstrate that the treatments and interventions in place were not effective and required reevaluation. However, Petitioner did not immediately consult with Resident # 3’s physician when worsening occurred, and as a result, the physician did not have an opportunity to order new interventions. Because the physician was never notified, she was not in a position to monitor Resident # 3 and make any assessments or give new treatment orders if necessary. Petitioner’s failure to obtain immediate physician involvement deprived

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Resident # 3 from receiving timely and necessary treatment to promote healing of her wounds, and to prevent infection and new sores from developing.      

While the foregoing is the most glaring evidence of Petitioner’s failure to adequately treat Resident # 3’s pressure sores, the facts also show that Petitioner did not adhere to physician orders to care for Resident # 3’s pressure sores. Petitioner inexplicably had a five-day delay in treating Resident # 3’s left buttock pressure sore after it was identified and the physician issued orders for its treatment. CMS Ex. 8 at 28, 86. Although Petitioner’s staff identified the sore on May 8, 2017, at which time it measured 3 cm x 3 cm, it was not until May 13, 2017, that staff actually began wound treatment to the left buttock. CMS Ex. 8 at 86. By May 15, 2017, the pressure sore had increased in size and was red and raw, with slight drainage, and on May 17, 2017, the pressure sore measured 3.5 cm x 3 cm; it was pink and red, with slight drainage. CMS Ex. 8 at 28. Petitioner does not dispute CMS’s claim that the evidence indicates that Petitioner did not treat the left buttocks pressure sore. See CMS Br. at 4.

Petitioner also did not implement other physician orders for Resident # 3. Resident # 3’s physician had ordered Pro-Stat, a protein supplement, on May 2, 2017, but Resident # 3 “did not receive the protein supplement from 05/02/17 through 05/11/17.” CMS Ex. 11 at 7-8; see CMS Ex. 8 at 47-48 (showing that Petitioner ordered Pro-Stat on May 8, 2017, and that it was shipped to Petitioner on May 10, 2017). Likewise, even though the physician had ordered an air mattress for Resident # 3 on May 10, 2017, the physician observed that, a week later on May 17, 2017, the resident still did not have the air mattress because it had reportedly been put in a closet. CMS Exs. 8 at 34; 11 at 8.

Petitioner, without submitting any evidence to refute the undisputed facts presented by CMS, argues that “Resident No. 3’s decision to have her catheter removed and to be non-compliant with positioning makes her development of wounds per se unavoidable.” P. Br. at 15. A facility may argue that pressure sores were unavoidable only in the situation when it has undertaken all requisite preventive measures to prevent their development. See Clermont Nursing & Convalescent Ctr., DAB No. 1923 at 8, 10-11 (2004). And, for purposes of summary judgment, even were I to accept that the development of  Resident # 3’s pressure sores was unavoidable, this fact does not excuse Petitioner from its regulatory obligation to provide all necessary treatment to promote healing, prevent infection, and prevent new pressure sores from developing.

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Nonetheless, for purposes of summary judgment, I will accept Petitioner’s argument that Resident # 3’s desire to have her catheter removed30 and her resistance to repositioning31 contributed to the worsening of her pressure sores. However, I do not find these facts material to the questions of whether Petitioner substantially complied with the requirements that it notify the physician of significant changes in Resident # 3’s condition and provide the treatment and services necessary to prevent and heal pressure sores.32 Regardless of whether Resident # 3 wanted her catheter to be removed or was noncompliant with repositioning, Petitioner failed to timely implement multiple orders and did not notify the physician of her worsening condition; by the time Petitioner notified the physician of the worsening of her condition, Resident # 3 had a stage IV pressure ulcer with tunneling, active drainage, and exposed bone, and had developed sepsis that was associated with the decubitus ulcer and ultimately her death. CMS Ex. 8 at 97, 103, 125.

In addition to blaming Resident # 3, Petitioner also blames her physician for the deterioration of her condition. Petitioner argues that although the physician had a consultation with Resident # 3 on May 10, 2017, she later could not recall whether she

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looked at the resident’s three pressure sores at that particular visit.33 P. Br. at 13, citing CMS Ex. 12 at 2. According to Petitioner, because the physician could not definitively state that she observed the wounds on May 10, 2017, she somehow was not “actively involved” in Resident # 3’s care as Petitioner claims is required by the State Operations Manual. P. Br. at 13, citing CMS Pub. 100-7, State Operations Manual, Appendix PP (SOM), 42 C.F.R. § 483.30(b) (Tag F386, currently redesignated as Tag F711) (requiring that SNFs ensure that physicians have an active role in supervising the care of residents). However, Petitioner misconstrues section 483.30(b); that regulation does not require a physician to perform a head-to-toe examination at the time of every single consultation. Rather, section 483.30(b) requires an SNF such as Petitioner to ensure that a physician does the following: reviews the total program of care at each visit required by 42 C.F.R. § 483.30(c) (requiring a physician visit every 30 days for the first 90 days following admission, and at least once every 60 days thereafter); write, sign, and date progress notes at each visit; and sign and date all orders. Further, to the extent that Petitioner felt that the physician was not actively involved in Resident # 3’s care, it was obligated to ensure compliance with that requirement pursuant to section 483.30(b).34 In order to ensure that a physician maintains an active role in resident care, as contemplated by section 483.30(b), a facility must logically keep a physician apprised of a resident’s condition. 

When Resident # 3’s pressure sores began to worsen and her general condition declined, Petitioner was obligated to consult the physician about those changes. 42 C.F.R. § 483.10(g)(14); see also CMS Ex. 10 at 64, 66. The undisputed material facts establish that Petitioner failed to promptly notify Resident # 3’s physician of significant changes in her condition, and, as a result, failed to provide necessary care and services to treat Resident # 3’s pressure sores. Further, if Petitioner had notified the physician of her deteriorating condition, one can surmise that the physician would have been more “actively involved” as Petitioner claims she should have been. See P. Br. at 13.

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The evidence indicates that Resident # 3’s physician had treatment consultations with Resident # 3 on May 3, 10, and 22, 2017, and that the physician issued orders on May 8, 15, 18, and 22. See e.g., CMS Ex. 8 at 33-34. Further, the physician observed, on May 17, 2017, that Petitioner had not complied with her May 10, 2017 order that Resident # 3 be given an air mattress. CMS Exs. 8 at 34; 11 at 8; 12 at 3. The record indicates that Petitioner did not inform the physician of the worsening of the resident’s pressure sores at any point between May 10, 2017 (when the physician had a consultation) and May 22, 2017 (when Petitioner notified the physician of Resident # 3’s weakness).35 If Petitioner feels that the physician should have had a more active role in Resident # 3’s care, then it should have timely notified the physician of the deterioration of Resident # 3’s condition following the May 10, 2017 consultation. CMS Ex. 8 at 28-30, 69-82.

Petitioner also argues that 42 C.F.R. § 483.10(g)(14) does not specifically list the significant changes that would warrant immediate physician notification. Petitioner draws a distinction between “disease processes” and events such as falls and resident-to-resident abuse, which are “obvious[ly] significant.” P. Br. at 15. According to Petitioner, where a “disease process” is concerned, the requirement of immediate physician notification is “unenforceable” unless the attending physician has “outline[d] triggers or red flags” to staff. P. Br. at 15. 

Petitioner’s arguments are without merit. It is obvious that a significant change in a resident’s condition can involve clinical complications, and such complications should be identified by Petitioner’s nursing staff. In fact, Petitioner’s own policy regarding pressure sores explicitly required physician notification upon the development of new sores, when a resident’s sore appeared to be deteriorating, or when no improvement was noted in 2-4 weeks of the initial treatment orders. CMS Ex. 10 at 64; see, e.g., The Laurels at Forest Glenn, DAB No. 2182 at 18 (2008) (“The Board has previously held that CMS may reasonably rely on a facility’s policy relating to the care and treatment of its residents as evidencing the facility’s understanding of what must be done to attain or maintain residents’ highest practicable physical, mental, and psychosocial well-being, as required by section 483.25,” citing Spring Meadows Health Care Ctr., DAB No. 1955 at 16-20 (2005)). Given the explicit instructions in Petitioner’s own policy, Petitioner can hardly argue that its staff needed specific guidance from Resident # 3’s physician on what constituted a significant change in her condition. The undisputed facts establish that

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Resident # 3 acquired two new pressures sores after she was admitted, and that her pressure sores had deteriorated over the course of approximately two weeks. Further, Resident # 3 had complaints of pain, and her overall condition deteriorated. These clinical complications all constituted significant changes in Resident # 3’s condition, which mandated physician consultation. However, Petitioner’s staff failed to act immediately to consult with Resident # 3’s physician about any of these significant changes.  

Finally, Petitioner argues that it is “only speculation that Petitioner’s actions alone are responsible for the hospitalization” of Resident # 3, and it denies that its actions “are the sole cause of the Resident’s passing.”36 P. Br. at 11-12. However, Petitioner has not submitted any evidence to rebut the evidence that it did not timely implement physician orders and did not timely notify the physician of the worsening of Resident # 3’s pressure sores and overall condition. Following Resident # 3’s transfer to an acute care hospital on May 22, 2017, she was diagnosed with a stage IV pressure ulcer to her sacrum, at which time the hospital documented that Resident # 3 had “[e]xtensive sacral decubitus, full thickness, down to sacral bone at the depth.” CMS Ex. 8 at 102-03. The admitting diagnoses was “Sepsis, present on admission, likely secondary to decubitus ulcer,” whereas upon discharge, the diagnosis was “Sepsis criteria met, on admission, likely secondary to an infections process urinary tract infection versus tunneled decubitus ulcer, improved.” CMS Ex. 8 at 110. Resident # 3 was ultimately discharged and readmitted to the hospital a day later and remained hospitalized until her death. CMS Ex. 8 at 114, 120, 123. The hospital “death summary” reported diagnoses that included “[s]acral decubitus ulcers with osteomyelitis” and “[s]evere sepsis from osteomyelitis,” and the death certificate listed sacral decubitus ulcers with osteomyelitis as an underlying cause of death. CMS Ex. 8 at 125. Petitioner has not submitted any evidence to rebut the evidence that Resident # 3’s decubitus ulcers, at a minimum, contributed to her death only weeks after her discharge from the facility on May 22, 2017.  

The undisputed material facts establish that not only did Petitioner repeatedly fail to immediately consult Resident # 3’s physician about her significant changes in condition, but it also failed to provide the necessary care and services to Resident # 3 to promote healing, prevent infection, and prevent new pressure sores from developing. Petitioner therefore failed to substantially comply with 42 C.F.R. §§ 483.10(g)(14) and 483.25(b)(1).

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1. E. Petitioner has not raised a genuine dispute as to the whether the deficiencies constituted immediate jeopardy, and CMS’s determination of immediate jeopardy is not clearly erroneous.  

CMS asserts that Petitioner’s deficiencies constituted immediate jeopardy (at the “K” level of scope and severity) to resident health and safety for one day, May 22, 2017. Petitioner does not specifically challenge the finding of immediate jeopardy, but rather, focuses its arguments on its purported compliance with the aforementioned regulatory requirements. 

Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. 42 C.F.R. § 488.301. I must uphold CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) unless it is “clearly erroneous.” 42 C.F.R. § 498.60(c). The DAB directs that the “clearly erroneous” standard imposes on a facility a heavy burden to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.” See, e.g., Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (citing Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)).

Here, CMS’s finding of immediate jeopardy is not “clearly erroneous.” Petitioner failed to immediately notify and consult with Residents # 3’s physician when she experienced significant changes in her condition, and it also failed to ensure that she received the necessary treatment and services to promote healing of her pressure sores and to prevent infection and new sores from developing. Resident # 3’s pressure sores resulted in significant actual harm, in that her sacral decubitus ulcer worsened to a full-thickness and subcutaneous wound with exposed bone that required surgery and prolonged hospitalization. CMS Ex. 8 at 103, 110-114. Further, upon admission to the hospital, Resident # 3 was septic, and her sepsis was attributed to her decubitus ulcer (and, upon discharge, determined to be possibly related to the urinary tract infection she developed while at the facility). CMS Ex. 8 at 110. Resident # 3 expired the following month, and her decubitus ulcer with osteomyelitis was listed as an underlying cause of death with sepsis resulting from the ulcer as a contributor to death. CMS Ex. 8 at 125. The undisputed facts demonstrate that Resident # 3 suffered serious harm as a result of her worsening condition. Petitioner’s failure to implement physician orders, and its failure to notify the physician of Resident # 3’s worsening condition, amounts to noncompliance that posed immediate jeopardy to resident health and safety.37

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1. F. Petitioner has not created a genuine dispute as to the date it returned to substantial compliance.

Petitioner does not dispute the length of noncompliance, and it focuses its arguments on the incorrect premise that there were no immediate jeopardy deficiencies. Substantial compliance means not only that the facility corrected the specific cited instances of substantial noncompliance but also that it implemented a plan of correction designed to assure that no additional incidents would occur in the future. Once a facility is found to be out of substantial compliance, it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again. Premier Living & Rehab. Ctr., DAB No. 2146 at 23 (2008); Lake City Extended Care, DAB No. 1658 at 12-15 (1998). The burden is on the facility to prove that it is compliant with program requirements, and not on CMS to prove that deficiencies continued to exist after they were discovered. Asbury Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002). Noncompliance found during a survey is “presumed to continue until the facility demonstrates it has achieved substantial compliance.” Taos Living Ctr., DAB No 2293 at 20 (2009). 

CMS determined that immediate jeopardy deficiencies existed on May 22, 2017, and were abated the same day. CMS Ex. 4 at 3, 5. As discussed above, I have upheld CMS’s immediate jeopardy determinations. Further, Petitioner has not contended that it returned to compliance prior to August 16, 2017. I therefore sustain CMS’s determination regarding the duration of immediate jeopardy and have no reason to disturb any determination regarding the duration of noncompliance thereafter. 

1.  G. Petitioner has not demonstrated that the CMP is unreasonable. 

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, to include a CMP. In determining whether the CMP imposed against Petitioner is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f): 1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety. The absence of culpability is not a mitigating factor. The factors listed in 42 C.F.R. § 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies. Unless a facility contends that a particular regulatory factor does not support the CMP

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

The DAB has explained that “[i]t is settled law that ALJ review of the reasonableness of CMP amounts imposed by CMS is de novo.” Fireside Lodge Retirement Ctr., Inc., DAB No. 2794 at 19 (2017). I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors. I am neither bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS’s discretion. See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002). The DAB has explained that “[t]he determination of whether a CMP amount is reasonable is a conclusion of law, not a finding of fact.” Cedar Lake Nursing Home, DAB No. 2344 at 12 (2010), aff’d, Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010).  

The regulations specify that a CMP that is imposed against a facility on a per-day basis will fall into one of two ranges. 42 C.F.R. §§ 488.408; 488.438. The upper range of a CMP, $3,050 per day to $10,000 per day, as adjusted annually under 45 C.F.R. part 102, is reserved for deficiencies that pose immediate jeopardy to a facility’s residents and, in some circumstances, for repeated deficiencies. 42 C.F.R. § 488.438(a)(1)(i), (d)(2). The lower range of CMP, $50 to $3,000 per day, as adjusted annually under 45 C.F.R. part 102, is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm. 42 C.F.R. § 488.438(a)(1)(ii). In assessing the reasonableness of a CMP amount, an ALJ looks at the per-day amount, rather than the total accrued CMP. See Kenton Healthcare, LLC, DAB No. 2186 at 28 (2008). Pursuant to 42 C.F.R. § 488.408(g)(2), a facility cannot appeal CMS’s choice of a remedy, and an appeal of a CMP is limited to review based on the regulatory factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404(a)-(c). See, e.g., Senior Rehab., DAB No. 2300 at 19-20. In this case, CMS imposed a per-day CMP of $9,354 for one day of immediate jeopardy (May 22, 2017), and a per-day CMP of $1,655 for the period of substantial noncompliance that was not immediate jeopardy (May 23, 2017 through August 15, 2017), for a total CMP of $150,029.00. CMS Ex. 1 at 8. The per-day CMP of $9,354 is in the lower end of the $6,394 to $20,965 range for penalties imposed for deficiencies constituting immediate jeopardy. The per-day CMP of $1,655 is also at the low end of the $105 to $6,289 range for penalties imposed for non-immediate jeopardy level deficiencies. 42 C.F.R. §§ 488.408(d)(1)(iii), (e)(1)(iii); 488.438(a)(1)(i), (ii); 45 C.F.R. § 102.3; see 82 Fed. Reg. 9174, 9182 (Feb. 3, 2017). 

Petitioner limits its arguments regarding the reasonableness of the CMP to its financial condition. 42 C.F.R. § 488.438(f)(2). However, “[f]inancial condition . . . is only one of the factors that must be considered in evaluating the reasonableness of the amount of a

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CMP.” Gilman Care Ctr., DAB No. 2357 at 6 (2010). Before addressing Petitioner’s financial condition, I must take into account the other regulatory factors addressed in section 488.438(f)(2). 

First, I note that Petitioner has a high level of culpability and the deficiencies were serious; the undisputed facts show that Resident # 3’s pressure sores and overall health significantly worsened in the 20 days she resided at the facility and her death was attributed, at least in part, to her decubitus ulcers. See 42 C.F.R. § 488.438(f)(4). Petitioner repeatedly failed to timely implement the physician’s orders, and it also failed to notify the physician at various points when Resident # 3’s condition worsened. Petitioner’s care of Resident # 3 is not the only basis cited for deficiencies; in fact, Petitioner does not dispute the other deficiencies that were cited at the non-immediate jeopardy level. These deficiencies included Petitioner’s failure to adequately care for another resident with a pressure sore (Resident # 4), and its failure to notify
Resident # 4’s physician of the pressure sore for at least three days. CMS Ex. 4 at 41. Petitioner also failed to comply with 42 C.F.R. § 483.45(d)(e)(1)-(2), in that Resident # 1 received psychotropic medication without adequate indication for use of the medication. CMS Ex. 4 at 80-81. Further, Petitioner did not dispute CMS’s determination that it had insufficient 24-hour nursing staff per care plans, as required by 42 C.F.R. § 483.35, and that it failed to have a quality assessment and assurance program in place as required by 42 C.F.R. § 483.75(g)(1)(ii)-(iii), (2)(i)(ii)(h)(i). CMS Ex. 4 at 91-92, 131-32. 

I also note that Petitioner has a history of noncompliance, to include immediate jeopardy noncompliance with the requirement that it adequately treat and prevent pressure sores. 42 C.F.R. § 488.438(f)(1); see CMS Ex. 12 at 6 (CMS’s undisputed written direct testimony that Petitioner has a “poor compliance history” and that this is “the fourth Enforcement Action in three years,” with two previous citations involving Tag F314 (treatment and prevention of pressure sores), with one being at the immediate jeopardy level)). CMS Ex. 12 at 6. Finally, I agree that CMS properly determined that Petitioner’s noncompliance was at the immediate jeopardy level for one day,38 and Petitioner did not dispute the duration of its non-immediate jeopardy level noncompliance from May 23, 2017 through August 15, 2017.39  

Petitioner does not present any arguments regarding regulatory factors other than its financial condition, and its sole challenge to the reasonableness of the CMP is that it “is

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unreasonable because of Petitioner’s financial condition.” P. Br. at 16. Petitioner argues that it is unable to pay the amount imposed “without endangering the ability to operate and/or provide adequate care.” P. Br. at 16. Petitioner “seeks a reduction of the non-immediate jeopardy, per-day CMP to $579.25/day,” which “would effectively reduce the cash flow burden and give [it] the resources needed to continue uninterrupted services to the residents.” P. Br. at 17; P. Ex. 1 at 3 ¶ 11. 

Petitioner offered the declaration of Justin McGrew, who identified himself as a “Member” of Drumright Nursing Homes, LLC, the entity licensed to operate Petitioner. P. Ex. 1; see P. Exs. 3 at 29, 52, 83, 94, 96, 97, 130, 153, 171; 4 at 25, 35, 43 (tax records documenting Mr. McGrew’s financial interest in Petitioner). Mr. McGrew testified that he is “responsible for all financial matters at [Petitioner.]” P. Ex. 1 at 1 ¶ 3. Along with Mr. McGrew’s testimony, Petitioner submitted accounting records and prior tax filings. P. Exs. 2-4. Mr. McGrew testified that Petitioner’s exhibits demonstrate its inability to pay the CMP.40 P. Ex. 1 at 2 ¶ 7.

Mr. McGrew described Petitioner as a “rural operating facility” that “consistently maintains a patient mix of 75 percent Medicaid-dependent residents.” Mr. McGrew testified that this “create[s] a severe financial strain when coupled with declining Medicaid Provider Rates in Oklahoma.” P. Ex. 1 at 2 ¶ 6. Mr. McGrew asserted the following with respect to Petitioner’s ability to pay the CMP:

[Petitioner] had net losses of $337,000 in 2016 and net income of $122,000 year-to-date in 2017. . . . Based on 2016 averages ($590,000 bad debt expense out of $3.6 million in 2016 revenue, or over 16 percent), approximately $313,000 of the mid-year 2017 revenue will be adjusted later in the year for bad debt. Adjusted for this bad debt expense, there is a net loss of approximately $191,000 for 2017 at mid-year. . . . Net cash losses from operations were $237,000 for the period.

Net equity, or the net worth, of the business was $557,000 as of July 2017. However, the unrecorded bad debt expense results in this number being overstated as well. Net equity after the adjustment for bad debt would be approximately $244,000.

There are no liquid assets available to meet the payment requirements of the [CMP].

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The combination of the continued operating losses and lack of assets shows that [Petitioner] would face significant financial hardship if the [CMP] is enforced.

The proposed payment terms of making equal payments over a year at 9.75 percent interest does not lessen the detrimental impact of the CMP because the losses are expected to continue. The CMP could still result in interrupted service to [Petitioner’s] patients and a harmful reduction in staffing.

P. Ex. 1 at 2-3 ¶¶ 8-11. 

Mr. McGrew’s reference to “proposed payment terms” is to the letter from CMS dated January 10, 2018, which set forth a payment schedule divided over 12 monthly installments, beginning February 10, 2018. The letter states, in pertinent part:

CMS has reviewed the facility’s request for financial hardship consideration regarding the payment of the CMP. CMS has determined that a full payment of the CMP amount would create financial hardship. Therefore, CMS will allow [Petitioner] to pay the CMP of $150,029.00 in 12 monthly installments with interest. 

The total amount of the CMP due is $158,069.93. This total is the sum of the amount of CMP, $150,029, plus $8,040.93 of applied simple interest on the reduced amount (interest rate is 9.75% and is assessed in accordance with the regulations at 42 CFR 488.442).

CMS Ex. 1 at 11.  

Regarding a facility’s financial condition, the Board has held that “the correct inquiry . . . is ‘whether the facility has adequate assets to pay the CMP without having to go out of business or compromise resident health and safety.’” Gilman Care Ctr., DAB No. 2357 at 7 (2010), quoting Sanctuary at Whispering Meadows, DAB No. 1925 at 19 (2004); 59 Fed Reg. 56,204 (1994). As explained by the Board, “a facility’s annual profits or losses may not be an accurate reflection of a facility’s financial health or ability to pay, and must be considered in the light of such other indicators as the facility's financial reserves, assets, credit-worthiness, and other long term indicia of its survivability.’” Gilman Care Ctr., DAB No. 2357 at 8-9, and cases cited therein. The facility has the burden of proving its inability to pay the CMP by a preponderance of the evidence. Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 26 (2011); Gilman Care Ctr., DAB No. 2357 at 7.

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Petitioner has not met its burden of proof on the issue of its financial condition. Although Mr. McGrew asserts that Petitioner’s “continued operating losses and lack of assets” show that the enforcement of the CMP would constitute significant financial hardship, I am not persuaded that Petitioner does not have sufficient funds to pay the CMP. Further, Petitioner has submitted federal tax records showing that it has 23 partners and has made partner distributions within the prior two years. P. Exs. 3, 4. A balance sheet provided by Petitioner indicates that it held $296,125.26 in equity and that several partners had drawn from their capital accounts. P. Ex. 2 at 4. As the Board stated in Gilman, “the facility may be expected to satisfy its obligations to the federal government before making payments to its owners.” Gilman Care Ctr., DAB No. 2357 at 8. Considering capital accounts, alone, Petitioner has sufficient resources to pay the CMP. Further, Mr. McGrew acknowledged that Petitioner has “net equity” of $244,000.41 P. Ex. 1 ¶ 9. The CMP, with additional interest based on an installment plan, is $158,069.93, which is far less than the net equity reported by Mr. McGrew. CMS Ex. 1 at 11. To the extent that Mr. McGrew testifies that Petitioner’s assets are “illiquid,” he provides no support for this statement. For example, Mr. McGrew did not address whether any “significant assets, such as buildings and land, are illiquid . . . [and] could not be liquidated to pay a CMP . . . .” Gilman Care Ctr., DAB No. 2357 at 8; see Van Duyn Home & Hosp., DAB No. 2368 at 19 (2011) (“The standard for reducing a CMP amount for inability to pay is based, however, not on the cash flow situation but on the reduction of assets to the point that a facility may not be able to continue to operate and provide care as a consequence of paying the CMP.”). Mr. McGrew simply has not addressed why the $557,000 of reported equity, which he alleges is actually $244,000, cannot be liquidated (even at a loss or with a financial penalty) or alternatively used to secure funds to pay the CMP, particularly when it was in a financial position to allow partner draws in the prior year. See P. Ex. 2 at 1, 4, 9.  

Ms. Vollmer, in her declaration, states that “[t]he Dallas Regional Office uses a 3-month average of a SNF/NF’s Medicaid reimbursement as our indicator of financial condition. . . . Based on the 3-month average of $94,831.86, the facility’s annual Medicaid reimbursement is approximately $1,137,982.32. The total CMPs of $150,029.00 represents [sic] 13.26 percent of the estimated annual Medicaid gross revenue.” CMS Ex. 12 at 5.

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Further, I note that CMS did consider Petitioner’s financial condition and acknowledged that paying the CMP would cause Petitioner financial hardship, and as a result, proposed a monthly installment payment plan. Although Mr. McGrew dismissed the payment plan, claiming that it could still result in interrupted service and reduced staffing, he offered no compelling evidence to support why Petitioner would be unable to pay 12 monthly installment amounts of approximately $13,172.50. Likewise, Mr. McGrew provided absolutely no support how he determined that a proposed CMP of $579.2542 per day is appropriate; it is simply unclear why Petitioner feels it can pay a per-day CMP of $579.25, and nothing more, without going out of business or endangering resident health or safety.

I reiterate that financial condition is only one of the factors I must consider. A very substantial penalty is warranted owing to the egregiousness of Petitioner’s noncompliance, in that a resident’s physician was not notified of her deterioration until she was septic and had an advanced full-thickness pressure ulcer with exposed bone. Additionally, Petitioner repeatedly failed to timely implement the physician’s orders, to include providing a protein supplement (Pro-Stat), treating a pressure sore (by cleaning, medicating, and dressing the wound on a daily basis), and providing a prescribed air mattress to the resident. Further, Petitioner had a significant history of recent noncompliance, to include a recent previous citation at the immediate jeopardy level for failing to adequately treat and prevent pressure sores. Even if Petitioner demonstrated that its financial condition warranted a reduction in the total CMP, the other factors support a much larger CMP than was imposed by CMS. I add that had the duration of immediate jeopardy more accurately reflected the circumstances of the deficiencies, then immediate jeopardy should have been assessed from May 22 (or even earlier) through August 1, 2017 (the date Petitioner submitted a plan of correction to abate immediate jeopardy). The assessment of a single day of immediate jeopardy (with a per-day CMP of $9,354) is both undisputed and reasonable. Likewise, the per-day CMP of $1,655 for non-immediate jeopardy is reasonable for multiple serious deficiencies, and is remarkably low for the level of culpability and seriousness of the deficiencies, much less the repeated nature of deficiencies involving Petitioner’s inadequate management of pressure sores. Petitioner, which continues to have substantial assets, has not shown that payment of the CMP would put it out of business or compromise resident health and safety, and the evidence therefore does not justify reducing the CMP based on Petitioner’s financial condition, especially when considering the other regulatory factors. I conclude that a per-day CMP of $9,354 for one day of immediate jeopardy, May 22, 2017, is reasonable, and a per-day CMP of $1,655 for the non-immediate jeopardy noncompliance from May 23, 2017 through August 15, 2017, is reasonable pursuant to 42 C.F.R. § 488.438(f).

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IV. Conclusion

For the reasons discussed above, I grant summary judgment in favor of CMS. There is no genuine dispute of material facts, and I find that the facility was not in substantial compliance with the Medicare participation requirements. A $9,354 per-day CMP for one day of immediate jeopardy, May 22, 2017, and a $1,655 per-day CMP from May 23, 2017 through August 15, 2017, are reasonable.

 

• 1. The per-day CMP ranges applicable to this case are $6,394 to $20,965 for immediate jeopardy-level deficiencies and $105 to $6,289 for deficiencies that do not constitute immediate jeopardy.  82 Fed. Reg. 9174, 9182 (Feb. 3, 2017) (setting 2017 inflation adjustments); but see CMS Ex. 12 at 5 (CMS witness declaration inaccurately listing CMP ranges based on the 2016 inflation adjustments).  The aforementioned CMP ranges reflect the statutorily mandated amounts and ranges as adjusted for inflation, which were mandated by the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015, 104 Pub. L. No. 114-74, § 701.  82 Fed. Reg. at 9182; 45 C.F.R. § 102.3.    
• 2. Immediate jeopardy exists when “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.”  42 C.F.R. § 488.301. 
• 3. Federal nursing home regulations substantially changed beginning on November 28, 2016.  81 Fed. Reg. 68,688 (Oct. 4, 2016).  I thus cite to the new version of the regulations, which were in effect at the time of the survey.  In addition, CMS revised the F-Tags in November 2017.  However, in this case, both the state agency and CMS referred to the deficiencies under the F-Tags that were in effect prior to the revision of the regulations.  See List of Revised F-Tags, https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Downloads/List-of-Revised-FTags.pdf (last visited October 28, 2019).
• 4. Scope and severity levels are used by CMS and state survey agencies when selecting remedies.  The scope and severity level is designated by letters A through L.  Pub. 100-7, State Operations Manual (SOM), chap. 7, § 7400.5.1 (Factors That Must be Considered When Selecting Remedies), “Assessment Factors Used to Determine the Seriousness of Deficiencies Matrix” (table) (Rev. 63, effective Sept. 10, 2010 (applicable at the time of the survey at issue)); see SOM, chap. 7, § 7400.3.1 (Rev. 63, effective November 16, 2018) (current version)); see also 42 C.F.R. § 488.408.  As relevant here, a scope and severity level of “K” indicates a pattern of immediate jeopardy to resident health or safety.  A scope and severity level of “E” or “F” indicates a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy.   
• 5. This case was reassigned to me on March 8, 2019.
• 6. Petitioner’s brief and response to CMS’s motion for summary judgment are essentially identical, and Petitioner simply could have submitted a single filing as both its brief and response to CMS’s motion for summary judgment.  For ease of reference I refer to Petitioner’s filings collectively as “P. Br.”
• 7. Findings of fact and conclusions of law are in bold and italics.
• 8. Petitioner’s only reference to the duration of the cited noncompliance is its quizzical identification of the following “issue” in its briefing: “Whether Petitioner returned to substantial compliance with the participation requirements at 42 C.F.R. § 483.70(a) prior to August 16, 2017.”  P. Br. at 8.  Just as quizzically, Petitioner makes no other reference to the duration of noncompliance, and otherwise does not address 42 C.F.R. § 483.70(a) in its filings.  Further, 42 C.F.R. § 483.70(a) is not referenced in the statement of deficiencies.  CMS Ex. 4.
• 9. The statement of deficiencies detailed that Petitioner failed to adequately care for Resident # 4’s pressure sore and did not notify Resident # 4’s physician of her pressure sore for at least three days.  CMS Ex. 4 at 41.  
• 10. Throughout this decision, the terms “pressure ulcers” and “pressure sores” are used interchangeably. 
• 11. Although Petitioner reports that Resident # 3’s admission date was May 5, 2017, its records indicate that Resident # 3 was admitted to the facility on May 2, 2017.  CMS Ex. 8 at 25, 26.
• 12. Petitioner did not cite the source of its definition for a stage II pressure ulcer.
• 13. Petitioner’s policy defined a stage IV pressure sore as follows:  “Full thickness skin loss with extensive destruction, tissue necrosis, or damage to muscle, bone, or supporting structures (tendon, joint capsule).  Undermining, sinus tracts, and tunneling also may be associated with stage IV ulcers.”  CMS Ex. 10 at 64.
• 14. According to Petitioner’s pressure sore policy, a stage II pressure sore has the following characteristics:  “partial thickness skin loss involving epidermis, dermis or both.  The ulcer is superficial and presents clinically as an abrasion, blister or shallow crater.”  CMS Ex. 10 at 63.          
• 15. The form is undated, but includes a comment of “New admit.”
• 16. Petitioner ordered the Pro-Stat on May 8, 2017, and the supplier shipped it to Petitioner on May 10, 2017.  CMS Ex. 8 at 47-48.
• 17. When interviewed by the surveyor, the physician was unable to confirm that she had actually seen Resident # 3’s pressure sores that day.  See CMS Ex. 8 at 11.
• 18. Petitioner ordered the air mattress on May 10, 2017.  CMS Ex. 8 at 46.
• 19. “Tramadol is an opioid analgesic used for the therapy of mild-to-moderate pain.”  https://pubchem.ncbi.nlm.nih.gov/compound/Tramadol (last visited October 28, 2019).
• 20. The telephone order lists the incorrect year (2016); Resident # 3’s physician signed the order on May 15, 2017.  CMS Ex. 8 at 37.   
• 21. Petitioner’s records do not document why Resident # 3’s physician discontinued her catheter.  A certified nursing aide informed the surveyor that Resident # 3 “wanted the catheter out” and “[did not] know if it hurt her or was just annoying.”  CMS Ex. 8 at 5.  A licensed practical nurse informed the surveyor that Resident # 3 complained about the catheter and “wanted it [out]” because “[she] didn’t like it.”  CMS Ex. 8 at 8.
• 22. The recorded wound size is nearly illegible; I reference the measurements CMS listed in its brief, which Petitioner does not dispute.  CMS Br. at 5.
• 23. When interviewed by the surveyor, the physician described Resident # 3’s pressure sores as looking “bad” and “horrible.”  CMS Ex. 8 at 11.
• 24. Resident # 3’s death certificate documented her immediate cause of death as “cardiorespiratory failure,” which means that her heart stopped beating and she stopped breathing.  CMS Ex. 8 at 125.  The underlying causes of death included “end stage renal failure” and “sacral decubitus ulcers with osteomyelitis.”  CMS Ex. 8 at 125.  The death certificate listed other significant conditions that contributed to death, which included severe sepsis from osteomyelitis.  CMS Ex. 8 at 125.      
• 25. The DAB cited 42 C.F.R. § 483.25(c), which contains identical language to 42 C.F.R. § 483.25(b)(1), which was the regulation in effect at the time the deficiency was cited.
• 26. In its statement of undisputed facts, CMS argues that on May 10, 2017, “[t]here was no documentation that the physician was notified of the left buttock pressure ulcer and no documentation to show that it received any treatment.”  CMS Br. at 4.  Although Petitioner does not dispute this statement in its response or present evidence to refute CMS’s statement of facts, I nonetheless note that although CMS correctly pointed out the lack of treatment for the wound, the physician had ordered treatment for it.  CMS Ex. 8 at 86.
• 27. Records maintained by Petitioner indicate that the physician was notified on May 22, 2017, which is the day of Resident # 3’s transfer to the hospital.  CMS Ex. 8 at 83.  The last contact with the physician had been on May 18, 2017, when Petitioner requested an order for urinalysis testing.  CMS Ex. 8 at 78.
• 28. In fact, Petitioner cites to the surveyor’s testimony in its brief.  P. Br. at 12, 15.  Petitioner also cites to the testimony of CMS’s nurse consultant.  P. Br. at 12, 13, 14.
• 29. The record does not include any physician progress notes from May 17, 2019, which is the day that the physician noticed that Resident # 3 did not have the air mattress that she had previously ordered on May 10, 2017.  CMS Ex. 11 at 8; see 42 C.F.R. § 483.30(b)(2) (requiring a facility to ensure that a physician writes, signs, and dates progress notes at each visit).  And CMS does not state, as an undisputed material fact, that the physician had a consultation with Resident # 3 on May 17, 2017.  Further, no other records, such as nursing notes and medication orders, indicate the physician treated Resident # 3 on May 17, 2017.  In fact, the day shift charge nurse indicated that the physician saw Resident # 3 on May 10, 2017, and that Petitioner had contacted the physician on May 8 (“regarding the ulcers”), May 18 (“for orders to obtain a urinalysis”), and May 22 (“when the resident became very weak”).  CMS Ex. 11 at 5.  In addition, the physician discontinued the Foley catheter on May 15, 2017.  CMS Ex. 8 at 37.  Therefore, undisputed evidence does not support that the physician had a consultation with Resident # 3 on May 17, 2017; rather, it appears that the physician casually observed the lack of an air mattress while she was in the facility.  See CMS Ex. 11 at 8.
• 30. As I discuss below, Petitioner did not notify the physician of the worsening of Resident # 3’s pressure sores.  It is quite possible that if the physician had been informed that the wounds were worsening, she may have recommended a different course of action in response to Resident # 3’s request for removal of her catheter. 
• 31. The acute care hospital reported the following in its history of present illness for Resident # 3:  “[G]randdaughter reports that she had an ulcer on her sacrum, which was almost healed; however, they did not place her grandmother on a low air loss mattress and she was bed bound and she was concerned that it was getting worse.”  CMS Ex. 8 at 99.  At that time, Resident # 3 was noted to have general weakness and sepsis.  CMS Ex. 8 at 98.  Further, Petitioner’s May 22, 2017 discharge summary completed by the physician indicated that Resident # 3 was in “poor” condition upon discharge, had “poor” rehabilitation potential at the time of discharge, and had decreased oxygen saturation levels, increased weakness, and decreased appetite at the time of her transfer.  CMS Ex. 8 at 49.  It is quite possible that Resident # 3 was simply not feeling well enough to reposition herself. 
• 32. The record does not evidence that Petitioner informed the physician that Resident # 3 was not repositioning.  And as previously discussed, even though the physician ordered an air mattress on May 10, 2017, the physician discovered on May 17, 2017, that the air mattress had not been supplied.  CMS Ex. 11 at 8.  Petitioner is silent regarding whether its failure to provide the air mattress contributed to the worsening of the pressure sores.
• 33. The surveyor explained that the physician looked at Resident # 3’s sole pressure sore on May 3, 2017, and confirmed that she again observed her pressure sores on May 22, 2017.  CMS Ex. 11 at 10-11.
• 34. To the extent that Petitioner asserts that the physician did not discuss “her expectations as to notification” (P. Br. at 18), I note that Petitioner’s own policies directed when it should notify a physician.  CMS Ex. 10 at 64 (requiring physician notification “upon the onset of the ulcer” and “if the ulcer appears to be deteriorating or if no improvement is noted in 2-4 weeks of the initial treatment orders”); CMS Ex. 10 at 66 (requiring physician notification of a significant change in a resident’s physical condition or when there is a need to alter treatment significantly).
• 35. Nor did Petitioner notify the physician when it failed to timely implement the physician’s treatment orders.  CMS Ex. 8 at 86 (May 8, 2017 orders to clean, medicate, and cover open area to left buttock and not implemented until May 13, 2017); CMS Ex. 8 at 31, 48 (May 2, 2017 order that Resident # 3 be given Pro-Stat daily, and documentation that Petitioner did not order Pro-Stat until May 8, 2017); CMS Exs. 8 at 34; 11 at 8 (May 10, 2017 physician order that Resident # 3 be given an air mattress, and the physician’s report to the surveyor that she observed, on May 17, 2017, that the air mattress was not in place). 
• 36. The death certificate lists cardiorespiratory failure as the immediate cause of death, and end stage renal failure and sacral decubitus ulcers with osteomyelitis as underlying causes of death.  CMS Ex. 8 at 125.  In addition, contributors to death included congestive heart failure exacerbation, severe malnutrition, anemia, and severe sepsis from osteomyelitis.  CMS Ex. 8 at 125.  The death certificate does not indicate that Resident # 3’s decubitus ulcers were the sole cause of her death and I do not make such a finding.
• 37. It is unclear why CMS imposed immediate jeopardy for only the single day of May 22, 2017, which is the day that Resident # 3 was transferred to the hospital due to her pressure sores; Petitioner did not implement a plan of correction to abate immediate jeopardy until August 1, 2017.  CMS Ex. 5 at 3-5.  Because Petitioner did not abate the immediate jeopardy condition until August 1, 2017, a period of immediate jeopardy from May 22 through August 1, 2017, would have been justified.  Further, a period of immediate jeopardy beginning earlier than May 22, 2017, would have been justified; Petitioner’s failures to notify the physician of Resident # 3’s worsening condition and to timely implement the physician’s orders occurred well before May 22, 2017.
• 38. As I previously remarked, a period of immediate jeopardy from May 22 through August 1, 2017, would have been justified.
• 39. I reiterate that Petitioner does not dispute the deficiencies cited at the non-immediate jeopardy level of noncompliance, nor does Petitioner dispute the duration of the noncompliance. 
• 40. Per Mr. McGrew’s testimony, these three exhibits include financial and cash flow statements with balance sheets and tax returns.  P. Ex. 1 at 2 ¶ 7; see P. Exs. 2-4.
• 41. I note that Mr. McGrew provided scant support for how he came up with this $244,000 figure when he acknowledged that the actual equity or net worth of Petitioner was $557,000.  He reduced the net worth by providing an estimate of “unrecorded bad debt,” but provides no rationale for how he estimated the amount of unrecorded bad debt he used to offset Petitioner’s net worth.  P. Ex. 1 at 2 ¶ 9.  I observe that while Mr. McGrew referenced $590,000 in bad debt in 2016 (P. Ex. 1 at 2 ¶ 8), Petitioner deducted less than half as much bad debt (totaling $269,067) from its profits in 2015.  P. Ex. 3 at 8.  
• 42. Petitioner and Mr. McGrew do not challenge the CMP amount assessed for the sole day of immediate jeopardy.