Park View Rehabilitation Center, DAB CR5718 (2020)

DECISION

I find no basis to conclude that Petitioner, Park View Rehabilitation Center, failed to comply substantially with the Medicare participation requirement stated at 42 C.F.R. § 483.25(b)(1).  As I shall discuss in more detail below, this section establishes a skilled nursing facility's obligation to prevent, and to provide care for, pressure sores.

I impose no remedy against Petitioner.

I. Background

This case was transferred to me recently from the docket of another administrative law judge.  Upon reviewing the record, I determined that the parties had completed pre-hearing exchanges of exhibits, including the written direct testimony of witnesses, and briefs.  Neither party filed a request to cross-examine a witness.  Consequently, I decide this case based on the parties' exchanges without convening an in-person hearing.

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CMS filed exhibits that it identified as CMS Ex. 1-CMS Ex. 6.  Petitioner filed exhibits that it identified as P. Ex. 1-P. Ex. 37.  I receive these exhibits into the record.1

II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(b)(1).

B. Findings of Fact and Conclusions of Law

I note at the outset that the State agency surveyors who completed an October 4, 2018 survey of Petitioner's facility found multiple instances of failure by Petitioner to comply substantially with Medicare participation requirements.  However, the Centers for Medicare & Medicaid Services (CMS) premised its remedy determination – the imposition of a per-instance civil money penalty of $13,500 – solely on Petitioner's alleged failure to comply with 42 C.F.R. § 483.25(b)(1).  The other findings of alleged noncompliance are irrelevant, and I do not address them in this decision.

42 C.F.R. § 483.25(b)(1) requires a skilled nursing facility to provide care to a resident, consistent with professional standards of care, to prevent the development of avoidable pressure ulcers (pressure sores).  Additionally, the regulation mandates that a resident with pressure sores receives necessary treatment and services, consistent with professional standards of care, to promote healing, prevent infection, and to prevent new sores from developing.

CMS alleges that Petitioner failed to comply with this regulation in providing care to a resident who is identified as Resident # 12.  It is undisputed that this resident was in a very debilitated state as of October 2018, when Petitioner was surveyed for compliance.  On August 23, 2018, the resident was hospitalized.  CMS Ex. 2 at 15.  He returned to Petitioner's facility on August 25, 2018.  Id. at 17.  During the resident's hospitalization he was noted to have an open wound on his buttocks (i.e., coccyx area).  P. Ex. 13 at 2, 7, 10.  At his readmission to Petitioner's facility the staff also identified sores on the resident's scrotum and left heel.  CMS Ex. 2 at 17.  There is nothing in the record to establish that these sores preexisted the resident's hospital stay.  See P. Ex. 5 at 1.  The resident also developed a pressure sore on his right heel sometime in September 2018.  P. Ex. 18 at 3-6; see CMS Ex. 2 at 41.

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CMS asserts that, in providing care for this resident, Petitioner "failed to assure adequate pressure reductions were performed which would have assisted in the prevention and worsening of the pressure ulcers."  CMS's pre-hearing brief at 2.  Additionally, it contends that Petitioner's staff "failed to perform a complete dietary assessment which would have provided documentation for it to monitor and assess whether the resident's nutritional needs were being met to aid in the pressure ulcers' healing."  Id. 2  However, while contending that Petitioner's care was inadequate, CMS does not explain why that care was inadequate.  Furthermore, CMS asserts conclusions of fact without explaining the evidentiary basis for those conclusions.

CMS does not aver explicitly that Resident # 12's pressure sores were avoidable, and that Petitioner failed to prevent the development of allegedly avoidable sores.  It certainly has presented no evidence to support this contention, if indeed, that is what CMS is contending.  On the other hand, Petitioner presented a statement from Resident # 12's wound care physician in which he concludes that the resident's pressure sores were unavoidable and the consequence of his end-of-life status.  P. Ex. 24.  That statement is unrebutted.

CMS asserts that Petitioner failed adequately to provide pressure reduction to Resident # 12.  However, it does not explain what it was that Petitioner failed to do.  Is CMS contending that Petitioner failed, for example, to provide adequate pressure reduction to the resident's heels?  Or, was Petitioner remiss in providing pressure reduction to the other sores manifested by the resident?  Is there something that the staff should have provided to the resident but that it failed to provide?  Did the staff provide some measures that were, for some reason, inadequate?  CMS doesn't say.  Rather, it leaves me groping for an explanation of what it was that Petitioner allegedly did or did not do that was wrong.

The only evidence cited by CMS in its brief relating to the inadequate pressure reduction allegation is the affidavit of a surveyor, Lea Kinney-Tuma.  Ms. Kinney-Tuma does not provide any explanation of how or why Petitioner provided inadequate pressure reduction to Resident # 12.  All that she says is:  "Based on my observations, record review and staff interviews, I concluded that, as regards resident # 12, the facility failed to assure adequate pressure reduction interventions . . . ."  CMS Ex. 3 at 2.  That statement is a conclusion that cites to nothing specific in the record.  I cannot discern from Ms. Kinney-Tuma's statement what "observations, record review and staff interviews" she is referring

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to.3  Perhaps more important, I have no idea why whatever it is that she is referring to shows that Petitioner's staff provided inadequate "pressure reduction interventions" to Resident # 12.

In its brief CMS failed to discuss the findings that are stated in the report of the October 2018 survey.  See CMS Ex. 1.  Nevertheless, I have reviewed that report.  It does not elucidate CMS's contentions.  It contains the same conclusions that Ms. Kinney-Tuma makes in her affidavit, but as with the case of the affidavit, it fails to explain the basis for those conclusions.  CMS Ex. 1 at 3-10.  It recites several interventions that Petitioner's staff undertook on behalf of Resident # 12 but doesn't explain the significance of those interventions.  Id.  Most important, it does not explain why those interventions were inadequate.  At bottom, the survey report does not provide any explanation of how Petitioner failed to comply with the requirements of 42 C.F.R. § 483.25(b)(1).  See Id.

In contrast to CMS's laconic assertion of noncompliance, Petitioner offered evidence that shows that its staff actually made considerable effort to treat Resident # 12's pressure sores and to protect him against the development of additional sores.  These numerous interventions belie assertions in the statement of deficiencies in which surveyors contend that Petitioner failed to document interventions to protect the resident's heels or the implementations of a turning and repositioning program for Resident # 12.  See CMS Ex. 1 at 6.  The measures that Petitioner's staff undertook included the following:

• The staff provided the resident with a pressure reduction mattress in order to relieve pressure on the resident's heels.  P. Ex. 2 at 9-10, 30; see CMS Ex. 2 at 49, 77.  
• Petitioner's staff attempted to relieve pressure on Resident # 12's heels by floating them (raising them above the resident's bed) with pillows.  P. Ex. 5 at ¶ 3; see CMS Ex. 2 at 47, 75.
• Staff conducted weekly skin assessments of Resident # 12 and apprised the resident's physician of the findings.  CMS Ex. 2 at 107-111, 113, 115; P. Ex. 18 at 1-4.
• Staff supplied the resident with special pressure-relieving boots for his feet and added a foot cradle for his bed.  CMS Ex. 2 at 107; P. Ex. 18 at 3; see CMS Ex. 2 at 75.

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• In late September 2018 the resident's physician ordered that the resident be evaluated by a wound clinic.  This evaluation was completed.  CMS Ex. 2 at 101-05, 117; P. Ex. 22 at 1.
• The wound clinic physician debrided the resident's pressure sores and ordered additional interventions, including use of an air mattress, continued use of the pressure-relieving boots and additional medications.  CMS Ex. 2 at 104-05; P. Ex. 22 at 1.  Petitioner's staff carried out these instructions.  P. Ex. 16 at 1.
• Petitioner's staff repositioned the resident when he was in bed.  P. Ex. 2 at 17; P. Ex. 5 at ¶ 11; see CMS Ex. 2 at 49, 77.
• Petitioner's staff made adjustments to the resident's diet, which I shall discuss, below.

Additionally, the record establishes that Petitioner's staff made frequent adjustments to Resident # 12's care, in addition to conducting weekly skin assessments, in order to provide appropriate care.  For example, on September 12, 2018, the staff advised the resident's physician of the resident's deteriorating condition.  CMS Ex. 2 at 107, 113.  The staff implemented several new interventions after that consultation.  Id. at 113.  The staff consulted the physician again on September 24, 2018.  Id. at 115.  On September 25, 2018, the physician personally examined the resident and ordered a wound clinic referral.  Id. at 117.  On September 29, the staff implemented changes in the resident's medications.  P. Ex. 16 at 1; P. Ex. 17 at 1, 3.

CMS does not address any of these interventions in its allegations or in its brief.  I am hard put to find fault with Petitioner's numerous interventions absent any argument from CMS.  Moreover, those interventions appear to have been appropriate given the resident's deteriorating condition.  Petitioner's staff made substantial efforts to assist Resident # 12 even as his problems increased in number and magnitude.

Although CMS asserts that Petitioner's staff failed to make a complete dietary assessment of Resident # 12's needs, it fails to explain in what respect Petitioner was deficient.  Once again, Ms. Kinney-Tuma's declaration contains a conclusion without citing to supporting evidence.  See CMS Ex. 3 at 2.  She says only that Petitioner's staff failed to perform a "complete dietary assessment" of Resident # 12.  See Id.  She does not explain what a complete dietary assessment might involve.  CMS offers neither evidence nor argument explaining what a complete dietary assessment consists of or how Petitioner failed to provide one.

The one exhibit cited by CMS in its brief concerning Resident # 12's diet consists of a nutrition/dietary note that appears to have been prepared by a registered dietician.  CMS Ex. 2 at 41.  That note contains a lengthy explanation of the dietary interventions that

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Petitioner's staff was providing for Resident # 12.  CMS does not explain why this note demonstrates that Petitioner's staff failed to perform a dietary assessment of Resident # 12's needs.  Furthermore, CMS does not argue that the interventions recited in the exhibit are inadequate, inappropriate, or otherwise incorrect.4

The record establishes that Petitioner undertook numerous additional dietary interventions on behalf of Resident # 12, in addition to the assessment cited by CMS in its brief.  CMS does not discuss these at all.  It offers no explanation why these interventions show failure by Petitioner to comply with regulatory requirements.

I find that the weight of the evidence establishes that Petitioner's staff was attentive to Resident # 12's dietary needs.  The measures that Petitioner's staff undertook to address the resident's diet – and not addressed at all by CMS – include these:

• Petitioner's dietician attended weekly dietary meetings at which Resident # 12's diet was discussed with members of Petitioner's staff.  P. Ex. 3 at 7-8, 15; P. Ex. 4 at 18-19; P. Ex. 8 at 1; P. Ex. 27.
• The staff kept track of the resident's food intake.  P. Ex. 34.
• Staff provided the resident with assistance at meals.  See CMS Ex. 2 at 47, 91.
• Staff supplied Resident # 12 with a variety of nutritional supplements.  P. Ex. 3 at 8-13; P. Ex. 15 at 6-7; P. Ex. 16 at 6, 8; P. Ex. 17 at 2, 4; P. Ex. 27 at 7-11; P. Ex. 28; P. Ex. 36 at 2; P. Ex. 37 at 15; see CMS Ex. 2 at 47, 89, 91.

In sum, I conclude that CMS failed to articulate a case against Petitioner of noncompliance with the requirements of 42 C.F.R. § 483.25(b)(1).  Indeed, the weight of the evidence establishes that Petitioner was attentive to the resident's needs.

• 1. Petitioner objected to my receiving CMS Ex. 3, the declaration of Lea Kinney-Tuma, because it was not made under oath or as a written declaration signed under penalty of perjury for false testimony.  CMS answered the objection by resubmitting the declaration.  I receive the amended declaration.
• 2. Exclusive of caption and conclusion, CMS's entire pre-hearing brief is three and one-half pages long, of which its discussion of the evidence comprises less than a page.  The remainder of the brief is boilerplate legal analysis.
• 3. Ms. Kinney-Tuma refers to CMS Ex. 2 as support for her general conclusions.  This exhibit consists of her surveyor notes and 183 pages of treatment records.  Ms. Kinney-Tuma does not identify anything specific in this exhibit that might support her general conclusions.
• 4. Someone made a handwritten notation on the nutrition/dietary note, which reads:  "done last day of survey."  CMS Ex. 2 at 41.  However, CMS does not argue that the dietary assessment that the note records is untimely.  I draw no inference from this unexplained notation.