Rehab at River's Edge, DAB CR5296 (2019)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Rehab at River’s Edge, a skilled nursing facility, and I sustain a per-instance civil money penalty of $20,505.

I. Background

CMS rests its motion on exhibits that it identifies as CMS Exs. 1-29.  Petitioner opposes CMS’ motion with exhibits of its own that it identifies as P. Exs. 1-15.  I do not receive any of these exhibits into evidence inasmuch as I grant summary judgment based on undisputed material facts.  I cite to some of these exhibits either to illustrate facts that I find not to be in dispute or to address fact allegations that I find to be unsupported or irrelevant.

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II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues in this case are whether the undisputed material facts establish that Petitioner failed to comply substantially with 42 C.F.R. § 483.60 and whether CMS’s remedy determination is reasonable.

The notice letter that CMS sent to Petitioner on September 19, 2018 informing it of the findings of noncompliance and remedy determination stated that CMS based its determination on Petitioner’s noncompliance with 42 C.F.R. § 483.60(e)(1)(2), a subsection of 42 C.F.R. § 483.60.  CMS Ex. 2.  In its motion, CMS advises that this citation was in error and that the correct citation is to 42 C.F.R. § 483.60.  CMS gave Petitioner adequate notice of its amended allegation and I find no prejudice to Petitioner.

In its motion, CMS also alleges that Petitioner failed to comply with three additional regulations.  These sections are:  42 C.F.R. §§ 483.25(d), (g)(3), and 483.24.  I find these allegations to be irrelevant because the remedy determination – the per-instance civil money penalty that CMS determined to impose – hinges on a single instance of noncompliance with 42 C.F.R. § 483.60.  For that reason I do not address CMS’s additional allegations of noncompliance in this decision.

B. Findings of Fact and Conclusions of Law

I find no dispute that on the evening of March 23, 2018, a nursing assistant at Petitioner’s facility fed a resident – Resident # 11 – non-pureed tuna, violating an order that the resident be fed only pureed food.  That action endangered the health and safety of the resident and it contravened the requirement of 42 C.F.R. § 483.60 that a skilled nursing facility provide each of its residents with a diet that meets the resident’s special dietary needs.

I find the following facts to be undisputed.  Resident # 11 was gravely ill, suffering from ailments that included Alzheimer’s disease, syncope, heart disease, and hypertension.  CMS Ex. 7 at 1.  Most notably, the resident had a diagnosis of dysphagia, a condition consisting of an inability to swallow food in a normal manner.  CMS Ex. 17 at 1-2; CMS Ex. 20 at 1; CMS Ex. 28 at 3-5.  Individuals experiencing dysphagia are at risk for inhaling food particles into their airways (“aspiration”), a complication that can cause pneumonia or choking.  CMS Ex. 17 at 2.  Treatment for dysphagia typically consists of modifying the patient’s diet so that the patient can eat with a lessened risk of aspiration.  CMS Ex. 19 at 2.

Some dysphagia sufferers are treated with a mechanical soft diet consisting of food that has been softened to render swallowing easier.  CMS Ex. 19 at 2.  In more severe cases,

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the patient is offered a diet consisting of food that has been pureed in a blender.  Id.  Pureed food requires no chewing and it is unlikely to block air passages if aspirated.  CMS Ex. 18 at 2.

Resident # 11 at times received a mechanical soft diet and at other times received pureed food.  On March 15, 2018, a speech-language pathologist recommended that the resident’s diet be upgraded from pureed food to mechanical soft food based on her progress during swallowing therapy.  CMS Ex. 5 at 7; CMS Ex. 15 at 1, 10.  The resident was hospitalized from March 18-March 22.  The speech-language pathologist at the hospital recommended that the resident be fed only pureed food.  CMS Ex. 24 at 10, 15; CMS Ex. 25 at 29.  When the resident returned to Petitioner’s facility on March 22, 2018, her hospital transfer sheet stated that the resident was on a pureed diet with honey-thickened liquids.  CMS Ex. 6 at 2-3.

Petitioner’s records as of Resident # 11’s readmission are unclear in that they state both that the resident was to receive a pureed diet and a mechanically altered diet.  CMS Ex. 7 at 6-7.  On the evening of March 22, 2018, a physician prescribed a mechanical soft diet for the resident.  CMS Ex. 8 at 3; CMS Ex. 10 at 11.  However, on March 23, a licensed practical nurse assessed the resident as needing a pureed diet.  CMS Ex. 3 at 3.  Petitioner’s dietician concurred with the nurse’s assessment.  The dietician recommended that the resident receive a pureed diet and informed Petitioner’s kitchen staff of the change.  CMS Ex. 5 at 3; CMS Ex. 10 at 5.  A physician issued an order on that date directing that Resident # 11’s diet be changed to consist only of pureed food.  CMS Ex. 5 at 3; CMS Ex. 8 at 2.  The facts therefore establish unequivocally that the resident was supposed to be receiving only pureed food as of March 23, 2018.

On the evening of March 23, Petitioner’s kitchen staff prepared a meal ticket for the resident instructing that the resident would receive “pur tuna sld on croissant” (pureed tuna salad on croissant) and “pur chicken noodle soup” (pureed chicken noodle soup).  CMS Ex. 3 at 2.  Petitioner’s instructions for pureeing tuna salad required that it be placed with liquid in a blender and pureed until it achieved a pudding-like consistency.  CMS Ex. 10 at 15.  Petitioner’s standard for “pureed textured” food requires it to be smooth like mashed potatoes.  Petitioner instructed its kitchen staff that bread be softened by soaking.  Id. at 20.  Petitioner’s policy was to serve pureed tuna salad by itself on a plate without bread.  CMS Ex. 12 at 49.

A certified nursing assistant (nursing assistant) served the resident her dinner on the evening of March 23, 2018.  He observed that the resident’s meal included dry and flaky tuna between two pieces of white bread.  CMS Ex. 3 at 5; CMS Ex. 12 at 21-22.  The nursing assistant decided to add the tuna fish to the resident’s soup.  Id.  He took a spoonful of soup and mixed it with a small amount of the tuna without the bread.  CMS Ex. 3 at 6.  He fed the resident about two spoonfuls of the soup-tuna mixture and

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observed that Resident # 11 was coughing.  Id.  The nursing assistant stopped feeding the resident and reported the resident’s condition to a registered nurse.1

The registered nurse examined Resident # 11 and observed that she was experiencing labored breathing.  CMS Ex. 3 at 7.  The resident was unable to communicate, was drooling on the sides of her mouth, and had a bluish tinge to her complexion.  Her breath sounds were diminished and there were crackling sounds in her lungs.  Id.  The resident’s vital signs were abnormal.  The resident expired shortly thereafter.  Id. at 8.

The undisputed facts establish that another staff member had told the nursing assistant that the resident’s diet had been changed.  CMS Ex. 3 at 5; CMS Ex. 12 at 21.  However, there is no record of anyone further explaining to the nursing assistant that Resident # 11 should be fed only pureed food.  The nursing assistant did not review the resident’s record to ascertain exactly what dietary orders had been issued.

Petitioner does not dispute the facts establishing Resident # 11’s condition nor does it deny that its staff was directed on March 23, 2018 to feed Resident # 11 only pureed food.  Petitioner asserts that there is a dispute as to whether its staff fed Resident # 11 non-pureed tuna on the evening of March 23.  I find no genuine fact dispute as to that issue.  Petitioner offers no facts that rebut the nursing assistant’s admission that he fed the resident non-pureed tuna on that date.

Petitioner asks that I find a fact dispute based on assertions of its kitchen staff that, in following dietary instructions for Resident # 11, the staff would have mashed canned tuna as finely as possible, added to it onion powder, parsley and other spices for flavor, and mixed it to a very fine consistency using mayonnaise.  P. Ex. 12 at 2; Petitioner’s brief at 12.  But these purported facts, even if I assume them to be true, do not rebut the facts adduced by CMS showing that on the evening in question the resident received non-pureed tuna.

In the first place, the procedure for preparing tuna for Resident # 11 described by Petitioner does not constitute pureeing the tuna consistent with Petitioner’s dietary policy, which required that the tuna be combined with liquid in a blender and pureed until it attained a pudding-like consistency.  CMS Ex. 10 at 15.  The procedures described by Petitioner thus fall short of pureeing the tuna.

Furthermore, Petitioner would have me compare apples to oranges in order to find a fact dispute.  The process by which Petitioner’s kitchen staff prepares food for its residents and by which it satisfies special dietary requirements such as an order for a pureed diet is

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not at issue in this case.  What is at issue is what actually occurred on the evening of March 23, 2018.

CMS offered an eyewitness account to support its assertion that the resident received non-pureed tuna on that evening.  The admission by a member of Petitioner’s staff that he served the resident non-pureed tuna is evidence of what actually occurred.  Evidence offered by Petitioner showing what typically occurs when its kitchen staff fills an order for a pureed diet does not rebut an eyewitness account of what actually happened.  The logical flaw in Petitioner’s assertion is obvious.  Petitioner is asking me to conclude that Petitioner’s staff followed a process simply because the process exists.

In deciding a motion for summary judgment, I am required to draw all reasonable inferences favorable to the opposing party arising from the facts before me.  There are no facts in this case from which I may infer that Petitioner’s staff served pureed tuna to Resident # 11, given that the record contains an eyewitness account that the resident received non-pureed tuna that is not rebutted by anything that directly contradicts that account.  Petitioner has not offered the testimony of anyone claiming to have observed the tuna that the staff prepared on the evening of March 23.2

The parties disagree whether feeding the resident non-pureed tuna was the cause of her choking and death.  CMS offers facts that strongly suggest that the tuna caused a blockage of the resident’s airway and that she choked to death as a result.  Petitioner, in response, offers the testimony of its medical director and contends that the resident’s death was a natural, albeit unexplained, consequence of her illness and unrelated to what the staff fed her on the evening of March 23, 2018.

It is unnecessary that I resolve this dispute in order to grant summary judgment.  The deficiency in this case lies in Petitioner’s failure to provide Resident # 11 with the diet that was ordered for her by her physician.  The consequences of Petitioner’s failure to follow the physician’s prescribed diet are not a necessary element of a finding of noncompliance.

But, irrespective of the actual consequences, the undisputed facts support a conclusion that feeding Resident # 11 non-pureed tuna risked severe consequences for that resident.  The staff recommended, and the resident’s physician prescribed, a pureed diet for Resident # 11 precisely because feeding her with non-pureed food created a possibility of aspiration, choking, and/or pneumonia.

It is also unnecessary that I decide whether Petitioner’s noncompliance created immediate jeopardy for Resident # 11.  Immediate jeopardy – defined at 42 C.F.R.

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§ 488.301 to mean noncompliance that creates a likelihood of serious injury, harm, or death to a resident – is a necessary finding only in those cases in which CMS imposes one or more remedies that are specifically authorized for immediate jeopardy level noncompliance.  Here, CMS determined to impose a per-instance civil money penalty, a remedy for which a finding of immediate jeopardy is not a prerequisite.  42 C.F.R. §§ 488.438(a)(2), 498.3(b)(14).

In deciding whether a civil money penalty – in this case a per-instance penalty of $20,505 – is reasonable I must consider the regulatory factors set forth at 42 C.F.R. §§ 488.438(f)(1)-(4) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors include, among others, the seriousness of the noncompliance and a facility’s compliance history.

I find the penalty amount to be reasonable based on this case’s undisputed material facts.

As I have discussed, Petitioner’s noncompliance – even without regard to the question of immediate jeopardy – was very serious.  Petitioner’s staff recommended, and Resident # 11’s physician ordered – that Resident # 11 be fed a pureed diet because they recognized that she was in danger of possibly fatal aspiration if she consumed anything that was not pureed or liquid.  Feeding this resident non-pureed food, as happened here, put her at a very high risk for sustaining lethal consequences.

In assessing the seriousness of Petitioner’s noncompliance, I have taken into consideration that the undisputed facts do not show that the staff willfully disregarded the resident’s dietary orders.  The facts permit only an inference that feeding the resident non-pureed food was an inadvertent error by the staff.  But, inadvertent as this error may have been, it was nonetheless extremely serious and it endangered the life of the resident.

Moreover, the errors in this case consisted of more than a failure by Petitioner’s kitchen staff to prepare a pureed meal for Resident # 11.  There was, in fact, a series of errors that led to the resident being fed non-pureed tuna.  First, there was the failure to prepare a prescribed diet.  Second, there was a failure to instruct the nursing assistant charged with feeding Resident # 11 that the resident be fed only pureed food.  Finally, there was a failure by the nursing assistant – after being told only that the resident’s diet had been changed – to ascertain exactly what constituted a changed diet.

I have also considered Petitioner’s compliance history, a history not challenged by Petitioner.  This facility has a history of serious noncompliance with participation requirements.  In 2017, the facility had two serious deficiencies and in 2015, it had

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another serious deficiency.  CMS Ex. 16.  This history, coupled with the seriousness of the noncompliance that I find here, are ample grounds for justifying the full penalty amount.3

• 1. The resident’s son corroborates the nursing assistant’s admission. He observed Resident # 11 being fed with non-pureed tuna on March 23. CMS Ex. 14 at 6.
• 2. Petitioner’s contention that Resident # 11 received only pureed food on the evening of March 23 contradicts the findings of its director of nursing. CMS Ex. 3 at 18.
• 3. As a consequence of the penalty amount, Petitioner loses the authority to conduct a nurse aide training and evaluation program. Petitioner did not raise a legal argument to challenge this outcome.