Park Manor Health Care and Rehabilitation, DAB CR5401 (2019)

DECISION

As explained herein, I find in favor of the Centers for Medicare & Medicaid Services (CMS) against Petitioner, Park Manor Health Care and Rehabilitation, and sustain the imposition of remedies, consisting of a per-instance civil money penalty of $5,000, a per-day civil money penalty totaling $78,200, and a denial of payment for new Medicare admissions from February 8 through February 13, 2014.

I. Background

Petitioner is a skilled nursing facility doing business in DeSoto, Texas that participates in the Medicare program. Surveyors from the Texas Department of Aging and Disability Services (state agency) completed a survey at Petitioner’s facility on January 9, 2014. Based on their findings, CMS alleged that Petitioner was substantially noncompliant with the following Medicare participation requirements:

• 42 C.F.R. § 483.13(c) (Tag F226), scope and severity (s/s) level “E”;
• 42 C.F.R. § 483.25 (Tag F309), s/s level “H”;

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• 42 C.F.R. § 483.25(a)(3) (Tag F312), s/s level “E”;
• 42 C.F.R. § 483.25(c) (Tag F314), s/s level “H”;
• 42 C.F.R. § 483.25(d) (Tag F315), s/s level “E”;
• 42 C.F.R. § 483.25(i) (Tag F325), s/s level “H”;
• 42 C.F.R. § 483.35(d)(1)-(2) (Tag F364), s/s level “E”;
• 42 C.F.R. § 483.35(i) (Tag F371), s/s level “F”; and
• 42 C.F.R. § 483.75(f) (Tag F498), s/s level “E.”1

CMS also alleged that Petitioner had nine Life Safety Code violations.

Based on these survey findings, CMS imposed the following remedies on Petitioner by letter dated February 7, 2014: a $2,000 per-instance civil money penalty for the deficiency at 42 C.F.R. § 483.25 (Tag F309); a $2,000 per-instance civil money penalty for the deficiency at 42 C.F.R. § 483.25(i) (Tag F325); a $1,000 per-instance civil money penalty for the deficiency at 42 C.F.R. § 483.25(c) (Tag F314); a denial of payment for new admissions beginning February 8, 2014; and directed in-service training. CMS also warned Petitioner its Medicare provider agreement would be terminated if it did not achieve substantial compliance by July 9, 2014.2

On January 27, 2014, the state agency completed another survey at Petitioner’s facility. Based on their findings, CMS determined that Petitioner was not in substantial compliance with the following program requirements:

• 42 C.F.R. § 483.13(c) (Tag F224);
• 42 C.F.R. § 483.13(c) (Tag F226);
• 42 C.F.R. § 483.20(k)(3)(i) (Tag F281); and
• 42 C.F.R. § 483.25 (Tag F309).

CMS determined that the facility’s noncompliance with respect to these four tags persisted at s/s level “L,” indicating widespread immediate jeopardy to the health and safety of the facility’s residents. CMS Ex. 1 at 1.

Based on these survey findings, on February 7, 2014 CMS imposed civil money penalties of $7,650 per day for a period of immediate jeopardy from January 20 through 27, 2014,

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and $1,000 per day beginning January 28, 2014, continuing until further notice. Id. CMS advised Petitioner that the other remedies imposed in the February 7, 2014 notice letter remained unchanged. Id. at 2.

On April 11, 2014, CMS notified Petitioner that it had achieved substantial compliance with Medicare participation requirements as of February 14, 2014. CMS Ex. 1 at 4. CMS advised Petitioner that it modified its previous notice of remedies, stating that it: rescinded the proposed termination of Petitioner’s Medicare provider agreement; maintained denial of payment for new admissions from February 8 through February 13, 2014; imposed a $5,000 per-instance civil money penalty and a $7,650 per-day civil money penalty from January 20, 2014 through January 27, 2014 (totaling $61,200); and imposed a $1,000 per-day civil money penalty from January 28, 2014 through February 13, 2014 (totaling $17,000) for a total CMP of $78,200. Id.

On April 9, 2014, Petitioner timely requested a hearing to challenge CMS’ imposition of remedies.3  Petitioner contested all the alleged health deficiencies from both surveys but not the alleged Life Safety Code deficiencies, which are therefore not at issue before me.

Administrative Law Judge Scott Anderson was initially designated to hear and decide this case. On April 17, 2014, he issued an Acknowledgment and Pre-hearing Order (APHO) that set forth deadlines by which the parties were required to file their pre-hearing exchanges, including briefs, proposed exhibits and witnesses, and the direct testimony of any proposed witnesses. APHO at 2-3.

CMS filed a pre-hearing brief (CMS Pre-hrg. Br.) and 31 exhibits (CMS Exs. 1-31). Petitioner filed a pre-hearing brief (P. Pre-hrg. Br.) and 19 exhibits (P. Exs. 1-19). In its pre-hearing brief, Petitioner only discussed Tags F309, F314, and F325 cited at the January 9, 2014 survey, and Tags F224, F226, F281, and F309 cited at the January 27, 2014 survey.

After filing its pre-hearing exchange, CMS filed a motion to dismiss and a motion for summary judgment. Petitioner opposed both motions.

On June 9, 2016, Judge Anderson issued a notice of hearing in which he denied CMS’ motions and admitted CMS Exs. 1-30 and P. Exs. 1-19 into the record. Jun. 9, 2016 Notice of Hearing. On March 7, 2017, the parties filed a joint motion to waive an oral

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hearing and requested a decision on the written record. Judge Anderson granted their request shortly thereafter. Mar. 9, 2017 Order.4

The parties filed a joint status report on April 6, 2017, agreeing the deficiencies in dispute were Tags F309, F314, and F325 from the January 9, 2014 survey, and Tags F226, F281, and F309 from the January 27, 2014 survey. While the parties omitted Tag F224 from the January 27, 2014 survey from their status report, they nevertheless both discussed this citation in their closing briefs. I have accordingly considered that deficiency in dispute between the parties and address their arguments herein.

Judge Anderson subsequently allowed the parties to file closing briefs (CMS Closing Br.; P. Closing Br.). CMS thereafter filed a reply brief (CMS Reply). On August 19, 2017, this matter was transferred to me to hear and decide.

II. Statement of Issues

The issues presented are:

A. Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.25 (Tag F309); 42 C.F.R. § 483.25(c) (Tag F314); and 42 C.F.R. § 483.25(i) (Tag F325) at the time of the January 9, 2014 survey;

B. Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.13(c) (Tag F224); 42 C.F.R. § 483.13(c) (Tag F226); 42 C.F.R. § 483.20(k)(3)(i) (Tag F281); and 42 C.F.R. § 483.25 (Tag F309) at the time of the January 27, 2014 survey;

C. If Petitioner was not in substantial compliance, whether CMS’ determination that immediate jeopardy existed at the facility from January 20 through January 27, 2014, was clearly erroneous.

D. If Petitioner was not in substantial compliance with program requirements, whether the civil money penalties imposed by CMS were reasonable.

III. Discussion - January 9, 2014 Survey

A. CMS’ renewed motion to dismiss Petitioner’s hearing request as untimely is denied.

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CMS argues as “a threshold matter” in its closing brief that Petitioner’s request for hearing based on the January 9, 2014 survey was untimely, as it was filed on the 61^st day following the date of CMS’ notice letter.5  CMS Closing Br. at 27-29, citing CMS Ex. A at 1.

CMS first filed a motion to dismiss on this basis on Sep. 9, 2014, to which Petitioner responded on Oct. 22, 2014. Judge Anderson denied this motion in the Notice of Hearing he issued on June 9, 2016. In its renewed motion before me, CMS again argues that the facsimile notice it issued to Petitioner on February 7, 2014 advised Petitioner to file a hearing request by April 8, 2014, and that Petitioner did not in fact mail its request until April 9, 2014, making it untimely. CMS Closing Br. at 28-29. However, Judge Anderson found Petitioner had proffered sufficient evidence (an affidavit and a photocopy of the envelope containing the hearing request bearing a postage meter stamp dated April 8, 2014) to conclude Petitioner’s counsel had mailed the request on April 8, 2014. Jun. 9, 2016 Order at 3.

CMS has not explained why I should disregard Judge Anderson’s ruling. Moreover, even if I disagreed with Judge Anderson’s evaluation of this evidence, CMS has thoroughly litigated this case on its merits, forcing Petitioner to do the same. CMS waited nearly three years to renew its untimeliness argument on page 27 of its 35-page closing brief, proffering no new evidence and marshaling no new arguments in its second attempt. Thus, even if CMS’ motion had merit, I would find CMS waived its right to contest the timeliness of Petitioner’s hearing request. In any case, I see no reason to overturn Judge Anderson’s ruling at this very late juncture. I deny CMS’ renewed motion to dismiss.

B. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25 (Tag F309) because Petitioner failed to provide Residents 3, 9, 11, and 17 the necessary care and services to attain or maintain their highest physical well-being in accordance with their comprehensive assessments and plans of care.

The regulation governing quality of care in skilled nursing facilities demands that:

[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical,

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mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.

42 C.F.R. § 483.25.

The quality of care requirements promulgated in law and regulation are “based on the premise that the facility has (or can contract for) the expertise to first assess what each resident’s needs are (in order to attain or maintain the resident’s highest practicable functional level) and then to plan for and provide care and services to meet the goal.” Spring Meadows Health Care Ctr., DAB No. 1966 at 16 (2005). The regulatory regime thus “imposes on facilities an affirmative duty designed to achieve favorable outcomes to the highest practicable degree.” Windsor Health Care Ctr., DAB No. 1902 at 16-17 (2003), aff’d, Windsor Health Care Ctr. v. Thompson, No. 04-3018 (6th Cir. 2005). To that end, the facility must take “reasonable steps” and “practicable measures to achieve that regulatory end.” Clermont Nursing & Convalescent Ctr., DAB No. 1923 at 21 (2004), aff’d, Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F. App’x 900 (6th Cir. 2005).

The Board has concluded that 42 C.F.R. § 483.25 not only requires skilled nursing facilities to furnish the care and services set forth in a resident’s care plan, but also to implement physicians’ orders, monitor and document a resident’s condition, and follow its own policies. See, e.g., Life Care Ctr. of Bardstown, DAB No. 2479 at 22 (2012); Alexandria Place, DAB No. 2245 at 7-8 (2009) (upholding a deficiency when a petitioner did not provide care in accordance with a doctor’s order); Oxford Manor, DAB No. 2167 at 5-6 (2008) (affirming an ALJ’s reliance on a facility’s policy as evidence of the standard of care the facility expected its staff to provide).

The quality of care provision also implicitly imposes on facilities a duty to provide care and services that, at a minimum, meets accepted professional standards of quality “since the regulations elsewhere require that the services provided or arranged by the facility must meet such standards.” Spring Meadows, DAB No. 1966 at 17, citing 42 C.F.R. §§ 483.25, 483.75.

In this case, CMS alleges that Petitioner failed to comply with the regulatory requirements of 42 C.F.R. § 483.25 with respect to four residents – Residents 3, 9, 11, and 17. Below, I describe the allegations in the Statement of Deficiencies (SOD) relating to each of these residents:

Resident 3

Staff failed to pre-medicate Resident #3 before wound care and repositioning.

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Staff failed to assess the effectiveness of Resident #3’s pain medication and other interventions to control her pain.

These failures resulted in Resident #3 voicing complaints of pain during wound care and repositioning on 01/06/14.

CMS Ex. 5 at 12.

Resident 9

LVN [licensed vocational nurse] Y was unable to accurately document Resident #9’s wounds when she was assessing the resident’s skin. She was documenting the resident’s skin was clear when the resident was still receiving treatments on her wounds.

WCN [wound care nurse] assessed the wound on Resident #9’s second right toe as being diabetic because the resident had a diagnosis of DM and did not take into consideration the wound was on the knuckle of the toe, a pressure area.

These failures placed Resident #9 at risk for missed treatments and inappropriate treatments resulting in delayed healing.

Id. at 13.

Resident 11

LVN X and Y were not aware Resident #11’s foley catheter had thick cloudy sediment. Both nurses stated catheter was checked every shift.

Resident #11 had a history of urinary tract infections (UTIs). The facility failed to properly assess and ensure Resident #11 was free of urinary tract infections.

Id. at 13.

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Resident 17

The Wound Care Nurse (WCN) failed to daily observe and change Resident #17’s venous ulcer wound dressing when it became soiled as ordered.

Id. at 13-14.

CMS argues that “Petitioner has not submitted any evidence or exhibits regarding the January 9, 2014 survey” and therefore, as a practical matter, cannot rebut CMS’ prima facie case that it was not in substantial compliance with 42 C.F.R. § 483.25 with respect to Residents 3, 9, 11, and 17. CMS Reply at 3.
Petitioner responds that imposition of a CMP is precluded because CMS incorrectly cited these allegations under Tag F309, arguing that the State Operations Manual (SOM) permits use of the F309 tag only where the alleged deficient practice is not covered by another more specific quality of care tag. P. Closing Br. at 16. Specifically, Petitioner contends that deficiencies related to pressure ulcers should have been brought solely under F314, while the allegations pertaining to deficiencies in catheter care should have been cited under F315. Id. And with respect to Resident 3, Petitioner claims a citation under Tag F309 is inappropriate when “the deterioration in question” is an expected part of a resident’s disease process. Id.

The Board has described Petitioner’s precise argument as “based on faulty legal premises.” Lakeridge Villa Health Care Ctr., DAB No. 1988 at 14 (2005). There, a petitioner claimed deficiency allegations relating to pressure sores and accidents should not have been cited under Tag F309 because those deficiencies are specifically addressed in subsections of section 483.25. Id. at 14-15. The Board observed, “[T]he fact that CMS may have been able to cite a deficiency under another tag is irrelevant . . . .” Id. at 15. Rather than prescribe the overly formalistic approach Petitioner demands, the Board emphasized it would focus on whether the record as a whole supported the ALJ’s findings of fact, and whether those findings were legally supported by the regulatory requirements under which a facility was cited. Id.6

Here, CMS has alleged Petitioner violated Tag F309 with respect to Residents 3, 9, 11, and 17. The issue I must decide is not whether CMS or its contractor followed the SOM,

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but whether CMS has established a prima face case based on the evidence under that tag, and I must analyze those allegations under 42 C.F.R. § 483.25.

1. Petitioner violated 42 C.F.R. § 483.25 with respect to Residents 9 and 11.

Petitioner offered no specific arguments to dispute the findings regarding Residents 9 and 11 under Tag F309.7 Therefore, with respect to those two residents, CMS has proven its prima facie case and absent any effort by Petitioner to rebut CMS’ deficiency findings under this tag, I find Petitioner was out of substantial compliance with 42 C.F.R. § 483.25.

2. Petitioner violated 42 C.F.R. § 483.25 with respect to Resident 3.

With respect to Resident 3, Petitioner asserts that CMS “has not produced any evidence to show that this resident was not receiving pain medication as ordered” and “CMS has no evidence that there was a physician’s order requiring the resident to be medicated prior to wound care.” P. Closing Br. at 16-17. Petitioner’s first statement is incorrect, as I discuss more fully below; its latter claim is technically correct but utterly misses the point, which is that Resident 3’s physician had prescribed substantial pain medication, some of which was to be administered as needed – meaning when the resident was in pain.

Resident 3’s record contains medication orders from January 2014 that specified administration of: one tablet of Norco (Hydrocodone) 5-325 to be given three times a day; application of a 100 mcg Fentanyl patch topically every 72 hours for pain; 0.25 to 1.0 ml of morphine sulphate given by mouth every hour as needed for pain; and a 650 mg suppository of acetaminophen given every four hours as needed for pain. CMS Ex. 6 at 141-42. On January 7, 2014, Resident 3’s physician increased Resident 3’s pain medication dosage and ordered the Norco dosage tablet to be administered once every four hours, instead of three times a day, while Resident 3 was awake. Id. at 144.

Resident 3 confirmed the facility did not comply with the physician orders to administer drugs as needed for her pain. During the January 9, 2014 survey, she told the surveyor that she was “okay” when “she was still and asleep” but when staff moved her, “sometimes it hurt badly.” CMS Ex. 5 at 20. Resident 3 also stated that sometimes Petitioner’s staff gave her pain medication while at other times, they did not. Id. at 21. The resident stated that she was grateful for the surveyor’s intervention, which had provoked a better response from facility staff in attempting to understand her expression of pain. Id. at 24.

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Petitioner’s efforts were also inadequate under the facility’s own pain policy, which required its nurses to monitor and document a resident’s pain every shift, specifically requiring documentation of breakthrough pain and the efficacy of pain medications administered. CMS Ex. 6 at 194. But facility staff confirmed Resident 3’s pain medication was administered and documented inadequately. One nurse admitted he did not always document the results of pain medication given. CMS Ex. 5 at 27. Resident 3’s charts reflected documentation of only 24 doses of morphine given from November 24, 2013 through January 7, 2014. Id. During the January 9, 2014 survey, the surveyor observed two certified nurse aides (CNAs) repositioning Resident 3, one of whom admitted that Resident 3 had not been given pain medication prior to repositioning and treatments until the surveyors intervened. CMS Ex. 5 at 24.

The facility’s Assistant Director of Nursing (ADON) reviewed Resident 3’s clinical record at the time of the survey, and opined Resident 3 did not receive sufficient assistance to manage her pain. CMS Ex. 5 at 25. The ADON conceded that she thought the nurses had “become complacent with Resident #3’s expressing of pain” and stated additional training would be necessary to educate staff to better assess pain.8  Id.

Petitioner has not disputed Resident 3’s statements, nor those of its own staff. As part of its duty to deliver necessary care and services to its residents, Petitioner had to respond to Resident 3’s complaints of pain and attempt to minimize and control her pain, both on a regular schedule and as needed by the resident. The fact that Resident 3’s doctor had not specifically ordered pain medication be administered during certain procedures does not excuse Petitioner from the obligation to administer pain medication when the resident needed it. The facility’s failure to document the administration of pain medication or the efficacy of that medication made it easier for facility staff to “become complacent.” Id. at 25.

Based on the record, it is evident that Resident 3 experienced pain for which she required medication, but despite orders from her physician to provide routine, timed pain medication administration, as well as additional medication as needed, Petitioner failed on numerous occasions to administer either, resulting in a failure to deliver necessary

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care and services. Petitioner has failed to rebut CMS’ prima facie showing that Petitioner violated 42 C.F.R. § 483.25 with respect to Resident 3.

3. Petitioner violated 42 C.F.R. § 483.25 with respect to Resident 17.

Petitioner contends that its staff carried out treatment orders for Resident 17 regarding dressing changes, P. Closing Br. at 17, but the record does not support this position. Resident 17’s November 20, 2013 care plan indicated that she had venous-related pressure ulcers on her heels.9  CMS Ex. 5 at 33. The care plan provided the following interventions for Resident 17’s heel: (1) perform the ordered treatments and report to her physician if there was no improvement in two weeks; and (2) monitor the affected areas for increased breakdown and signs and symptoms of infection, and report any changes to her physician. Id. As reflected in her January 2014 physician’s orders, her doctor ordered staff to clean the wounds on Resident 17’s heels Monday, Wednesday, and Friday, and as needed due to dislodgement and/or soilage of dressing. CMS Ex. 10 at 57.

However, the survey revealed the facility failed to follow those orders. Surveyor Onyebuchi observed on January 8, 2014 at 4:40 p.m. that Resident 17 had dressings on her heels dated January 6, 2014. She observed that the “dressing on the right heel area . . . was saturated with black, red and serious [sic] drainage.” Surveyor Onyebuchi noted that the bed’s mattress covering “was saturated [with] dried red drainage from the dressing.” CMS Ex. 29 at 8. Resident 17 told the surveyor that the physician had not seen her, but the wound care nurse had dressed her wound on January 6, 2014. See CMS Ex. 11 at 6. Resident 17 stated that the nurse only changed her dressing three times a week. When the surveyor asked Resident 17 if her dressings were changed when they were soiled, both the CNA who was in the room and Resident 17 confirmed the dressings were only changed on the scheduled days. CMS Ex. 5 at 34; CMS Ex. 29 at 8.

Petitioner does not challenge Surveyor Onyebuchi’s testimony, nor does it dispute the statements made by Resident 17 or the CNA. But even if the facility had argued it complied with physician’s orders, I note that the requirement to change Resident 17’s wound dressings three times a week was the floor for frequency of treatment; her physician required the facility to change the dressings as needed, when there was dislodgement or soiled dressings. CMS Ex. 10 at 57. The state of affairs discovered by the surveyor on January 8, 2014 clearly failed to meet this expectation, given that drainage had not only saturated Resident 17’s heel dressing but the underlying mattress covering. CMS Ex. 29 at 8.

In light of the foregoing, I find that Petitioner’s staff failed to provide wound care to Resident 17 as required by her care plan and physician’s orders, and this failure deprived her of necessary care and services. I thus conclude that CMS established a prima facie

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case that Petitioner violated 42 C.F.R. § 483.25 with respect to Resident 17, and that Petitioner has failed to rebut CMS’ prima facie case.

C. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(c) (Tag F314) because Petitioner failed to adequately treat Resident 11’s pressure sores in order to promote healing and prevent infections.

Under the statute and the “quality of care” regulation, each resident must receive, and the facility must provide, necessary care and services. Act § 1819(b); 42 C.F.R. § 483.25. To this end, the facility must, among other requirements, ensure that a resident who enters the facility without pressure sores does not develop them unless his/her clinical condition shows that they were unavoidable, based on the resident’s comprehensive assessment. 42 C.F.R. § 483.25(c)(1). If the resident has pressure sores, the facility must ensure that he/she receives the treatment and services necessary to promote healing, prevent infection, and prevent new sores from developing. 42 C.F.R. § 483.25(c)(2).

This requirement does not impose strict liability on a facility whenever a resident develops pressure sores. Instead, 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 so, the fact that a resident develops sores does not demonstrate a deficiency. But if the evidence establishes that the facility fell short of taking all necessary precautions, it has failed to meet the demands of the regulation. Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 13-14 (2010), 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).

Here, Resident 11 had been readmitted to the facility with an unstageable10  pressure ulcer on her medial thigh and sacral areas; her care plan, established on October 8, 2013, her date of admission, provided specific measures to address the sore. CMS Ex. 5 at 46. CMS appears to contend Petitioner failed to take the necessary measures to prevent Resident 11’s condition from worsening. CMS Pre-hrg. Br. at 10-11; CMS Closing Br. at 7-8. Petitioner responds only that Resident 11’s condition was clinically unavoidable due to her diagnoses of spinal stenosis and incontinence. P. Pre-hrg. Br. at 21; P. Closing Br. at 20-21.

I find Petitioner’s bald assertion unsupported by the record, which documents deterioration stemming from inconsistent compliance with the resident’s care plan and doctors’ orders. Resident 11 was readmitted to the facility on October 8, 2013. CMS Ex.

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9 at 7. Her October 2013 MDS assessment documented a Stage 4 pressure sore at the time of her readmission measuring 5 cm (length) x 1.7 cm (width) and 3 cm (depth) with slough. Id. at 14.

To address her unstageable pressure sore and other sores on her left medial thigh and left heel, Resident 11’s care plan included the following measures: using pressure-reducing devices on her bed and chair; developing a turning/repositioning plan with her input; providing wound care as ordered by her physician; two-person assistance with repositioning to avoid skin friction/shearing; referral to a dietician to evaluate nutritional status; obtaining Albumin levels to assess protein; weekly evaluation of wound healing; daily observation of skin with routine care; monitoring for changes in skin status for worsening of pressure ulcer and physician notification if needed; and referral for evaluation by a wound specialist. Id. at 100, 132-33, 160.

But by late November 2013, Resident 11’s physician ordered that she remain in bed and off her back at all times. CMS Ex. 9 at 134. A December 18, 2013 weekly pressure sore healing record noted that Resident 11’s sacral/coccyx pressure sore was unstageable. The pressure sore measured 7.2 cm (length) x 3 cm (width) x .9 cm (depth) and had a large amount of serous drainage, with black/brown slough in the wound bed. Id. at 113. On December 18, 2013, her physician ordered more treatment for the pressure sores on her medial thigh, coccyx, and left heel as follows: clean with wound cleaner, pat dry, apply silver alginate and cover with a dressing (foam dressing for the medial thigh and coccyx wounds; dry dressing secured with kerlix for the heel wound). Id. at 134.

There is little doubt the condition of Resident 11’s pressure sores deteriorated despite the additional measures ordered by her physician. The findings of the state agency surveyor strongly suggest this deterioration resulted from the facility’s failure to comply with the measures contained in the resident’s care plan and physician’s orders, which had been in effect for several months.

On January 6, 2014, despite physician orders to the contrary, Surveyor Onyebuchi observed Resident 11 “lying flat on her back in bed” at 9:25 a.m. CMS Ex. 29 at 14. On January 7, 2014, at 9:45 a.m., while observing staff provide incontinence care to Resident 11, Surveyor Onyebuchi noticed no dressing present on the resident’s coccyx pressure sore. A facility CNA told the surveyor she had taken the dressing off earlier because it had feces on it. The surveyor asked the CNA whether she had informed a nurse that she had taken off the dressing, and the CNA stated she had not. Surveyor Onyebuchi informed the facility’s Director of Nursing (DON) and ADON of her observations of Resident 11’s incontinence care and advised them Resident 11 had no dressing on her coccyx pressure sore. The DON “confirmed that the wound needed to have a dressing at all times to prevent infection and to keep feces from getting into the wound.” Id. at 15.

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At 5:10 p.m. on January 7, 2014, Surveyor Onyebuchi observed a wound care nurse providing treatment to Resident 11, who was again on her back in the bed. The surveyor noted that Resident 11 still had no dressing on her coccyx pressure sore. The nurse stated that no one on Petitioner’s staff had reported to her that the dressing was off or had been removed. Id.

On January 8, 2014 at 12:45 p.m., Surveyor Onyebuchi observed the wound care physician, assisted by the wound care nurse and a CNA, assess Resident 11’s pressure sores. There was still no dressing on the resident’s coccyx pressure sore. The physician noted the pressure sore exhibited tunneling,11  which the wound care nurse had not identified. Id. The wound care physician evaluated Resident 11’s sacral/coccyx pressure sore, measuring it to be 5 cm x 3.5 cm x 1.8 cm with 3.2 cm of tunneling, and concluded it was a Stage IV pressure ulcer. CMS Ex. 9 at 115. By contrast, a weekly pressure ulcer healing record conducted that same day by facility staff failed to document pressure sore measurements or document tunneling in the wound. CMS Ex. 9 at 114; CMS Ex. 29 at 15.

The disturbing and persistent level of noncompliance observed by the surveyor during her 4-day visit does not suggest Petitioner was otherwise committed to doing everything it could to promote healing and prevent new sores or infection with regard to Resident 11’s care. This evidence clearly establishes a prima facie case that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(c).

In response, Petitioner offered no evidence or argument in rebuttal to show it had provided all necessary treatment or services to Resident 11. It does not argue that the conditions observed by the surveyor in January 2014 were a fluke. It cites to no documentation in the record of turning and repositioning by staff, or the consistent use of positioning and pressure-relieving devices. Instead, it argues Resident 11’s pressure sores inevitably deteriorated simply because of her diagnoses. But the fact that Resident 11 was at risk for developing pressure sores due to her diagnoses does not lead to the conclusion that such development was inevitable.

Having failed to demonstrate it complied with the resident’s care plan or her doctor’s orders, Petitioner is in no position to claim the deterioration of Resident 11’s pressure sores was unavoidable. I conclude that CMS made a prima facie showing of a violation of 42 C.F.R. § 483.25(c) that caused actual harm to Resident 11, and that Petitioner has failed to rebut CMS’ prima facie case.

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D. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(i) (Tag F325) because Petitioner failed to ensure that Resident 4 maintained acceptable parameters of nutritional status.

The Secretary’s regulations require a facility, based on a comprehensive assessment of a resident, to maintain “acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident’s clinical condition demonstrates that this is not possible” and ensure a resident receives a “therapeutic diet” in the event of a nutritional issue. 42 C.F.R. § 483.25(i).

Relying on the SOD, CMS argues Petitioner did not substantially comply with 42 C.F.R. § 483.25(i) with respect to Resident 4. CMS Pre-hrg. Br. at 22. The SOD alleges that Petitioner’s staff failed to implement the dietitian’s recommendations for Resident 4 and offer supplements when she consumed less than 50% of her meals; as a result, Resident 4 lost approximately 18.4 pounds after November 15, 2013, placing her at greater risk for debility, developing pressure sores, and deterioration. CMS Ex. 5 at 60.

In response, Petitioner asserts that Resident 4 did not experience clinically significant weight loss because in a one-month period, she exhibited less than 5% weight loss, which is not considered clinically significant according to SOM guidelines. P. Closing Br. at 21-22.

The facility recorded Resident 4’s weights on a Weight Change History Form. This form reflects the following entries:

October 5, 2013                  118.40 pounds

November 5, 2013              113 pounds

December 5, 2013              113.20 pounds

CMS Ex. 7 at 91; CMS Ex. 5 at 61. There are also handwritten notations on the form stating: “weight for 1/13 – 108.00 with reweigh 100.00 – 1-8-14.” CMS Ex. 7 at 91. Because Petitioner had previously recorded Resident 4’s body weight the preceding three months on the fifth day, I conclude the “weight for 1/13” refers to Resident 4’s weight on or around January 5, 2014.12  Id. The second handwritten notation clearly indicates that during a re-weighing conducted on January 8, 2014, Resident 4 weighed 100 pounds. Id.

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The record therefore shows that between November 5, 2013 and January 8, 2014, Resident 4 lost 13 pounds, over 11% of her body weight. This does not support Petitioner’s contention that Resident 4 did not suffer significant weight loss, as that term is understood in the SOM and by Petitioner’s own weight loss policy, which defines significant weight loss to be 5% in 30 days, 7.5% in 90 days, or 10% in 180 days.13  CMS Ex. 7 at 142. Extrapolating from these intervals, I conclude that losing over 11% in body weight in a 60-day period, as occurred here, constituted significant weight loss.

Even allowing that much of this weight loss occurred in the weeks just before the January 2014 survey, the facility was put on ample notice that Resident 4 had nutritional issues that required closer scrutiny before then. On November 15, 2013, in response to Resident 4 losing 5.4 pounds in a month, her dietician recommended starting a different dietary supplement at 90 cc three times a day for thirty days to increase her weight. CMS Ex. 5 at 61; CMS Ex. 7 at 24. However, the facility never implemented this recommendation until almost two months later, and only then because of the surveyor’s intervention.

This is inconsistent with the facility’s own weight loss management policy, which required weekly documentation during significant weight loss, offering alternatives to residents who did not eat served meals, and offering dietary supplements to residents who consumed 50% or less of a meal. CMS Ex. 7 at 142.

Petitioner failed to comply with its own policy in other ways as well. Resident 4’s meal intake varied, with the records showing that at times she consumed 50% or less of her meals during November 2013, December 2013, and early January 2014. However, while Petitioner’s weight loss policy instructed staff to offer dietary supplements to residents who ate 50% or less of each meal, there is no evidence that Resident 4 was ever offered any supplements. Indeed, according to the surveyor, members of staff admitted that they could not recall ever giving Resident 4 supplements. CMS Ex. 5 at 63, 64-65. Similarly, the facility’s policy required documentation of dietary intake after each meal, see CMS Ex. 7 at 142, but here, Petitioner inconsistently documented Resident 4’s meal intake, with no entries for numerous meals during November and December 2013, and January 1-8, 2014. CMS Ex. 7 at 88-90.

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It was incumbent on Petitioner to ensure that Resident 4 maintained acceptable parameters of nutritional status and ensure that she received a therapeutic diet to address any nutritional issues. See Carrington Place of Muscatine, DAB No. 2321 at 9 (2010) (“[A skilled nursing facility] may be noncompliant with section 483.25(i)(1) if, for example, it fails to identify and assess the nutritional needs of a resident found to be at risk for malnutrition, or if it fails to implement prescribed interventions to minimize that risk.”).

By failing to immediately implement the dietician’s recommendations to address Resident 4’s weight loss, adequately document her meal intake, and offer her supplements when she did not eat enough, Petitioner failed to take reasonable and timely actions to ensure that Resident 4’s nutrition needs were adequately met. Petitioner has offered no evidence that Resident 4’s weight loss was unavoidable due to a clinical condition. I therefore conclude CMS established a prima facie case that Petitioner violated 42 C.F.R. § 483.25(i) with respect to Resident 4, and that Petitioner has failed to rebut CMS’ prima facie case.

IV. Discussion - January 27, 2014 Survey

The alleged deficiencies cited at the January 27, 2014 survey all center on the care Petitioner’s staff gave to Resident 1 on January 20, 2014. The SOD sets forth the following factual allegations:

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CMS Ex. 19, at 2-3, 32, 61, and 87. The SOD states that immediate jeopardy was identified on January 24, 2014 and removed on January 27, 2014. The SOD alleged that Petitioner’s failures could affect all the residents by placing them at risk for not receiving CPR immediately and correctly, and further life-saving treatments as desired, which could result in death. CMS Ex. 19 at 3.

Resident 1, an 83-year-old man, was admitted to Petitioner’s facility on March 8, 2013. CMS Ex. 21 at 1. Resident 1 had multiple medical conditions, which included cerebrovascular accident, hemiplegia, dysphagia, aphasia, heart disease, muscular disuse atrophy, hyperlipidemia, and depression. CMS Ex. 21 at 1, 7. Resident 1’s admission face sheet indicates that he was “full code.” Id. at 1. His March 25, 2013 Minimum Data Set assessment indicated he was moderately cognitively impaired and required extensive assistance with bed mobility, transfers, and toileting. Resident 1 was totally dependent on staff for locomotion, dressing, eating, personal hygiene care, and bathing. The MDS noted Resident 1 had impairments of his upper (one side) and lower extremities (both sides) and used a wheelchair. Id. at 5-7, 10.

Resident 1’s March 20, 2013 care plan indicated he had swallowing problems, was at risk for aspiration, dehydration, and infection in connection with his tube feedings, and was to receive nothing by mouth. Id. at 37, 40. His December 15, 2013 care plan indicated at top, “ADVANCE DIRECTIVES: FULL CODE.” Id. at 11-26 (emphasis in original). January 2014 orders from his physician also noted Resident 1 was “Full Code.” Id. at 48.

A. Events of January 20, 2014

The events of January 2014 pertaining to Resident 1 are largely undisputed. Surveyor Ekpenyong’s declaration provides that on the morning of January 20, 2014, CNA E was feeding Resident 1 breakfast. Resident 1 began to choke. The CNA stopped feeding him and took him back to his room. She looked for charge nurse Valerie Witcher, but could not find her. The CNA told ADON Teresa Stephens that Resident 1 had choked and had swallowing problems while eating. CMS Ex. 30 at 6-7.

In an unsworn and unsigned statement,14  ADON Stephens stated the CNA told her that Resident 1 “had been coughing at breakfast.” P. Ex. 10 at 1. She claims she reported the incident to LVN Witcher. Id.

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LVN Witcher assessed Resident 1 and noted a “non-productive cough” and runny nose. According to LVN Witcher, the CNA told her that Resident 1 exhibited a cough and difficulty swallowing while being fed. P. Ex. 7 at 3-5; P. Ex. 10 at 6; CMS Ex. 21 at 66, 71-73. On the assessment form, LVN Witcher noted Resident 1 was “Full code.” P. Ex. 7 at 5; CMS Ex. 21 at 72. She contacted the nurse practitioner, who declined to order a chest x-ray, but ordered Mucinex. P. Ex. 7 at 3; P. Ex. 10 at 6; CMS Ex. 21 at 71. When interviewed by Surveyor Ekpenyong, the nurse practitioner stated that LVN Witcher had not informed him that the resident had choked or coughed during his meal. CMS Ex. 30 at 8.

During lunch, when a facility CNA was attempting to feed Resident 1 his pureed meal, he choked again. The CNA stopped feeding him and took Resident 1 to his room. She informed LVN Witcher that Resident 1 had choked for a second time. Id. at 7.

At approximately 5:20 p.m., CNA Daphne Miller took Resident 1 to the dining room for dinner. At the time, he was alert and fine. CMS Ex. 19 at 8. At around 6:25 to 6:30 p.m., CNA Miller asked dining room nurse LVN Albert Tillman to check on Resident 1. LVN Tillman observed that his eyes were fixed, his jaw was rigid, and his mouth was open. CMS Ex. 20 at 1; P. Ex. 10 at 4. LVN Tillman could not find a pulse, and Resident 1 was not breathing. CMS Ex. 20 at 1; CMS Ex. 21 at 3; P. Ex. 10 at 2.

LVN Tillman wheeled Resident 1 out of the dining room and headed towards his room. LVN Tillman met Resident 1’s charge nurse, LVN Johnson-Salmon, in the hall, and told her there were “no signs of life.” LVN Tillman wheeled Resident 1 to his room. LVN Johnson-Salmon checked Resident 1’s code status and told LVN Tillman to call 911. CMS Ex. 20; CMS Ex. 21 at 3; P. Ex. 10 at 2. LVN Johnson-Salmon and CNA Daphne Miller transferred Resident 1 to his bed, and then CNA Miller went to look for a backboard. CMS Ex. 21 at 3; P. Ex. 10 at 4. LVN Johnson-Salmon declared she began chest compressions on Resident 1 without a backboard. CMS Ex. 30 at 6.

CNA Miller was unable to find a backboard and went back to the room. She and LVN Johnson-Salmon transferred Resident 1 from his bed to the floor, and LVN Johnson-Salmon began CPR. P. Ex. 7 at 1; P. Ex. 10 at 3, 4. When interviewed by the surveyor, LVN Johnson-Salmon stated that she performed five chest compressions with no breaths.15  After each cycle, LVN Johnson-Salmon stopped to check for the paramedics. CMS Ex. 19 at 12; CMS Ex. 30 at 6.

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LVN Johnson-Salmon stopped chest compressions to open the door to Resident 1’s room when the paramedics arrived. CMS Ex. 20 at 2. EMS was dispatched at 6:24 p.m. and arrived at Petitioner’s facility at 6:26 p.m. The EMS report states that Resident 1 was “lying in nursing home room with no active CPR in progress by nursing home staff. [Patient] unresponsive and apneic. Nursing home staff stated that [patient] had become unresponsive in lunchroom . . . they moved [patient] to [patient’s] room and initiated CPR with active downtown [sic] to EMS arrival 10 minutes.” CMS Ex. 19 at 9. The paramedics unsuccessfully attempted to resuscitate Resident 1 and transported him to the hospital. P. Ex. 10 at 1. Resident 1 expired at 7:07 p.m. P. Ex. 7 at 1. Petitioner reported the incident involving Resident 1 to the state agency and began an investigation. P. Closing Br. at 9.

On January 21, 2014, Petitioner disciplined LVN Tillman, LVN Johnson-Salmon, CNA Miller, and LVN Witcher, giving each of them a “Notice of Warning” regarding the events of January 20, 2014. CMS Ex. 25 at 4-13. Petitioner cited LVN Tillman for negligence and imposed a two-day suspension for “fail[ing] to assist fellow nurse [with] a resident who was found unresponsive.” Id. at 5, 11. Petitioner also cited LVN Johnson-Salmon for negligence and imposed a two-day suspension for “fail[ing] to adequately render CPR to the patient” and not using an “Ambu bag.” Id. at 12. Petitioner imposed a three-day suspension on CNA Miller for “fail[ing] to report change of condition to charge nurse.” Id. at 4. It also cited LVN Witcher for negligence and imposed a two-day suspension for “fail[ing] to adequately report change in condition to NP/PA.” Id. at 13.

B. Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(c) (Tags F224 and F226) because Petitioner did not implement its policy and procedures prohibiting neglect, including its CPR policy, upon discovering that Resident 1 was unresponsive.

The citations under F224 and F226 are based on a violation of 42 C.F.R. § 483.13(c). Because the allegations under the two citations are identical, I address these deficiencies together. CMS Ex. 19 at 2, 31; P. Pre-hrg. Br. at 13.

1. Petitioner’s claim that CMS could not cite its neglect and failure to implement its own policy under Tags F224 and F226 is without merit.

Petitioner first argues the state agency improperly relied on Tag F224 to allege generalized neglect and failure to implement policy, asserting, “it appears that the surveyors have attempted to use F224 to support a ‘generalized allegation of neglect’ and to support the premise that this one isolated allegation of neglect constitutes an overall failure by Park Manor to implement its neglect prohibition policies.” P. Closing Br. at 3-4, citing Heron Pointe Health & Rehab. Ctr., DAB CR1401 (2006).

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Petitioner’s reliance on Heron Pointe is misplaced; the Board has repeatedly rejected this same argument and pointedly declined to adopt the reasoning found in Heron Pointe upon which Petitioner relies. See Avalon Place Trinity, DAB No. 2819 at 12-13 (2017); W. Texas LTC Partners, Inc., DAB No. 2652 at 9 (2015); Avalon Place Kirbyville, DAB No. 2569 at 11-12 (2014).16  In Avalon Place Kirbyville, the Board found that the facility violated 42 C.F.R. § 483.13(c) when its staff failed to follow the facility’s policies after finding a resident who was not breathing, even though the incident involved just one resident. The Board explained that “[t]he focus, thus, is not simply on the number or nature of the instances of neglect . . . but on whether the facts found by the ALJ surrounding such instance(s) demonstrate an underlying breakdown in the facility’s implementation of the provisions of an anti-neglect policy.” Avalon Place Kirbyville, DAB No. 2569 at 12, citing Oceanside Nursing & Rehab. Ctr., DAB No. 2382 at 11 (2011); Columbus Nursing & Rehab Ctr., DAB No. 2247 at 27 (2009).

The Board therefore will consider circumstances surrounding an incident of neglect to determine whether they “demonstrate a systemic problem in implementing policies and procedures” intended to prevent neglect. Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 6 (2016), quoting Columbus Nursing & Rehab. Ctr., DAB No. 2247 at 27. The Board observed that relevant factors include “how many staff members were involved in incidents of neglect and whether staff members’ actions or inactions were directly contrary to directions in care policies adopted by the facility.” Southpark Meadows Nursing, DAB No. 2703 at 6, quoting Hanover Hill Health Care Ctr., DAB No. 2507 at 9-10 (2013).

Ultimately, as the Board observed in Avalon Place Kirbyville, the primary inquiry I must make is whether the facts before me “demonstrate an underlying breakdown in the facility’s implementation of the provisions of an anti-neglect policy.” DAB No. 2569

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at 12. Here, as explained more fully below, the actions of Petitioner’s staff were directly contrary to the directives set forth in Petitioner’s CPR policy and clearly establish an underlying breakdown in the facility’s implementation of its CPR policy occurred.

2. Petitioner’s claim that the state agency relied on information derived from its quality assurance investigation to make deficiency findings is without merit.

Petitioner also claims the state agency was precluded from citing deficiencies based on problems already identified by its own Quality Assurance Committee prior to the survey. P. Closing Br. at 9-11, citing 42 C.F.R. § 483.75(o).17  The relevant subsection of the regulation, 42 C.F.R. § 483.75(o)(4), states “[g]ood faith attempts by the [quality assurance] committee to identify and correct quality deficiencies will not be used as a basis for sanctions.” The SOM guidelines upon which Petitioner also rely explain “[t]he intent of § 483.75(h), (i) is to: Ensure information obtained from QAA [Quality Assurance and Assessment] committee documents that is related to the committee’s good faith attempt to identify and correct quality deficiencies are not used by surveyors to identify additional concerns not previously identified during the survey.” SOM, App. PP at 621. The guidelines provide further that “[i]nformation gleaned from disclosure of QAA committee documents will not be used to cite new issues (not already identified by the survey team) or to expand the scope or severity of concerns identified on the current survey.” Id. at 622.

Petitioner’s reliance on 42 C.F.R. § 483.75(o) is misplaced because I find no evidence that the survey team used Quality Assurance Committee documents to “identify additional concerns not previously identified during the survey.” Surveyor Ekpenyong, who conducted the January 27, 2014 survey, was responsible for the deficiency findings set forth under Tags F224, F226, F281, and F309. In her declaration, the surveyor stated that she interviewed several members of staff and reviewed Resident 1’s medical record, nursing notes, the EMS report, and Petitioner’s own policies in arriving at her deficiency findings. CMS Ex. 30; see also CMS Ex. 19 at 2, 31, 60, and 87. None of these documents are identified as Quality Assurance Committee documents. Thus, contrary to Petitioner’s assertions, the state agency did not rely on any Quality Assurance Committee documents as the basis for its deficiency citations.

3. Petitioner failed to comply with its own neglect policy in violation of 42 C.F.R. § 483.13(c).

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Under 42 C.F.R. § 483.13(c), a “facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.” The regulations define “neglect” to mean the “failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.” 42 C.F.R. § 488.301. Accordingly, a facility may be noncompliant with section 483.13(c) if it “fail[s] to develop policies or procedures adequate to prevent neglect” or fails to implement its anti-neglect policy and procedures. Glenoaks Nursing Ctr., DAB No. 2522 at 14 (2013).

The evidence before me demonstrates Petitioner failed to implement its own policy to avoid resident neglect. Petitioner’s “Abuse Policy & Procedure,” dated from 2007, stated that Petitioner “will ensure a safe environment for residents by prohibiting physical and mental abuse including involuntary seclusion, neglect and misappropriation of resident property.” P. Ex. 3 at 2. The policy defines neglect as “includ[ing] but . . . not limited to the failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.” Id. at 3. Petitioner’s policy statement on “Recognizing Signs and Symptoms of Abuse/Neglect” lists the following among the examples of signs and symptoms: “[i]nadequate provision of care” and “[c]aregiver indifferent to resident’s personal care and needs.” Id. at 24.

Petitioner also had a policy titled “Emergency Procedure – Cardiopulmonary Resuscitation” (CPR policy) in effect in January 2014. P. Ex. 2. This policy also addresses the prohibition against neglect because it required staff to provide services to avoid physical harm, in this case, death. Petitioner’s CPR policy states:

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P. Ex. 2 at 1.

With respect to staff’s preparedness, Petitioner’s CPR policy required a CPR team for each shift be identified in case of a cardiac arrest event. The policy required designation of a team leader for each shift who would be responsible for coordinating rescue efforts and directing other team members. According to the policy, “[t]he CPR Team . . . shall include at least one registered nurse, one LPN/LVN and two CNAs, all of whom have received training and certification in CPR/BLS.” Id. at 1-2.

In describing the CPR procedures to follow, the policy states:

Id. at 2. The policy explains that “[d]elivering high-quality chest compressions is essential” and, directs, among other things, “[m]inimize interruptions in chest compressions.” Id. Lastly, the policy states that “[t]rained rescuers should also provide ventilations with a compression-ventilation ratio of 30:2.” Id.

The 2010 AHA CPR Guidelines, which are incorporated and adopted by Petitioner’s CPR policy (P. Ex. 2 at 2; P. Closing Br. at 7) are found in the record at P. Ex. 4. They state that:

Chest compressions are an especially critical component of CPR because perfusion during CPR depends on these compressions. Therefore, chest compressions should be the highest priority and the initial action when starting CPR in the

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adult victim of sudden cardiac arrest. . . . High-quality CPR is important not only at the onset but throughout the course of resuscitation.

P. Ex. 4 at 2.

The AHA Guidelines further state:

Effective chest compressions are essential for providing blood flow during CPR. For this reason all patients in cardiac arrest should receive chest compressions. . . . [D]elays in, and interruptions of, chest compressions should be minimized throughout the entire resuscitation. Moreover, chest compressions can be started almost immediately, while positioning the head, achieving a seal for mouth-to-mouth rescue breathing, and getting a bag-mask apparatus for rescue breathing all take time.

P. Ex. 4 at 4-5. Like the facility’s own CPR policy, the AHA guidelines note that the ratio of compressions to ventilations (rescue breaths) should be 30 chest compressions to 2 ventilations. Id. at 5, 6.

Petitioner also had a separate, undated policy titled “Emergencies.” This policy provides that “[r]esidents will be provided emergency medical treatment as necessary.” Among other things, the policy stated, “[s]hould a resident require emergency medical treatment during recreational activities or programs, immediate notification of the charge nurse must be made.” P. Ex. 2 at 3.

CMS argues that Petitioner’s staff violated the above policies by failing to immediately initiate CPR on Resident 1, and, even after CPR was started, failing to administer it properly. CMS Closing Br. at 17-19. CMS specifies that chest compressions were interrupted and rescue breaths were not administered, in violation of Petitioner’s CPR policy. Id.

The evidence of record supports this contention. First, facility staff failed to immediately initiate CPR, as required by the facility’s policy. P. Ex. 2 at 1. LVN Tillman found Resident 1 not breathing and without a pulse while seated for dinner around 6:25 to 6:30 p.m. on January 20, 2014. But instead of starting CPR on Resident 1, LVN Tillman wheeled Resident 1 from the dining room back to the resident’s room and handed him over to Resident 1’s charge nurse, Ms. Johnson-Salmon, who also failed to initiate CPR.

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Instead, Ms. Johnson-Salmon and a facility CNA transferred Resident 1 to his bed, at which time Ms. Johnson-Salmon finally began chest compressions on Resident 1.

Petitioner attempts to justify this delay, arguing LVN Tillman “was not Resident 1’s usual nurse,” that he “did not know Resident 1’s code status,” and that “it would not have been safe or appropriate” for him to begin CPR in the dining room in front of the other residents. P. Closing Br. at 6. I am unpersuaded by these excuses. Petitioner has offered no legitimate reason to justify LVN Tillman’s failure to act when he found Resident 1 nonresponsive and without a pulse. Petitioner’s CPR policy does not state only a staff member assigned to the resident could perform CPR on that resident. In fact, the policy contemplates any “licensed staff member who is certified in CPR . . . shall initiate CPR” and that anyone, “trained or not, should provide chest compressions to victims of cardiac arrest.” P. Ex. 2 at 1-2. Thus, LVN Tillman was required by Petitioner’s policy, at a minimum, to begin chest compressions to Resident 1.

Similarly, Petitioner has offered no adequate explanation why LVN Tillman did not immediately initiate CPR upon discovering Resident 1 in the dining room, rather than wasting precious minutes wheeling Resident 1 back to his room. Petitioner’s assertion that LVN Tillman did not know Resident 1’s code status is also unpersuasive, as the facility’s policy required its staff to initiate CPR unless they knew the resident had an order not to resuscitate. Id. at 1. In other words, if LVN Tillman was unaware of Resident 1’s code status, as Petitioner contends, then the facility’s CPR policy obligated him to begin CPR.

It is also evident that once facility staff finally initiated CPR on Resident 1, they did not do so competently. Contrary to the directives of Petitioner’s CPR policy, LVN Johnson-Salmon interrupted her chest compressions and did not perform rescue breathing on Resident 1. CMS Ex. 19 at 12; CMS Ex. 30 at 6. In fact, LVN Johnson-Salmon stopped chest compressions when the paramedics arrived to open the door to Resident 1’s room. CMS Ex. 20 at 2. The paramedics’ report confirms that, when they arrived, Resident 1 was lying on the floor “with no active CPR in progress by nursing home staff.” CMS Ex. 19 at 9.

The AHA Guidelines, which are incorporated in Petitioner’s CPR policy, emphasize the critical importance of chest compressions and state, “delays in, and interruptions of, chest compressions should be minimized throughout the entire resuscitation.” P. Ex. 4 at 5. Petitioner’s own witness, Dr. R. Lynn Rea, testified that under Petitioner’s policy, chest compressions are “the most critical component of CPR” and should be performed first. P. Ex. 16 at 3. Dr. Rea’s testimony is consistent with Petitioner’s CPR policy and the AHA Guidelines, and supports CMS’ position that Petitioner’s staff failed to deliver CPR as required under the facility’s policy. By failing to administer chest compressions

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continuously to Resident 1, without interruptions, LVN Johnson-Salmon did not follow Petitioner’s CPR policy or AHA Guidelines.

Petitioner concedes that rescue breathing was not performed, but argues that Resident 1 did not suffer any harm, and therefore, the failure to follow the facility’s own policy did not demonstrate neglect. Petitioner expands that “[r]escue breathing is of minor importance” and “not the focus of CPR as it once was due to the risk of over-ventilation” P. Ex. 16 at 3; P. Closing Br. at 15. This may be true, but Petitioner had no way of knowing if Resident 1 could have benefited from rescue breathing. In any event, Petitioner’s own CPR policy required staff to deliver both chest compressions and rescue breaths to a victim of cardiac arrest. The policy provided for no exceptions. Given that staff failed to perform rescue breathing on Resident 1, they violated the explicit directives of Petitioner’s CPR policy. There is no basis in the record for me to assume no neglect occurred where Petitioner did not bother to follow its own policy.

CMS also argues Petitioner neglected Resident 1 when its staff failed to convey a change in Resident 1’s condition to his treater, namely coughing and choking earlier in the day prior to the cardiac event. CMS Closing Br. at 16-17. CMS characterizes this as a significant change in condition that invoked an obligation to notify the resident’s attending physician under the facility’s notification policy pertaining to changes in a resident’s condition or status. Id. As CMS noted, a significant change is defined as “a condition that will not resolve itself without intervention.” Id. at 16, citing CMS Ex. 23 at 1.

I find a significant change occurred, and that Petitioner did not adequately notify Resident 1’s attending treater. The record does not support a finding that Resident 1’s condition would have resolved itself – he was unable to eat either breakfast or lunch without choking. CMS Ex. 19 at 4-5. Two facility employees thought he looked sick and “did not look good.” Id. at 6. Staff eventually notified Resident 1’s charge nurse, LVN Witcher, who listened to Resident 1’s lungs and noted a non-productive cough with congestion. P. Ex. 7 at 3-5; P. Ex. 10 at 6. LVN Witcher then notified Resident 1’s on-call nurse practitioner and relayed her findings, and requested the nurse practitioner order a chest X-ray and Mucinex for the cough. P. Ex. 7 at 3; P. Ex. 10 at 6.

However, the attending nurse practitioner stated she prescribed Mucinex because she was not aware of Resident 1’s coughing during meals, which presumably affected her assessment of Resident 1’s symptoms. CMS Ex. 30 at 8. Petitioner does not rebut the nurse practitioner’s statement or suggest any reason I should accord it less credibility. Therefore, I conclude that by failing to fully inform and involve Resident 1’s treater after a significant change occurred, Petitioner failed to comply with 42 C.F.R. § 483.13(c).

Finally, the failure to act by Petitioner’s staff in accordance with the facility’s policies and procedures was underscored by the fact that LVN Tillman, LVN Witcher, LVN

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Johnson-Salmon, and CNA Miller were all cited for negligence and failure to report a change in condition and received suspensions. LVN Tillman, LVN Johnson-Salmon, and CNA Miller were disciplined in connection with their failure to render CPR immediately to Resident 1, while LVN Witcher was disciplined for failing to report Resident 1’s change in condition to the nurse practitioner on the morning of January 20, 2014.

Accordingly, I conclude that Petitioner neglected Resident 1 when its staff failed to immediately perform CPR on him when he was found nonresponsive, and then, upon performing CPR, failed to administer it correctly. Additionally, Petitioner neglected Resident 1 when its staff failed to notify his on-call nurse practitioner that he had exhibited a change in condition manifested by choking and/or coughing while being fed at breakfast. Petitioner’s staff’s actions with respect to Resident 1 thus violated the facility’s anti-neglect and CPR policies and establish that an underlying breakdown occurred in Petitioner’s implementation of these policies. Accordingly, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.13(c) (Tags F224 and 226).

C. Petitioner was not in substantial compliance with 42 C.F.R. § 483.20(k)(3)(i) (Tag F281) because it failed to ensure its staff followed its anti-neglect, notification, and CPR policies.

The regulation at 42 C.F.R. § 483.20(k)(3)(i) provides that “[t]he services provided or arranged by the facility must . . . [m]eet professional standards of quality.” According to the Board, “it is ‘reasonable to presume’ that [a facility’s own] policies reflect professional standards of quality.” See Perry Cnty. Nursing Ctr., DAB No. 2555 at 9 (2014), quoting Sheridan Nursing Care Ctr., DAB No. 2178 at 32 (2008). Further, the Board has made clear that a facility “acts through its staff and cannot disown the consequences of the actions of its employee.” Gateway Nursing Ctr., DAB No. 2283 at 8 (2009).

In the SOD, the allegations of Petitioner’s noncompliance with 42 C.F.R. § 483.20(k)(3)(i) are based on the same facts relating to Resident 1 discussed above regarding the violation of 42 C.F.R. § 483.13(c) (Tags F224 and F226). CMS Ex. 19 at 60-86. I have found that Petitioner’s staff failed to implement the facility’s own anti-neglect, notification, and CPR policies with respect to Resident 1. I presume that Petitioner’s policies reflect professional standards of quality. See Perry Cnty., DAB No. 2555 at 9. Therefore, Petitioner’s staff’s failure to follow its anti-neglect, notification, and CPR policies demonstrates that Petitioner failed to ensure the services it provided to its residents met professional standards of quality. Accordingly, I conclude that Petitioner was not in substantial compliance with § 483.20(k)(3)(i).

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D. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25 (Tag F309) because Petitioner failed to provide the necessary care and services to Resident 1 in order to attain or maintain his highest physical well-being in accordance with his care plan.

In the SOD, the allegations of Petitioner’s noncompliance with 42 C.F.R. § 483.25 are based on the same facts relating to Resident 1 discussed above regarding the violations of 42 C.F.R. §§ 483.13(c) and 483.20(k)(3)(i). CMS Ex. 19 at 87-116.

In arguing that there is no basis for a citation under 42 C.F.R. § 483.25, Petitioner contends that neither Resident 1’s MDS nor his care plan indicated that CPR was “indicated as a . . . need for” him, so Petitioner’s staff cannot be faulted for failing to provide this service. P. Closing Br. at 19, citing CMS Ex. 19 at 89 (SOD).18  Additionally, Petitioner argues that even if Resident 1’s MDS or care plan addressed CPR, its staff did not engage in any “deficient practice[s].” Id. Petitioner contends that its staff used their discretion to move Resident 1 to a “safe area” and then appropriately provided CPR “on a resident who, in all likelihood, was already deceased.” Id. at 19-20.

Because Resident 1 was “full code,” in the event he became unresponsive or suffered cardiac arrest, the “necessary care and services” he needed to attain or maintain his highest practicable physical well-being in accordance with his comprehensive assessment and plan of care included CPR, as set forth in his care plan and Petitioner’s CPR policy. See Avalon Place Kirbyville, DAB No. 2569 at 13. Petitioner failed to provide these emergency care services – its staff did not immediately start CPR on Resident 1 when he was found unresponsive, and failed to perform CPR correctly once it was started. Petitioner’s failures clearly establish that it violated 42 C.F.R. § 483.25.

I reject Petitioner’s argument that CPR was not a “service” or “need” outlined in Resident 1’s care plan. Resident 1 had a care plan dated December 15, 2013, which indicated at the top of each page, “ADVANCE DIRECTIVES: FULL CODE.” Resident 1’s record also contains a list of physician’s orders for January 2014 which indicated that Resident 1’s status was “Full Code.” CMS Ex. 21 at 11-26, 48. These documents on their face leave little doubt as to Resident 1’s code status. It is simply disingenuous for Petitioner to argue that Resident 1’s care plan was devoid of any indication that he was to be provided with CPR in the event of cardiac arrest.

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Moreover, although Petitioner claims that its staff were permitted under the AHA Guidelines to use their “discretion to move an individual to a ‘safe area’” first before starting CPR, Petitioner did not offer a specific citation to the AHA Guidelines for this assertion. I note that the AHA Guidelines, under “Recognition of Arrest (Box 1),” state that “[b]efore approaching a victim, the rescuer must ensure that the scene is safe and then check for response.” P. Ex. 4 at 6. It is unclear to me whether this is the text from the AHA Guidelines upon which Petitioner relies. Regardless, I find that Petitioner offered nothing to show that the dining room, albeit crowded, would not have been a safe or appropriate space for LVN Tillman or another staff person to immediately start performing CPR on Resident 1. At the very least, if facility staff really believed that the area was not a suitable place to start CFR, they could have quickly cleared out a space nearby and put him on the floor for CPR. However, it appears more likely that facility staff had already decided Resident 1 was beyond saving, and, rather than provide life-saving measures, simply wheeled him back to his room.

Petitioner’s expert witness, Dr. Rea, expressed his opinion that, “[i]n all likelihood, Resident #1 was already dead at the time Nurse Tillman observed him in the dining room. Even if Nurse Tillman or Nurse Salmon had started CPR a few seconds sooner, in reasonable medical probability, Resident 1’s ultimate outcome would not have changed.” P. Ex. 16 at 4. I note that Dr. Rea never examined Resident 1 personally, nor was he present when Resident 1 was found nonresponsive. Dr. Rea merely reviewed Resident 1’s medical records and staff statements regarding the incident. Id. at 2. Moreover, while Dr. Rea believed that the outcome would not have changed had CPR started “a few seconds sooner,” here the record shows the delay in performing CPR on Resident 1 stretched out over minutes, not seconds, spanning the time LVN Tillman first found him nonresponsive to when LVN Salmon-Johnson finally performed CPR on him in an incompetent manner.

Even if Dr. Rea’s opinion is correct and resuscitative efforts would not have proved successful with Resident 1, this did not relieve Petitioner’s staff of their obligation to provide him with the highest quality of care by immediately providing him with CPR when he was found to be nonresponsive. As the Board stated in John J. Kane Regional Center – Glen Hazel, DAB No. 2068 at 17 (2007),

The fact that a person may exhibit signs of death does not necessarily obviate the caregiver’s duty to provide CPR because one of CPR’s goals, according to the AHA Guidelines, is the reversal of clinical death, even though that outcome is achieved in only a minority of cases.

Petitioner’s own CPR policy stated that CPR should be initiated unless there is a DNR order for the resident or there are “obvious signs of irreversible death (e.g., rigor mortis).”

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P. Ex. 2 at 1. Petitioner neither alleged nor offered any evidence that Resident 1 exhibited any “obvious signs of irreversible death.”

Petitioner’s staff failed to immediately provide Resident 1, a full code resident, with CPR when he was found nonresponsive and then, after precious minutes had been wasted, performed CPR incorrectly. As a result, Petitioner failed to provide the necessary emergency care services to Resident 1 to allow him to attain or maintain the highest practicable physical well-being in accordance with his plan of care, in violation of 42 C.F.R. § 483.25. Additionally, Petitioner’s failure to report to the nurse practitioner that Resident 1 had choked and/or coughed while being fed is an instance of failing to report a change in his condition, and constitutes another instance where Petitioner failed to provide him with necessary care. Furthermore, as I previously concluded in discussing tags F224 and F226, Petitioner did not follow its own anti-neglect and CPR policies with respect to Resident 1, in violation of 42 C.F.R. § 483.13(c). The fact that Petitioner contravened its own policies also establishes that it was not in substantial compliance with 42 C.F.R. § 483.25.

E. The declaration of immediate jeopardy related to the noncompliance with 42 C.F.R. §§ 483.13(c); 483.20(k)(3)(i); and 483.25 was not clearly erroneous.

CMS alleges that Petitioner’s violations of 42 C.F.R. §§ 483.13(c); 483.20(k)(3)(i); and 483.25 was at the scope and severity level of “L,” constituting widespread immediate jeopardy to the health and safety of the facility’s residents. CMS alleges that the immediate jeopardy began January 20, 2014, and was abated on January 27, 2014. CMS Ex. 19 at 3, 32, 61, and 88; CMS Closing Br. at 2.

Under the regulations, “immediate jeopardy” refers to “a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301. The regulation does not require actual harm to a resident. Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012). I must uphold CMS’ 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 “clearly erroneous” standard imposes on facilities a heavy burden to show no immediate jeopardy, and the DAB 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), aff’d, Barbourville Nursing Home v. United States Dep’t of Health & Human Servs., 174 F. App’x 932 (6th Cir. 2006); see also, e.g., Easley v. Cromartie, 532 U.S. 234, 242 (2001) (“In applying [the clearly erroneous] standard, . . . a reviewing court must ask whether, ‘on the entire evidence,’ it is ‘left with the definite and firm conviction that a mistake has been committed.’”). Additionally,

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“[i]nadequate survey performance does not . . . [i]nvalidate documented deficiencies.” 42 C.F.R. § 488.318(b).

Petitioner argues that no immediate jeopardy existed, and that even if Petitioner was not in substantial compliance, it should not have been cited at scope and severity level “L,” but instead cited no higher than scope and severity level “D,” which refers to an isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm. P. Closing Br. at 24. Petitioner argues that because the citations involved only one resident and one incident, the “widespread” finding is not justified. Petitioner contends also that “[t]he resident in question was already deceased at the time the IJ was called” and “no future or prospective harm” to the other residents was identified by the surveyors. Petitioner claims further that prior to the survey, its Quality Assurance committee was proactively addressing the areas of concern. Id. at 23-24.

As discussed above, the evidence in this case supports a conclusion that Petitioner violated 42 C.F.R. §§ 483.13(c); 483.20(k)(3)(i); and 483.25. There is no doubt that Petitioner placed Resident 1 in immediate jeopardy. Upon finding Resident 1 nonresponsive in the dining room on January 20, 2014, Petitioner’s staff failed to provide him with immediate and proper life-saving measures, as required by the facility’s CPR policy. As a result, Petitioner’s staff put Resident 1 at risk of suffering serious harm, impairment, or death. Further, their delayed actions and incompetent performance of CPR on Resident 1 demonstrated a serious breakdown in a life or death situation and placed all of Petitioner’s residents in jeopardy. Facility staff clearly did not understand the urgent need to provide immediate and competent CPR when a situation arose requiring it. It was therefore highly likely that any resident who suffered cardiac arrest would be at risk of suffering serious harm at the hands of Petitioner’s staff, making the immediate jeopardy widespread in the facility. Based on the evidence, I am unable to conclude that CMS’ immediate jeopardy determination is clearly erroneous.

F. A per-instance civil money penalty of $2,000 is a reasonable enforcement remedy for Petitioner’s noncompliance with 42 C.F.R. § 483.25; a per-instance civil money penalty of $1,000 is a reasonable enforcement remedy for Petitioner’s noncompliance with 42 C.F.R § 483.25(c); and a per-instance civil money penalty of $2,000 is a reasonable enforcement remedy for Petitioner’s noncompliance with 42 C.F.R. § 483.25(i).

G. A civil money penalty of $7,650 per day from January 20 through 27, 2014; a civil money penalty of $1,000 per day from January 28, 2014 through February 13, 2014; and a denial of payment for new Medicare admissions from February 8 through February 13, 2014, are reasonable enforcement remedies.

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The Act authorizes the Secretary to impose enforcement remedies against skilled nursing facilities that are not in substantial compliance with the program participation requirements. 42 U.S.C. § 1395i-3(h)(2). The regulations specify the enforcement remedies that CMS may impose. 42 C.F.R. § 488.406. Among other remedies, CMS may impose a per-day civil money penalty for the number of days a skilled nursing facility is not in substantial compliance or a per-instance CMP for each instance of the skilled nursing facility’s noncompliance. 42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. § 488.430(a).19

A per-day civil money penalty may range from either $50 to $3,000 per day for less serious noncompliance, or $3,050 to $10,000 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents. 42 C.F.R. § 488.438(a)(1). There is only a single range of $1,000 to $10,000 for a per-instance civil money penalty. 42 C.F.R. § 488.438(a)(2). In addition to civil money penalties, CMS may also impose a denial of payment for new Medicare admissions when a facility is not in substantial compliance with program participation requirements. 42 C.F.R. §§ 488.406; 488.417(a).

In determining the reasonableness of the penalty amount imposed by CMS, I look to the factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). These factors include the seriousness of the deficiency, the facility’s compliance history, its financial condition, and its degree of culpability. 42 C.F.R. §§ 488.438(f) and 488.404.

Petitioner asserts civil money penalties are not warranted, claiming it has a “good track record” and that its “QA Committee had already identified potential areas of concern” before the survey had started. P. Closing Br. at 24.

However, CMS submitted Petitioner’s Certification and Survey Provider Enhanced Reports (CASPER) report, which includes survey findings for the period September 2009 through January 4, 2013.20  The report shows that Petitioner had prior noncompliance in 2010 under Tags F226 and F309 at the “H” scope and severity level. CMS Ex. 15 at 1. Thus, I do not find Petitioner’s claim of a “good track record” to merit a change in the penalty imposed.

Petitioner did not argue that its financial condition affects its ability to pay the civil money penalty. Unless a facility contends that a particular regulatory factor does not support the civil money penalty amount, an ALJ must sustain it. Coquina Ctr., DAB No. 1860 (2002).

Petitioner’s noncompliance in this case was very serious. As I have discussed, Petitioner provided deficient care to Residents 3, 4, 9, 11, and 17 in several areas – pain management, pressure sore treatment, and nutritional status – and caused actual harm to at least one of these residents. With respect to Resident 1, Petitioner’s staff failed to

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carry out the directives of its CPR policy, putting his life in immediate jeopardy. Petitioner’s staff not only delayed performing CPR on Resident 1, they also failed to perform it correctly once they started it. Petitioner’s failure to properly implement its CPR policy placed all of its residents at risk of serious harm, injury, or even death.

I find also that Petitioner was culpable for its staff’s failures to provide necessary care to its residents, as required by its policies and physician’s orders. With respect to Resident 1, it is noteworthy that facility management disciplined and suspended several members of its staff. The record shows also that Petitioner’s staff admitted to the surveyor that they did not comply with the facility’s policies or physician’s orders.

The per-instance civil money penalty amounts of $1,000, $2,000, and $2,000 are at the low-end of the per-instance penalty range. Based on my review of the regulatory factors, the per-instance civil money penalties are reasonable given the nature of the deficient practices underlying them.

CMS imposed a $7,650 per-day civil money penalty for each day of immediate jeopardy (January 20-27, 2014), which is in the mid to high range for a per-day civil money penalty ($3,050 - $10,000). 42 C.F.R. §§ 488.408(e)(1)(iii); 488.438(a)(1)(i). For the non-immediate jeopardy period (from January 28, 2014 through February 13, 2014), CMS imposed a $1,000 per-day civil money penalty, which is in the mid-range of the applicable penalty range ($50 - $3,000). 42 C.F.R. §§ 488.408(d)(1)(iii); 488.438(a)(1)(ii). Having considered the relevant factors, I conclude the civil money penalties are reasonable.

In addition to the civil money penalties, CMS imposed a denial of payment for new admissions from February 8 through February 13, 2014. I also conclude that the denial of payment for new admissions is a reasonable enforcement remedy, given the serious nature of the deficiencies established here.

Lastly, the burden of persuasion regarding the duration of noncompliance is Petitioner’s. Owensboro Place & Rehab. Ctr., DAB No. 2397 (2011). Petitioner has not made any arguments specifically regarding the duration of the period of immediate jeopardy. Petitioner has not met its burden to persuade me to find the facility returned to substantial compliance at any point earlier than the date determined by CMS.

IV. Conclusion

I affirm CMS’ determination that Petitioner was not in substantial compliance with the regulatory tags discussed above and conclude that the remedies CMS imposed on Petitioner are reasonable.

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• 1.CMS substantially revised and re-codified the regulations concerning skilled nursing facilities as of November 28, 2016.  81 Fed. Reg. 68,688 (Oct. 4, 2016).  I rely on (and cite to) the regulations in effect in January 2014 which CMS relied upon to determine the deficiencies at issue before me, and which were in effect at the time of the surveys on which those deficiency determinations were based.  See Carmel Convalescent Hosp., DAB No. 1584 at 2 n.2 (1996) (applying regulations in effect on the date of the survey and resurvey).
• 2.Petitioner attached this notice letter to its request for hearing.  CMS did not offer this notice letter as an exhibit.
• 3.In its request for hearing, pre-hearing brief, and closing brief, Petitioner incorrectly states that CMS imposed a $1,100 per-day CMP for the non-immediate jeopardy period.
• 4.I see no reason to disturb Judge Anderson’s rulings disposing of CMS’ motions and entering the parties’ proposed exhibits into the record, which I therefore adopt.
• 5.A party seeking a hearing under 42 C.F.R. Part 498 must do so within 60 days of receiving notice of a determination that would give rise to a right to hearing; the applicable regulation also provides that the presumed date of receipt is five days after the date of the notice, absent a showing otherwise.  42 C.F.R. § 498.40(a), incorporating by reference 42 C.F.R. § 498.22(b)(3).
• 6.The Board’s decisions are freely available online in an easily searchable format.  See https://www.hhs.gov/about/agencies/dab/decisions/board-decisions/index.html.  Any attorney who routinely appears in this forum, like Petitioner’s counsel, should exercise the minimal effort to ascertain whether an argument he or she makes has been previously addressed by the Board, since those decisions are binding on me.  I address this conduct further, infra n.16.
• 7.Though I do not address deficiencies pertaining to Resident 9 further, CMS cited another deficiency under Tag F314 concerning Resident 11, which I will address more fully below.
• 8.A facility charge nurse proffered her own explanation, not adopted here by Petitioner, that Resident 3 would decline pain medication when asked prior to repositioning, but then “verbalize a lot of pain,” and that she thought Resident 3 “needed to be educated on how to tell staff about her pain. . . .”  CMS Ex. 5 at 21.  Of course, the obvious response to this excuse is that Resident 3’s care team should have documented her pain response, as the facility’s pain policy required, and addressed it.  Observing a pain response to repositioning and doing nothing is consistent with the facility’s failure to administer pain medication as needed to Resident 3.  If anyone needed education on assessing pain, it was certainly not the resident.
• 9.This care plan does not appear among Resident 17’s medical records in CMS Ex. 10.
• 10.Unstageable refers to full-thickness skin and tissue loss where the extent of damage cannot be assessed because of obscuration by dead tissue referred to as slough or eschar.  If the dead tissue were removed, a Stage 3 or 4 pressure injury would be revealed.  Nat’l Pressure Ulcer Advisory Panel, NPUAP Pressure Injury Stages at 1, available at https://npuap.org/page/PressureInjuryStages (last visited Jul. 31, 2019).
• 11.Tunneling refers to channels which extend from the wound into or through subcutaneous tissue or muscle and is considered difficult to treat.  Wound Source, Tunneling Wound Assessment and Treatment, available at https://www.woundsource.com/blog/tunneling-wound-assessment-and-treatment (Nov. 15, 2017).
• 12.I find “1/13” to be a scrivener’s error meant to indicate January 2014, a common enough error in the first month of a new year.  It is also very likely the facility weighed Resident 4 on or around January 5, 2014, since the facility’s weight loss management policy required monthly weighing of all resident to be completed by the fifth day of the month.  CMS Ex. 7 at 142.
• 13.The substance of 42 C.F.R. § 483.25(i) is now found at 42 C.F.R. § 483.25(g)(1) and identified under Tag F692.  According to the SOM guidance regarding 42 C.F.R. § 483.25(g)(1), a 5% loss in body weight in one month would be considered a “significant loss,” while a greater than 5% loss would be considered a “severe loss.”  Over a three-month interval, a 7.5% loss in body weight would be considered a “significant loss,” while a greater than 7.5% loss would be considered a “severe loss.”  Over a six-month interval, a 10% loss in body weight would be considered a “significant loss,” while a greater than 10% loss would be considered a “severe loss.”  State Operations Manual Appendix PP at 325, available at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Downloads/Appendix-PP-State-Operations-Manual.pdf (last rev. Nov. 22, 2017).
• 14.CMS has not objected to this unsigned statement.  For that reason, I will not exclude it.
• 15.When interviewed by the surveyor, CNA Miller stated that LVN Johnson-Salmon performed four chest compressions per cycle with no breaths.  Compare CMS Ex. 20 at 2, with CMS Ex. 30 at 4.  I find this slight discrepancy immaterial, as neither four nor five compressions is the correct number of chest compressions in administering CPR under the facility’s own policy, which required 30 compressions for every 2 rescue breaths administered.  P. Ex. 2 at 2.
• 16.I note with some concern that Petitioner’s counsel has again made a legal argument before me that the Board has expressly considered and rejected, in this case on several occasions, but has failed to cite or acknowledge those binding precedents.  Attempting to rely on an older non-precedential case while ignoring more recent precedential authority could be viewed as a violation of the ethical rule requiring attorneys to display candor toward a tribunal.  See Tex. Disciplinary R. Prof. Conduct, R. 3.03(a)(4)(“A lawyer shall not knowingly . . . fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel”) available at https://www.legalethicstexas.com/Ethics-Resources/Rules/Texas-Disciplinary-Rules-of-Professional-Conduct/III--ADVOCATE/3-03-Candor-Toward-the-Tribunal (last visited Aug. 5, 2019); see also Am. Bar Ass’n, Model Rules of Prof. Conduct, R. 3.3(a)(2), available at https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal/ (last rev. Jun. 11, 2019).  I do not fault any attorney who wishes to make an argument to preserve an appeal in order to convince a reviewing body to reconsider its position.  However, it is ethically incumbent for that attorney to display candor and accurately advise the tribunal of the current state of the law.
• 17.Under the revised nursing home regulations, the Quality Assurance participation requirements are now found at Tag F865.  42 C.F.R. § 483.75(o) has been re-designated, with no textual changes, as 42 C.F.R. § 483.75(i).
• 18.Among other things, the SOD states the following with respect to Resident 1 under tag F309:  “Resident #1’s Interim Plan of Care, dated 03/08/13, did not reflect he wanted CPR.  Resident #1’s Plan of Care, dated 03/20/13, did not reflect he wanted CPR.  Resident #1’s Plan of Care, dated 12/08/13, reflected, ‘ADVANCE DIRECTIVES: FULL CODE [initiate CPR],’ but it was not indicated as a problem or need for the resident.”  CMS Ex. 19 at 89.  As I discuss above, the December 2013 care plan explicitly notes on its face Resident 1’s full code status, and I reject Petitioner’s inaccurate representation of this document.
• 19.CMP amounts increased, effective February 3, 2017, for deficiencies occurring after November 2, 2015.  See 82 Fed. Reg. 9,174 (Feb. 3, 2017).  As the deficiencies alleged in this case occurred prior to November 2, 2015, the increased CMP amounts do not apply in this case.
• 20.CMS does not address this document in its briefing.