Emery County Care and Rehabilitation Center, DAB No. 3006 (2020)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Emery County Care and Rehabilitation Center (Emery), a skilled nursing facility, appeals the administrative law judge decision, Emery County Care and Rehabilitation, DAB CR4979 (2017) (ALJ Decision).  The ALJ determined that Emery was not in substantial compliance with Medicare quality of life and quality of care requirements because its staff did not provide necessary care and services to a resident who fell, struck the back of his head, and showed signs of a potentially life-threatening injury shortly after the fall.  The ALJ found that Emery's staff failed to consult with a physician about the resident's condition and delayed calling emergency medical services (EMS) to transport the resident to a hospital until nearly two hours after he fell.  By the time the resident arrived at a hospital, the ALJ found, he was beyond assistance and died.  The ALJ determined that the civil money penalty (CMP) imposed on Emery, $1,703 per day beginning November 30, 2016, through May 1, 2017, was justified in amount and duration.

As explained below, the ALJ's findings and conclusions are supported by substantial evidence in the record and free of legal error.  We therefore affirm the ALJ Decision.

Legal background

A skilled nursing facility must be in "substantial compliance" with the requirements in 42 C.F.R. Part 483, subpart B to participate in Medicare.  42 C.F.R. §§ 483.1, 488.400.1  A "deficiency" is a "failure to meet a participation requirement."  Id. § 488.301.  A facility

Page 2

is not in "substantial compliance" when it has one or more deficiencies that have the potential to cause more than minimal harm to residents.  Id.  The term "noncompliance" is synonymous with lack of substantial compliance.  Id.  The Centers for Medicare & Medicaid Services (CMS) contracts with state agencies to perform onsite surveys to verify facility compliance with Medicare participation requirements.  Id. §§ 488.10(a), 488.11.

CMS may impose enforcement remedies, including a per-day CMP, based on a state agency survey finding that a facility is not in substantial compliance.  42 C.F.R. §§ 488.400, 488.402(b), (c), 488.406.  CMS determines the amount of a CMP based on multiple factors, which include the "seriousness" of the noncompliance.  Id. §§ 488.404, 488.438(f).

A skilled nursing facility may request an ALJ hearing to contest a CMS noncompliance determination that has resulted in the imposition of a CMP or other enforcement remedy.  42 C.F.R. §§ 488.408(g)(1), 498.3(b)(13), 498.40.  Each party has a right to request Departmental Appeals Board (Board) review of an ALJ decision.  Id. Part 498, subpart E.

Case background

The Utah Department of Health, Bureau of Health Facility Licensing and Certification (state agency) conducted a complaint investigation survey of Emery on March 9, 2017.  CMS Exs. 1, 2.  The state agency found that Emery was not in substantial compliance with the Medicare and Medicaid participation requirements at 42 C.F.R. §§ 483.24 (Quality of life), 483.25 (Quality of care), 483.45(f)(2) (Residents Free from Significant Medication errors) and 483.50(a)(2)(ii) (Promptly notify physician of lab results).2  Id.  The state agency found that the most serious deficiency posed actual harm, based on findings relating to Emery's care of a resident identified as Resident 1 (R1).  Id. R1 was admitted to Emery on July 20, 2015, at the age of 74, with diagnoses that included hypertension, hyperlipidemia, malnutrition, adult failure to thrive, and chronic obstructive pulmonary disease.  CMS Ex.1, at 2; CMS Ex. 13.  The state agency found that Emery failed to timely consult a physician and delayed for two hours contacting EMS to transport R1 to a hospital emergency room after he fell and sustained a laceration to his head on the night of November 29, 2016. CMS Ex. 1, at 1-6.

By letter dated April 12, 2017, CMS notified Emery that it was not in substantial compliance with the participation requirements cited by the state agency, that significant corrections were required, and that CMS was imposing multiple remedies on the facility,

Page 3

including a CMP in the amount of $1,703 per day beginning November 30, 2016, and continuing until the facility achieved substantial compliance with all participation requirements.  CMS Ex. 3, at 1-2.

CMS subsequently notified Emery that a follow-up survey conducted on May 8, 2017, concluded that Emery had achieved and maintained substantial compliance.  CMS Ex. 4.  CMS determined that Emery completed the corrections on May 1, 2017.  CMS Ex. 24.  CMS notified Emery that the total amount of the CMP was $260,559.3  CMS Ex. 4.

ALJ proceedings and decision

Emery requested an ALJ hearing to contest CMS's noncompliance determination and the CMP.  CMS submitted a motion for summary judgment with its pre-hearing brief, proposed exhibits, and the written direct testimony of its proposed witnesses.  Emery opposed CMS's motion for summary judgment and submitted a cross-motion for summary judgment with its prehearing brief, proposed exhibits, and the written direct testimony of its proposed witnesses.

The ALJ received the parties' exhibits into the record and decided the case based on the full, written record.  The ALJ stated that it was "unnecessary that [he] decide whether the traditional criteria for summary judgment [were] met because" the parties filed written direct testimony of their witnesses, and "neither party filed a request to cross examine its opponent's witnesses."  ALJ Decision at 1-2.  The ALJ noted that in his initial pre-hearing order, he "instructed each party to inform [him] if it desired to cross examine its opponent's witnesses," and neither party had done so.  Id. at 2 n.1.

On review of the record, the ALJ determined that Emery failed to comply substantially with the quality of life and quality of care requirements at 42 C.F.R. §§ 483.24 and 483.25 because its staff did not provide necessary care and services to R1 on the night of November 29, 2016.  The ALJ found that the evidence established that R1 fell and struck his head at about 9:00 p.m. and exhibited "signs of a potentially life threatening injury almost immediately after falling."  ALJ Decision at 3.  Those signs, the ALJ found, "were sufficient at the outset to require" Emery's staff to consult a physician and send R1 to a hospital emergency room.  Id.  The ALJ further found that, despite R1's obvious deterioration over the ensuing two hours, staff delayed calling for emergency transport until 10:56 p.m.  Id. at 3-4 (citing CMS Exs. 14, 15, 16, 22, 23).  The ALJ determined that staff did not effectively follow Emery's own policy for dealing with traumatic

Page 4

injuries and acute changes in a resident's condition, which requires staff to contact a resident's physician in an urgent situation and obtain a response within one-half hour or less.  Id. at 4 (citing CMS Ex. 10).  The ALJ determined that Emery "violated section 483.24" by "allowing the resident's condition to deteriorate without obtaining emergency medical treatment," thus depriving "the resident of the quality of life he was entitled to receive."  Id.at 4.  Emery violated section 483.25, the ALJ determined, "because the care that [its] staff gave to the resident after he fell was substandard."  Id.

The ALJ further determined that the amount of the CMP was justified in light of the seriousness of Emery's staff's failure to recognize and respond to what was potentially a grave injury requiring urgent medical attention.  The ALJ noted that Emery offered no evidence to contest the duration of its noncompliance or the per-day penalty amount.  The ALJ concluded that he need not address the allegations of Petitioner's noncompliance with sections 483.45(f)(2) or 483.50(a)(2)(ii) because Petitioner's noncompliance with the quality of care and quality of life requirements was sufficiently serious to justify the CMPs that CMS imposed.  The ALJ also noted that "CMS found Petitioner only minimally noncompliant with these" sections.  ALJ Decision at 2.

Standard of review

The Board's standard of review on a disputed issue of law is whether the ALJ's decision is erroneous.  Guidelines - Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's Participation in the Medicare and Medicaid Programs, https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/participation/index.html.

The Board's standard of review on a disputed factual issue is whether substantial evidence in the record as a whole supports the ALJ's decision.  Guidelines.  Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."  Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).  Under the substantial evidence standard, the reviewer must examine the record as a whole and take into account whatever in the record fairly detracts from the weight of the decision below.  Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

When a party alleges a procedural error in ALJ proceedings, the Board reviews the ALJ decision to determine whether the ALJ committed an error of procedure that resulted in prejudice (including an abuse of discretion under the law or applicable regulations).  Blossom South Nursing & Rehab. Ctr., DAB No. 2578, at 6 (2014); Guidelines.

Page 5

Analysis

1.  The ALJ did not err in deciding the case on the full record.

Emery argues that the ALJ should have considered and granted Emery's motion for summary judgment instead of deciding the case on the record.  Request for Review (RR) at 10-11.4  According to Emery, summary judgment in its favor was appropriate because:  (1) CMS did not make a prima facie showing that Emery was not in substantial compliance with any Medicare participation requirement; and (2) there is no dispute of material fact.  Id.Emery says that when a party files a request for summary judgment, "an ALJ does not get to weigh the facts and reach a decision," but "must take the undisputed facts and apply them to the law."  Id. at 11; see also Emery Reply at 3 (The ALJ "should have first considered the summary judgment motions of both parties and denied them both before ever providing analysis of the case as a factfinder.").  Emery contends that the ALJ cited no controlling law allowing him to disregard its request for summary judgment on the ground that neither party had filed a request to cross-examine its opponent's witnesses.  "Indeed," Emery says, "a lack of request for cross-examination by either side indicates that there is no dispute as to the facts, and that summary judgment would therefore be proper, one way or the other."  RR at 11.  Emery simultaneously argues that, "since CMS failed to respond to Emery's motion for summary judgment with specific facts showing a genuine issue for trial, the ALJ should have granted summary judgment in Emery's favor, and the DAB should now enter such a decision."  Emery Reply at 4; see also RR at 12.

We reject Emery's arguments.  Summary judgment is appropriate where:  (1) there is no genuine dispute about a fact or facts material to the outcome of the case; and (2) the moving party is entitled to judgment as a matter of law.  Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986).  In deciding whether there is a genuine dispute of material fact, an adjudicator must view the evidence in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences that may be drawn from the evidence.  E.g., Golden Living Ctr. – Trussville, DAB No. 2937, at 8 (2019), and cases cited therein.  The ALJ ruling on a summary judgment motion does not assess credibility, weigh the evidence, or evaluate and decide what inferences to draw from the evidence.

Properly applied, summary judgment may prevent unnecessary delay, promote the expeditious disposition of a case, and avoid an unnecessary trial when no genuine issue of material fact has been raised. 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2712 (4th ed. April 2020 update).  Summary judgment, "is not

Page 6

only an instrument of just, speedy and inexpensive resolution," however, "but also a lethal weapon capable of overkill."  Nunez v. Superior Oil Co., 572 F.2d 1119, 1123 (5th Cir. 1978) (internal quotation marks and citations omitted).  Hence, the Supreme Court has stated that trial courts should "act . . . with caution in granting summary judgment" and "deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial."  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The appeals procedures in 42 C.F.R. Part 498, subpart D, do not expressly provide for ALJs to decide cases on summary judgment.  ALJs of the Civil Remedies Division have long applied summary judgment principles in Part 498 appeals, however, looking to Rule 56 of the Federal Rules of Civil Procedure as guidance.  John A. Hartman, D.O., DAB No. 2911, at 6-7 (2018); Civil Remedies Division Procedures (CRDP) (¶ 19).  On review of ALJ decisions, the Board has held that summary judgment, in appropriate circumstances, is an acceptable procedure to promptly and efficiently resolve a skilled nursing facility's appeal under 42 C.F.R. Part 498.  See, e.g., Livingston Care Ctr., DAB No. 1871, at 5 (2003), aff'd, Livingston Care Ctr. v. U.S. Dep't of Health & Human Servs., 388 F.3d 168 (6th Cir. 2004).

That summary judgment is available in ALJ proceedings does not require an ALJ to decide a case on summary judgment when the parties file cross-motions for summary disposition, however.  Where parties make cross-motions for summary judgment, it does not necessarily follow that there are no disputed issues of material fact or that plenary proceedings are unnecessary.  10A Federal Practice and Procedure § 2720; e.g. Golden Living Center - Trussville.  "Cross-motions are no more than a claim by each side that it alone is entitled to summary judgment," not an agreement by the parties "that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist."  Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).  "[W]hether a genuine dispute concerning a material fact exists is itself a question of law" that the ALJ must decide.  10A Federal Practice and Procedure § 2720.  If any such issue exists, it must be disposed of through a decision on the fully-developed record, allowing the ALJ to weigh the evidence and determine the truth of the matter.

Furthermore, the fact that one party fails to meet its burden of establishing that no genuine dispute of material fact exists and that it is entitled to judgment as a matter of law does not establish that the opposing party has satisfied its burden on summary judgment.  10A Federal Practice and Procedure § 2720.  A party may argue that no issue exists under that party's legal theory, but at the same time may maintain that there is a genuine factual dispute if its theory is rejected or its opponent's legal theory is adopted.  Id.  The legal theories a party advances in support of a summary judgment motion and the assertion that there is no issue of material fact may not be used against the movant when the court rules on the opponent's motion.  Id.

Page 7

The Board also has held that an ALJ may issue "a decision based on the written record without holding an in-person hearing after the ALJ provided clear notice" to the parties "that [the ALJ] would do so if a hearing [was] not necessary."  James Brian Joyner, M.D., DAB No. 2902, at 12 (2018).  In reaching this conclusion, the Board has held that an ALJ may order parties to submit the direct testimony of their proposed witnesses in writing and, where neither party seeks to cross-examine any witness, "the ALJ's decision to forego an in-person hearing does not generally pose a due process concern."  Id. at 11 (citations omitted).  The Board has explained that federal courts "have allowed, and even strongly encouraged, written direct testimony in a variety of proceedings.  Since it is offered under oath, [written direct testimony] is generally no less credible in most instances than oral testimony in the hearing room, as long as the witness is subject to cross-examination."  Pac. Regency Arvin, DAB No. 1823, at 7-8 (2002) (citing Kuntz v. Sea Eagle, 199 F.R.D. 665 (D. Haw. 2001)).

In this case, Emery received notice of the alternative procedures available to the ALJ to adjudicate the appeal.  Shortly after Emery filed its hearing request, the ALJ issued an Acknowledgment and Pre-Hearing Order instructing the parties what to do to prepare for the "evidentiary hearing that may occur."  Acknowledgment and Pre-Hearing Order, Docket No. C-17-781, at 1 (Jun. 16, 2017).  The order told the parties how to "file motions for summary disposition or for disposition based on written submissions."  Id.  In addition, the ALJ directed the parties to include in their prehearing exchanges "the complete, written direct testimony of any proposed witness . . . in lieu of in-person testimony."  Id. ¶ 7, at 5.  The order notified the parties that they had the right to cross-examine any of their opponents' witnesses and that a "hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine."  Id. ¶¶ 8, 9, at 6.  The ALJ's order plainly advised the parties that if an in-person hearing to permit cross-examination of witnesses was not required, the ALJ would consider the case record closed "and the case ready for decision immediately after Petitioner's exchange or after any CMS response, if applicable . . . ."  Id.¶ 12, at 7.

Emery also received a copy of the Civil Remedies Division Procedures (CRDP) as an attachment to the ALJ's Acknowledgment and Pre-Hearing Order.  Section 16(b) of the CRDP provides that "[a]n ALJ may direct the parties to submit the written direct testimony of proposed witnesses in lieu of holding an oral hearing to obtain that direct testimony," and in that event, "an oral hearing would be convened only for the purposes of permitting cross-examination and redirect testimony of witnesses."  Section 19(d) provides:

The ALJ may determine that an oral hearing is unnecessary and not in the overall interest of judicial economy if the parties do not identify any proposed witnesses, do not offer the written direct testimony of any witnesses when ordered to do so, or do not request an opportunity to cross-

Page 8

examine a witness whose written direct testimony has been offered.  Under these circumstances, the ALJ may decide the case based on the written record.

The ALJ's Pre-Hearing Order and the CRDP thus gave Emery clear notice that the ALJ might decide Emery's appeal on the written record absent any request to cross-examine a witness who provided written direct testimony.

Consequently, after receiving Emery's and CMS's motions and briefs, evidence, and written testimony, and absent a request by either party for cross-examination, the ALJ was authorized to determine whether summary judgment was appropriate or proceed directly to adjudicating the case on the fully-developed written record.  In light of the alternative procedures available to efficiently resolve the case, the ALJ did not err in declining to rule on the parties' cross-motions for summary judgment.  The ALJ instead reasonably determined that the better course was to decide the appeal on review of the complete written record, weighing the evidence, drawing reasonable inferences supported by the evidence, and fully evaluating the parties' arguments.  As we explain below, the ALJ's assessments and inferences drawn from the evidence and evaluation of the parties' legal arguments are supported by the record and free from legal error.

2.  The ALJ's determination that Emery was not in substantial compliance with 42 C.F.R. §§ 483.24 or 483.25 is supported by substantial evidence and free from legal error.

The quality of life and quality of care requirements

The regulations at 42 C.F.R. §§ 483.24 and 483.25 set out the "two separate and overarching principles in the delivery of care to residents" of long term care facilities.  81 Fed. Reg. 68,745.5  Quality of life, the principle described in the lead-in language of section 483.24, requires that "[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain" the resident's "highest practicable physical, mental, and psychosocial well-being, consistent with the resident's comprehensive assessment and plan of care."  Quality of care, the principle described in the lead-in language of section 483.25, requires a facility to ensure that each resident receives treatment and care based on the resident's comprehensive assessment and "in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident's choices. . . ."6

Page 9

Substantial evidence supports the ALJ's findings that Emery failed to provide R1 with necessary urgent medical care and services.

Facility records and the surveyor's detailed testimony explaining the significance of the changes in R1's vital signs on the night of November 29, 2016, amply support the ALJ's findings that R1 "manifested signs of a potentially life threatening injury almost immediately after falling" and that the "signs . . . were sufficient at the outset to require physician consultation and transport of the resident to an emergency room."  ALJ Decision at 3.  Emery's progress notes and SBAR (situation, background, assessment and recommendation) communication form show that R1 fell, struck the back of his head, and sustained a laceration at about 9:00 p.m. on November 29, 2016.  CMS Ex. 15, at 2; CMS Ex. 16, at 2.  Staff documented that R1 "was fine until he fell."  CMS Ex. 15, at 1.  R1's neurological record and staff progress notes show that, immediately after he fell, R1's blood oxygen saturation level had dropped to 64% on room air and his "conversation" was "confused."  CMS Ex. 14, at 1.  According to R1's medical record, his baseline oxygen saturation was "usually above 90%" on room air.  CMS Ex. 16, at 2.

Surveyor, C.L., a registered nurse with many years' experience working in and surveying long term care facilities, described the significance of the data recorded by Emery staff as follows:

. . . [A]s a nurse, I know that an oxygen saturation level of 64% on room air is very concerning.  Oxygen saturation levels measure the amount of oxygen that is being carried by red blood cells through a person's veins.  When a person's oxygen saturation level is too low for a prolonged period of time, the person is at risk of having a heart attack or of experiencing respiratory failure.  Additionally, a person's organs are at risk of shutting down.  The short-term effects of low oxygen saturation levels include shortness of breath and increased heart rate.

Based on my education and experience, I know that a normal oxygen saturation level is over 90%.  In this case, [the] nursing note dated November 30, 2016, stated that [R1's] typical oxygen saturation level was 90% on room air.  CMS Ex. 16, p.2.  In light of this, and in combination with the nurse's assessment that he was confused following his fall, the nurse should have immediately contacted [R1's] physician and requested approval to transfer him to an emergency room via ambulance.  If the nurse was unable to reach [R1's] physician, it is my opinion that the nurse in charge of [R1's] care should have contacted emergency services.  Given the significant change in [R1's] vital signs, it was critical that he receive care as soon as possible at a hospital.

Page 10

CMS Ex. 23, ¶ 10, at 2.  The documentation of R1's oxygen saturation level immediately after the fall and the surveyor's testimony as to why "an oxygen saturation level of 64% on room air is very concerning" constitute substantial evidence to support the ALJ's finding that R1's "blood oxygen saturation level should have, in and of itself, alerted Petitioner's staff that [R1] was potentially in a dire condition necessitating emergency medical care."  ALJ Decision at 3.  Moreover, the ALJ pointed out, R1's "normal blood oxygen saturation level usually was above 90 percent, so the level recorded immediately after [R1's] fall was not only in and of itself a warning of a potentially grave medical development but was a sharp departure from the resident's normal state."  Id. (citing CMS Ex. 16, at 2).  Indeed, Emery's own director of nursing stated in an interview with the surveyor that R1 should have been transferred to the hospital shortly after he fell.  CMS Exs. 18, at 8; 1, at 4.

Substantial evidence also supports the ALJ's finding that staff failed to ensure that R1 received necessary urgent medical care as his "condition deteriorated markedly over the ensuing two hours."  ALJ Decision at 3.  Emery's progress notes show that after R1 fell, staff administered oxygen to him by nasal cannula at the rate of 2 liters per minute.  CMS Ex. 16, at 2.  As of 9:30 p.m., R1's pulse had increased from 114 to 126, and his respirations had increased from 16 to 36.  CMS Ex. 14, at 1.  R1's oxygen saturation level had increased to 78%.  Id. Describing the meaning of the changes in R1's vital signs, surveyor L.M. testified that "his breathing was becoming more labored as his body attempted to increase the amount of oxygen in his blood."  CMS Ex. 23, ¶ 11, at 3.  His oxygen saturation level had increased only to 78%, which "was not markedly better even with additional oxygen being administered."  Id.Based on the surveyor's opinion as to the professional standard of care, "it was incumbent upon Emery's nursing staff to contact emergency services" and transport him to a hospital immediately.  Id.

As of 10:00 p.m., R1's status had further deteriorated, making emergency transportation to a hospital all the more imperative.  His neurological status, measured by an eye, motor, and verbal (EMV) responses scoring system, had declined from a total score of 14 to 8.  CMS Ex. 14, at 1.  Under the EMV scale, a "fully conscious resident would score 15 points.  A comatose resident would score 3 points."  Id.While previously R1 had opened his eyes spontaneously, he now opened his eyes only in response to speech.  Id.  "[P]erhaps most significantly," the surveyor testified, his extremities had become flaccid, that is, "limp and not responding to stimuli."  CMS Ex. 23, ¶ 12, at 3; CMS Ex. 4, at 1.  R1 also had developed a fever of 100.2 degrees.  CMS Ex. 4, at 1.  In addition, R1's blood oxygen saturation level had dropped to 74%, even though he continued to receive supplemental oxygen by nasal cannula.  CMS Ex. 14, at 1.  The drop in R1's blood oxygen saturation level, the surveyor testified, signaled that the supplemental oxygen was "not effective."  CMS Ex. 23, ¶ 12, at 3.  Moreover, the surveyor explained, R1's oxygen saturation level had been "well below his typical 90% on room air for an hour," posing a risk of brain injury, heart attack or death.   Id.  The drop in R1's blood oxygen saturation

Page 11

level "coupled with [R1's] ongoing confusion," the surveyor opined, "should have triggered staff to contact emergency services for assistance."  Id.

By 10:30 p.m., R1's condition had drastically worsened.  Facility records show that R1's blood pressure had plummeted from 136/88 to 80/42, and his blood oxygen saturation level had dropped to 69%, despite the continued administration of supplemental oxygen.  CMS Ex. 14, at 1.  His extremities remained flaccid, his eyes opened only in response to speech, and he remained confused.  Id.  Surveyor C.L. testified:  "All of these factors show that [R1] was in dire need of emergency services."  CMS Ex. 23, ¶ 13, at 3.  Nevertheless, the records show, Emery's staff did not call for EMS transport until 10:56 p.m.  CMS Ex. 22.  When EMS arrived at Emery, technicians found R1 unresponsive but breathing, with a one inch laceration to the back of his head that was bleeding.  Id. at 2.  Upon arrival at the hospital, R1 appeared cyanotic and was not breathing.  CMS Ex. 13, at 1.  Hospital staff attempted to resuscitate him, but were unsuccessful, and he was pronounced dead at 12:12 a.m. on November 30, 2016.  Id.at 2.

The record additionally supports the ALJ's determination that staff failed to abide by Emery's own policy for contacting a resident's physician in an emergency.  The Board has repeatedly held that CMS may reasonably rely on a facility's protocols and treatment policies as evidencing the facility's own judgment of the care and services that are necessary at a minimum to attain or maintain its residents' highest practicable physical, mental, and psychosocial well-being.  E.g., The Laurels at Forest Glen, DAB No. 2182, at 18 (2008) ("CMS may reasonably rely on a facility's policy relating to the care and treatment of its residents as evidencing the facility's understanding of what must be done to attain or maintain residents' highest practicable physical, mental, and psychosocial well-being."); Hanover Hill Health Care Ctr., DAB No. 2507, at 6 (2013) ("[T]he Board has long held that a facility's own policy may be sufficient evidence both of professional standards of quality and of what the facility has determined is needed to meet the quality of care requirements.").

Here, Emery's "Acute Condition Changes – Clinical Protocol" provided that "nursing staff will contact the Physician based on the urgency of the situation" and in "emergencies, [staff] will call or page the Physician and request a prompt response (within approximately one-half hour or less)."  CMS Ex. 10, ¶ 6, at 1.  If staff does "not receive a timely or appropriate response," the policy further provides, "staff will notify the Medical Director for additional guidance and consultation."  Id. ¶ 7, at 2.  In R1's case, the nurse overseeing R1's medical care on the night of November 29, 2016, testified that she attempted to call a physician at about 9:00 p.m., just after the fall, but the physician was unavailable and his "voicemail box was full."  Emery Ex. 2, at 3 (Affidavit of LPN V.H.).  She then attempted to contact the physician by fax.  Id. at 3.

Page 12

We agree with the ALJ that sending a fax at 9:00 p.m. to notify a physician of a medical emergency cannot plausibly be considered an adequate method to obtain a prompt response.  Moreover, Emery's administrator stated in a survey interview that it was Emery's policy to immediately activate EMS when a resident falls and sustains a laceration or has a change in neurological status.  CMS Ex. 1, at 5.  Yet, nearly two hours elapsed before the facility took that step in this incident.

Applying the quality of life and quality of care principles to the evidence and testimony discussed above, we agree with the ALJ that Emery's staff's failure to immediately and effectively notify R1's physician of R1's fall and acute change in condition and promptly activate EMS to take R1 to the hospital violated sections 483.24 and 483.25 of the Medicare participation requirements.  Emery violated section 483.24 because it did not provide the care and services necessary to attain or maintain R1's "highest practicable physical, mental, and psychosocial well-being," thereby depriving R1 of the quality of life that he had a right to receive.  42 C.F.R. 483.24; ALJ Decision at 4.  Emery violated section 483.25 because staff failed to ensure that R1 received necessary emergency medical treatment and care in accordance with professional standards of practice and the facility's own protocols.

Emery's arguments are unavailing.

Emery repeats on appeal the arguments it made to the ALJ.  Emery reasserts that it met CMS quality of life and quality of care guidelines requiring facilities to assess residents, evaluate the results of interventions, and revise interventions as necessary.  RR at 13-15 (citing CMS SOM App. PP, Tag F309).  Emery says that its staff properly assessed R1 after he fell, "placed him on oxygen," and monitored him every 30 minutes thereafter.  Id. at 15.  Emery maintains that R1's condition did not significantly decline until 10:30 p.m.  At that point, Emery says, "staff consulted with" R1's "significant other and it was jointly decided to transfer" him to a hospital.  Id.

The information recorded by Emery's staff in R1's medical record on the night of the fall and detailed testimony discussed above disprove Emery's claim that R1's condition did not significantly deteriorate until 10:30 p.m.  The nearly 30% drop in R1's oxygen saturation level immediately after the fall, documented by staff and discussed by the surveyor, indicated that R1 had suffered a traumatic injury.  The fever that R1 later developed and significant decline in R1's neurological status over the following hour further disprove Emery's claim.  Moreover, as the ALJ pointed out, Emery's argument that the initial drop in R1's oxygen saturation level was insignificant "is belied by the fact that [Emery's] staff evidently found it sufficiently alarming as to attempt (albeit unsuccessfully) to notify the resident's treating physician."  ALJ Decision at 5.

Page 13

As the ALJ further explained, while the evidence shows that Emery's "staff dutifully recorded Resident 1's vital signs and condition after he fell," it "does not show that the staff made a realistic evaluation of what [staff] found before about 10:30 p.m.," 90 minutes after he fell.  ALJ Decision at 5.  Most notably, while at 10:00 p.m., staff recorded the significant drop in R1's neurological responses and decrease in oxygen saturation level, there is no contemporaneous documentation showing that staff appreciated the significance of the decline or recognized that the intervention provided immediately after the fall – supplemental oxygen – was ineffective.  Consequently, Emery's staff failed to take appropriate action.

Emery also argues that it complied with CMS's quality of life and quality of care guidance, which "requires that the resident obtains optimal improvement or not deteriorate, but only within the resident's right to refuse treatment." RR at 13, 15 (quoting SOM App. PP, Tag F 309).  Emery contends that staff did not call for EMS to take R1 to the hospital until 10:56 p.m. because R1 or his "significant other" refused a hospital transfer before that time.  Relying on the post-hoc testimony of the nurse responsible for R1's medical care on the night at issue, Emery alleges that R1 "was alert and oriented" after he fell and "specifically requested that he not go to the hospital."  RR at 15; Emery Ex. 2, at 2 (Affidavit of LPN V.H.).  Acknowledging that R1's conversation was confused, the nurse testified that R1 "was often confused."  Emery Ex. 2, at 2.  Emery asserts that, "despite any . . . deterioration up until the point that the resident could not communicate his desires, Emery met" the quality of life and quality of care requirements because staff gave R1 the right to refuse treatment.  RR at 15.  Emery says that R1 remained responsive as of 10:00 p.m., and he was verbally interacting with staff at 10:15.  Id. at 22.  Not until 10:30 p.m. did R1 become nonresponsive, Emery asserts.  Emery claims that at that point, staff "engaged in a meeting with [R1's] significant other to discuss whether to send him to the hospital, and once this was completed, they contacted emergency services."  Id. at 20.  Emery contends that the ALJ seemingly ignored the testimony of its witnesses explaining why emergency services were not contacted for nearly a half hour after staff determined, at 10:30, that R1 should be sent to the hospital.

Section 483.10(c)(6) of the regulations provides that a resident has the right to be informed of and participate in his treatment, including the right to refuse treatment.  Substantial evidence in the record here supports the ALJ's conclusion that R1 was not capable of making an informed decision to refuse to be transferred to a hospital after he fell.  Emery staff documented on R1's neurological record at the time of the incident that R1's conversation was confused after he fell and remained so.  CMS Ex. 14, at 1.  The neurological record further documents that by 10:00 p.m., R1 no longer opened his eyes spontaneously and his extremities were flaccid.  Moreover, a certified nurse assistant (CNA) who observed R1 stated in a survey interview that after R1 fell, he was not appropriately responding to questions, "was slurring" his words, and was not "making sense."  CMS Ex. 1, at 5.  Another CNA stated that R1 "went downhill" after the fall and

Page 14

was "pretty much out of it."  Id.at 4.  In light of the medical records evidencing R1's compromised neurological status on the night of the fall, we agree with the ALJ that Emery's staff could not reasonably rely on R1's ability to make an informed decision "as to whether he needed to be taken to a hospital."  ALJ Decision at 5.  Furthermore, that R1 was frequently confused does not justify Emery's reliance on R1's initial, and allegedly ongoing, resistance to the transfer as an informed decision to refuse necessary emergency medical care.

We also conclude that Emery's explanation why it delayed calling emergency services for nearly a half hour after staff determined that R1 should go to the hospital is neither supported by the record nor plausible.  The nurse's note entered into R1's medical record in the early morning hours of November 30 states that R1's "significant other was present in the room" on the night he fell, but does not mention an objection to the transfer by the significant other.  CMS Ex. 16, at 2.  Contradicting Emery's justification for the additional delay, the surveyor's notes show that the nurse stated in a survey interview that "Not very far into neuro" checks, the nurse "talked" with the significant other and R1 "to go to [the] hosp[ital]," and the significant other "agreed" and R1 "didn't fight."  CMS Ex. 18, at 5.   In the survey summary of the interview, the nurse stated that she did not activate EMS before 10:30 because she "had to get permission" from R1's significant other.  CMS Ex. 1, at 5-6.  Neither the surveyor's notes or summary of the interview reference a meeting or discussion with the significant other that began at 10:30 and lasted for nearly a half-hour, until almost 11:00 p.m.  Furthermore, the nurse's testimony itself does not substantiate Emery's claim that it was R1's significant other's objection to the hospital transfer that caused the additional delay.  The nurse says in her sworn statement that she called EMS "after" the significant other agreed to the transfer, but she does not state that the significant other refused the transfer until nearly 11:00 p.m. or specify how much time elapsed between the time the significant other agreed and staff made the call.  The nurse simply states:  "At 2230, Resident 1 became not responsive, and after his significant other agreed, the ambulance was called . . . ."  Emery Ex. 2, at 3.  Moreover, even if R1's significant other objected to the emergency transfer and her objection was the cause of the delay, there is no documentation in the record evidencing that the significant other was in fact authorized to exercise R1's right to refuse treatment.

Emery also asserts that it produced testimony from an expert in emergency services and transport "that emergency services were contacted at the correct time" for R1, and "this evidence is far more substantial than anything CMS provided."  RR at 4; Reply at 5; see also Reply at 6-7.  Emery argues that its expert, a CNA trained as an emergency medical technician (EMT) who worked at Emery and came on duty at approximately 10:00 p.m. on the night R1 fell, testified that R1's blood oxygen saturation level did not indicate emergency medical care was required until it dropped at 10:30.  RR at 19; Emery Ex. 3.

Page 15

When, as in this case, an ALJ has rendered a decision on an evidentiary record, the Board does not re-weigh the evidence but determines whether a contested finding could have been made by a reasonable factfinder, taking into account whatever in the record fairly detracts from the weight of the evidence on which the ALJ relied.  Maysville Nursing & Rehab., DAB No. 2874, at 10 (2018).  Where an ALJ has evaluated the weight to assign to conflicting evidence and made credibility determinations, the Board defers to the ALJ as the fact finder unless a party demonstrates a compelling reason not to do so.  Consol. Home Health, DAB No. 2878, at 12 (2018), and cases cited therein.

On review of the CNA-EMT's testimony, we find no compelling reason not to defer to the ALJ's findings.  Contrary to Emery's characterization, the CNA-EMT's entire testimony relating to R1's condition and Emery staff's actions on the night of November 29, 2016, consists of the following summary statements:

6. Based upon my knowledge of the incident with Resident 1, emergency services were called at the appropriate time.
7. I hereby certify:

Emery Ex. 3, at 2.  In contrast with the surveyor's detailed testimony explaining why the changes in R1's vital signs and neurological status immediately after the fall and thereafter necessitated an emergency transfer to a hospital, the CNA-EMT's cursory testimony is devoid of any probative discussion of the information recorded in R1's medical record.  Weighing the two, a trier of fact could not reasonably find Emery's witness testimony "far more substantial than anything CMS provided," as Emery claims.  Emery Reply at 5.  In sum, the testimony offered by Emery does not detract from the weight of the evidence on which the ALJ relied.

3.  The CMP imposed is reasonable.

A facility may challenge the reasonableness of the amount of a CMP imposed for noncompliance.  Golden Living Ctr. – Superior, DAB No. 2768, at 26 (2017) (citing Lutheran Home at Trinity Oaks, DAB No. 2111, at 21 (2007)).  For deficiencies cited at less than the immediate-jeopardy level, as in this case, the permissible range of per-diem penalties is from $50 to $3,000 per day.  CMS Exs. 1, 2; 42 C.F.R. § 488.438(a)(l)(ii).

Page 16

"An ALJ (or the Board) reviews de novo whether a CMP is reasonable based on facts and evidence in the administrative record concerning the factors specified in section 488.438."  Heritage Plaza Nursing Ctr., DAB No. 2829, at 21 (2017) (citing 42 C.F.R. § 488.438(e), (f); Senior Rehab. and Skilled Nursing Ctr., DAB No. 2300, at 19-20 (2010); Lakeridge Villa Healthcare Ctr., DAB No. 2396, at 14 (2011)).  Those factors are:  (1) the facility's history of noncompliance; (2) the facility's financial condition (indicating its ability to pay a CMP); (3) the factors specified in section 488.404, which include the seriousness (severity and scope) of the noncompliance, and "the relationship of the one deficiency to other deficiencies resulting in noncompliance"; and (4) the facility's degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  42 C.F.R. §§ 488.438(f), 488.404(b), (c)(1).

In this case, the ALJ determined that the amount of the CMP was more than justified based on the seriousness of Emery's staff's failure to recognize and timely respond to a grave injury which required acute medical care.  The ALJ noted that the penalty amount, $1,703 per day, "is only slightly more than one-fourth of the maximum amount that CMS is authorized to impose for a non-immediate jeopardy level deficiency."  ALJ Decision at 5-6.  The ALJ determined that there was no basis for reducing the penalty period because Emery did not offer evidence to show that it corrected its noncompliance prior to May 1, 2017.

We conclude that the ALJ's evaluation of the penalty amount is well-reasoned and supported by the record.  On appeal of the ALJ Decision, Emery did not produce evidence or argument that the per-day penalty amount should be reduced or challenge the duration of the penalty period.  We therefore affirm without further discussion the ALJ's determination that the CMP was justified based on Emery's noncompliance with the Medicare quality of care and quality of life requirements.

4.  The ALJ did not err by not addressing the two other deficiencies cited in the March 9, 2017 survey findings.

Emery contends that the ALJ erred by not reviewing the survey deficiencies cited under 42 C.F.R. § 483.45(f)(2) (Residents Free from Significant Medication Errors) and 42 C.F.R. § 483.50(a)(2)(ii) (Promptly Notify Physician of Lab Results), which Emery appealed.  RR at 22-23; Reply at 2, 9-10.  "By virtue of the fact that Emery filed an appeal and requested an ALJ decision on" these deficiencies, Emery argues, "it was entitled to have the ALJ consider the issues and render a decision."  RR at 23.  Emery asserts that the additional deficiencies could harm its reputation and financial status because state survey results are accessible by the public and used to evaluate quality on the Medicare Nursing Home Compare website.  Therefore, Emery asserts, it is entitled to have the deficiencies removed through its appeal, even if the CMP was justified based solely on Emery's quality of care and quality of life deficiency.  Id.; see also Reply at 9-10.

Page 17

Emery is mistaken in asserting that a facility is entitled to ALJ review by virtue of the fact that it has filed an appeal of a deficiency.  Section 498.3(b) of the regulations lists the "initial determinations by CMS" that are subject to review by an ALJ.  The initial determinations include a "finding of noncompliance leading to the imposition of enforcement actions specified in § 488.406 or § 488.820 . . . ."  Id. § 498.3(b)(13).  Those enforcement actions include the imposition of CMPs but do not include reputational harm resulting from the publication of deficiency findings.  Furthermore, the Board has explained that "[n]either Congress nor CMS has expanded a [facility's] hearing rights to include appeals based on the effects a deficiency finding has on a facility's [Medicare rating] or public reputation."  Generations at Regency Ctr., DAB No. 2950, at 6 (2019), and cases cited therein.

Furthermore, the Board has repeatedly held that where a facility has appealed noncompliance findings leading to the imposition of a CMP, an ALJ need not review all survey deficiencies to sustain the CMS determination if the facility's noncompliance under reviewed deficiencies justifies the penalty imposed.  See, e.g., Perry Cnty. Nursing Ctr., DAB No. 2555, at 19 (2014), aff'd, Perry Cnty. Nursing Ctr. v. U.S. Dep't of Health & Human Servs., 603 F. App'x 265 (5th Cir. 2015); Beechwood Sanitarium, DAB No. 1824, at 20-22 (2002), subsequent decision after remand, Beechwood Sanitarium, DAB No. 1906, modified on other grounds, Beechwood Restorative Care Ctr. v. Thompson, 494 F. Supp. 2d 181, 206 (W.D.N.Y. July 26, 2007) (rejecting facility's claim that the ALJ should have reviewed all of the deficiency findings and stating that the "relevant inquiry" "is whether there was substantial evidence to support the deficiencies that were relied on by the ALJ").  Rather, "this exercise of judicial economy is within the ALJ's discretion."  DAB No. 1824, at 22.

Moreover, a federal court of appeals has previously considered and rejected the argument that an ALJ decision that does not address all deficiencies cited in a survey "is unfairly prejudicial" to a facility because unreviewed deficiencies will "remain [on a facility's] public record."  Claiborne-Hughes Health Ctr. v. Sebelius, 609 F.3d 839, 847 (6th Cir. 2010), affirming Claiborne-Hughes Health Ctr., DAB No. 2223, at 3 n.2 (2008). In Claiborne-Hughes, the Sixth Circuit Court of Appeals acknowledged that a facility may have "trepidation in regards to the other remaining deficiencies which, though unreviewed, will remain on the public record."  Id.  Nevertheless, the court determined that "[i]t is neither arbitrary nor capricious for the agency to conclude that, in the interests of judicial economy, it will review only those deficiencies that have a material impact on the outcome of the dispute."  Id.  Consequently, once an ALJ determines that reviewed deficiencies support the sanctions that CMS imposed, as in this case, the ALJ is "free, in the interests of judicial economy, not to continue making additional rulings."  Id.

Page 18

Conclusion

For the reasons discussed above, we affirm the ALJ Decision.