Hill Country Rehab and Nursing Center, DAB CR5314 (2019)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose the following remedies against Petitioner, Hill Country Rehab and Nursing Center, a skilled nursing facility participating in the Medicare program:

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I. Background

My initial pre-hearing order imposed certain requirements on the parties. I ordered each party to provide me with written direct testimony, under oath or penalty of perjury, for each of the witnesses that it intended to call. I additionally directed each party to advise me in writing whether it desired to cross-examine any of its opponent’s witnesses.

Pursuant to that order CMS filed a pre-hearing exchange that included the written direct testimony of seven proposed witnesses. CMS’s Prehearing Exhibit and Witness Lists, January 14, 2019. In response, Petitioner filed a pre-hearing exchange in which it listed 16 proposed witnesses. Petitioner’s Witness List, March 21, 2019. Petitioner provided written direct testimony for none of these proposed witnesses. Neither CMS nor Petitioner filed a written request to cross-examine any of its opponent’s witnesses.

This case is ripe for a decision without an in-person hearing. There is no need to convene a hearing because Petitioner did not file a request to cross-examine CMS’s witnesses and because Petitioner offered no witnesses’ statements. Consequently, I decide this case based on the parties’ written submissions, including the evidence that they filed with their pre-hearing exchanges.

In its pre-hearing exchange CMS filed 28 proposed exhibits that it identified as CMS Ex. 1-CMS Ex. 28. Petitioner objected to my receiving CMS Ex. 22 on relevancy grounds. I overrule this objection. Among the allegations made by CMS is that Petitioner’s staff failed to timely respond to call lights and this exhibit is relevant to that allegation. I receive into evidence CMS Ex. 1-CMS Ex. 28.

Petitioner filed eight proposed exhibits that it identified as P. Ex. 1-P. Ex. 8. CMS did not object to my receiving these proposed exhibits and, therefore, I receive them into evidence.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether Petitioner failed to comply substantially with Medicare participation requirements, whether CMS’s determination of immediate jeopardy level noncompliance is clearly erroneous, and whether CMS’s remedy determinations are reasonable.

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B. Findings of Fact and Conclusions of Law

1. Petitioner’s Noncompliance with Regulatory Requirements

CMS premises its noncompliance findings and remedy determinations on findings made at surveys of Petitioner’s facility on July 19, 2018 (July survey) and on August 16, 2018 (August survey). Both surveys yielded multiple findings that Petitioner failed to comply substantially with Medicare participation requirements.

The more serious noncompliance findings arose from the July survey. CMS alleges that Petitioner manifested multiple deficiencies that were so serious as to pose immediate jeopardy for residents of Petitioner’s facility. The noncompliance findings arising from the August survey, albeit substantial, do not rise to the level of immediate jeopardy.

In this decision I address the findings made at each survey separately, beginning with the July survey.

(a.) The July Survey Noncompliance Findings

The July immediate jeopardy level noncompliance findings center around Petitioner’s treatment of a resident identified as Resident 1. I find that the evidence relating to the care that Petitioner’s staff gave to this resident overwhelmingly shows that the staff egregiously neglected to provide care to her consistent with her medical condition and needs. Over a period of about two months the staff failed again and again to address the resident’s steadily deteriorating health. Most notably, Petitioner’s staff never consulted with the resident’s treating physician about significant clinical changes in the resident’s condition, changes that should have prompted urgent consultation and intervention to assist this resident.

Petitioner admitted Resident 1 to its facility on May 2, 2018. The resident, 85 years old at the time of her admission, suffered from medical conditions including a history of acute renal failure due to dehydration, major depressive disorder, and a urinary tract infection. CMS Ex. 4 at 1-2; CMS Ex. 10 at 3. The resident had been hospitalized in December 2014 and in May 2016 for treatment of her renal failure and a urinary tract infection. CMS Ex. 10 at 3, 45-46.

Records of the resident’s weight on her admission to Petitioner’s facility conflict, in that one record shows her weight as being 189 pounds and another records it at 207 pounds. CMS Ex. 9 at 3; CMS Ex. 11 at 10. Petitioner’s staff initially assessed the resident as needing to lose some weight. A nutritional risk assessment form dated May 10, 2018, stated as a goal that over a period of about 90 days the resident should lose weight at an average rate of about 3-5 pounds per month. CMS Ex. 9 at 3-5. Ideally, the resident’s weight would decline to about 175 pounds, according to the staff’s assessment. Id.

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However, Resident 1’s weight did not decline gradually in the two months that followed her admission, but it declined precipitously. In a period of two months the resident lost 40 pounds. On May 9, 2018, the resident weighed 186 pounds, a three-pound loss in the first week after her admission, assuming her admission weight to have been 189 pounds. A week later, on May 16, 2018, the resident had lost seven additional pounds, with her weight recorded at 179 pounds. After another week, on May 23, 2018, the resident weighed 169 pounds, a 20-pound weight loss in the three weeks after her admission to Petitioner’s facility. CMS Ex. 11 at 10, 17.

The resident continued to lose weight at an alarming rate. On June 1, 2018, she weighed 166 pounds. On July 1, 2018, the resident weighed 149 pounds. CMS Ex. 11 at 10, 17.

The resident’s meal intake records show that the resident was not eating well between her admission in May and July 2018. CMS Ex. 12 at 1-17. Thus, Petitioner’s staff not only knew that the resident was losing weight at an alarming rate, but it knew that the weight loss was related to the resident’s poor appetite.

Resident 1’s precipitous weight loss and lack of appetite were significant and ongoing changes in the resident’s condition. The resident’s dramatic decline should have prompted Petitioner’s staff to assess the resident in order to determine the cause. It mandated Petitioner’s staff to consult, not once, but often, with the resident’s treating physician.

What did Petitioner’s staff do to address the resident’s precipitous weight loss? The evidence shows that it did nothing aside from notifying the resident’s family about the resident’s weight loss and offering the resident a nutritional supplement (Med Pass) that she often refused to consume. CMS Ex. 2 at 46; CMS Ex. 7 at 11. Petitioner’s staff failed to consult with the resident’s physician about the resident’s loss of appetite and her weight loss during the two-month period between May and July 2018. CMS Ex. 11 at 19. The staff did not assess the resident to determine an underlying cause for the resident’s loss of appetite and weight. The staff had no idea what caused the resident’s poor appetite because it made no effort to ascertain why the resident wasn’t eating.2  Finally, the staff failed to devise a plan of care to address the resident’s rapidly declining weight.

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The evidence shows not only that Petitioner’s staff neglected to address Resident 1’s sudden weight loss but also that it neglected the resident in other critical respects. The staff never reported to the resident’s physician the abnormal results of laboratory tests performed on June 7, 2018, revealing that the resident manifested an abnormally low blood glucose level. CMS Ex. 11 at 10, 12.

On July 9, 2018, Resident 1 was sent to a hospital. The resident was restless, moaning, and the lining of her mouth was acutely inflamed. She had distended neck veins, pitting edema in her legs and ankles, and was nonresponsive. CMS Ex. 10 at 1-4. Her laboratory tests revealed several significant abnormalities. The admitting diagnoses included acute or chronic renal failure due to inadequate oral intake. Id. From these findings I infer that malnutrition was a significant contributing factor to the resident’s condition on July 9, 2018. The resident expired about a week later.

The neglect of Resident 1 had its roots in Petitioner’s staff’s failure to address all of the resident’s problems from the inception of her stay at Petitioner’s facility. Although the resident had a history of renal failure, the staff did not record that history when the resident was admitted. CMS Ex. 5 at 22. Petitioner’s care plan for Resident 1 consequently did not direct the staff to monitor or assess the resident for possible renal failure. CMS Ex. 6.

The care plan that the staff created for the resident directed that the resident’s eating patterns be monitored, and specifically, for persistent weight loss. But, and as I have found, Petitioner’s staff did nothing to address that weight loss aside from recording it and offering a nutritional supplement to the resident.

Petitioner’s neglect of Resident 1 establishes multiple violations of Medicare participation requirements. These violations comprise failures to comply with the following: 42 C.F.R. §§ 483.10(g)(14)(i)-(iv), (g)(15), which requires facilities to consult with the resident’s physician when there is a significant change in the resident’s status; 483.12(a)(1), which requires that residents be free from abuse and neglect; 483.24, which mandates a facility to provide each of its residents with the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being; 483.25, which directs a skilled nursing facility to ensure that its residents receive treatment and care in accordance with professional standards of practice; 483.25(g)(1)-(3), which requires a skilled nursing facility to assure that its residents maintain acceptable parameters of nutrition and body weight; 483.35(a)(3)-(4), (c), which requires that a skilled nursing facility have sufficient nursing staff with the appropriate competencies and skills to provide nursing care to assure resident safety and to attain, or maintain, the highest practicable physical, mental, and psychosocial well-being; and 483.50(b)(2)(i)-(ii), which requires a skilled nursing facility promptly to notify a resident’s physician of diagnostic testing results that fall outside of clinical reference ranges.

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The common thread to all of this noncompliance is Petitioner’s neglect of Resident 1’s needs. Not only did Petitioner fail to identify and plan for the resident’s most serious problem – renal failure – but its staff failed persistently to recognize and address signs that the resident was in a state of serious and precipitous decline. “Neglect” is defined by regulation to mean the failure to provide goods and services necessary to avoid physical harm, pain, mental anguish, or emotional distress. 42 C.F.R. § 488.301. Petitioner’s disregard of Resident 1’s needs meets that definition. Indeed, it is neglect under any commonly understood meaning of the term.

Not only did Petitioner neglect Resident 1’s needs, it was derelict in providing even the most basic care to the resident. The resident’s precipitous weight loss should have triggered all sorts of alarms and yet, Petitioner’s staff did virtually nothing to address it. The failure to consult with the resident’s physician is particularly shocking.

The evidence strongly supports CMS’s determination that these regulatory violations were so significant as to amount to immediate jeopardy level noncompliance. “Immediate jeopardy” means noncompliance that causes or is likely to cause serious injury, harm, impairment, or death to a resident of a facility. Petitioner’s neglect of Resident 1, as is embodied in its regulatory violations, created a likelihood that the resident would suffer serious harm or worse. By the time that Resident 1 was hospitalized on July 9, 2018 – after a two-month stay at Petitioner’s facility – her condition had deteriorated to the point that she was near death. Petitioner’s staff’s failure to attend to the resident’s needs assured that the deterioration that she was experiencing would seriously harm her. This resident may have had little chance of improvement given her age and the seriousness of her condition. But, whatever chance she had was significantly reduced by Petitioner’s staff’s neglect of her needs.

I have considered Petitioner’s arguments in opposition to CMS’s findings of immediate jeopardy level noncompliance and I find them to be without merit.3

Petitioner does not explicitly challenge CMS’s findings of immediate jeopardy. Although Petitioner argues that it complied substantially with participation requirements, it does not contend that CMS’s immediate jeopardy findings are clearly erroneous if, in fact, it was noncompliant with participation requirements.

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Petitioner asserts that the resident’s physician knew or should have known about her precipitous weight loss because “the evidence shows [the physician] saw the Resident on various occasions.” Petitioner’s brief at 8. There is nothing in the evidence to show that the physician examined Resident 1 or consulted with Petitioner’s nursing staff on the occasions when he saw her.

The fact that a physician may have “seen” Resident 1 provides Petitioner no defense to its staff’s dereliction of their duties to assess and consult. The professional staff is the physician’s eyes and ears. The staff’s primary duties include assessing residents and demanding consultation with residents’ physicians when significant changes occur. That is, in fact, the essence of skilled nursing care. Failure to perform these duties – as occurred in the case of Resident 1 – marked a fundamental failure by Petitioner’s nursing staff to perform the most basic professional duty.

In a similar vein Petitioner contends that abnormal laboratory results were sent to Resident 1’s treating physician and that he initialed them, indicating that he saw those results. Petitioner’s brief at 10. But, even if the doctor evaluated those test results, that provides Petitioner with no excuse for its staff’s failure to perform its most basic duties. When the staff learned of the abnormal results, its obligation was immediately to inform the physician of them, to assess the resident, and to discuss possible treatment options with the physician. Petitioner’s staff did none of that. Petitioner asserts that the nursing staff did communicate with the treating physician about abnormal laboratory results obtained on July 9, 2018, the date when Resident 1 was sent to the hospital. But, that not only does not excuse Petitioner’s staff from its previous failure to consult about abnormal laboratory results, it underscores why doing so was so important.

Petitioner argues also that its staff’s duties were limited only to consulting with Resident 1’s physician about a significant change in the resident’s condition, citing 42 C.F.R. § 483.10(g)(14). It argues that its staff had no obligation to consult with Resident 1’s physician because the changes that she manifested weren’t “significant” given her underlying medical issues. Petitioner’s brief at 8.

This argument defies reality. As sick as Resident 1 may have been on admission to Petitioner’s facility, she declined dramatically and precipitously during the approximately eight weeks of her stay. She lost several pounds per week during her stay and about 20 percent of her body weight overall. If nothing else mandated the staff to consult with the treating physician, that precipitous weight loss certainly did. But, in fact, there were other signs of change that were significant, including abnormal laboratory results.

Petitioner argues that its staff kept Resident 1’s family apprised of the resident’s decline and weight loss. Petitioner’s brief at 7. That may be so, but that doesn’t excuse Petitioner’s failure to consult with Resident 1’s treating physician about the weight loss and the other problems that the resident manifested during her stay. The duty to consult

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with a treating physician about a significant change in a resident’s condition exists independently from the duty to notify a resident’s family about such change. 42 C.F.R. § 483.10(b), (g)(14)(i)-(iv), (g)(15).

Running throughout Petitioner’s argument is its contention that the resident’s treating physician was well aware of her condition and her deterioration. Petitioner essentially makes a “no harm, no foul” argument, contending that there could have been no harm to Resident 1 from Petitioner’s staff’s derelictions because the physician knew independently about the resident’s condition.

This argument finds no basis either in fact or in law. Petitioner speculates about how well the physician was apprised of the resident’s condition without offering evidence to support its speculation. Petitioner produced no statement from the physician. Whether he knew about the resident’s dramatic decline during the two months of her stay is guesswork, predicated only on Petitioner’s assertion that the physician “saw” the resident from time to time and reviewed facility charts. The record is devoid of evidence showing what the physician actually knew. Indeed, the record suggests that the resident’s physician may have been unaware of the resident’s weight loss prior to being advised of that loss by the resident’s daughter on the morning of July 6, 2018. CMS Ex. 11 at 19. The record certainly does not suggest that the physician would have simply maintained his previous treatment decisions had Petitioner’s staff consulted with him about the extent of Resident 1’s deterioration.

Furthermore, nothing in the regulations suggests that a physician’s alleged independent knowledge of a resident’s condition gives a facility’s professional staff a pass from performing its basic duties to assess and consult in the event of a significant change in a resident’s condition. One reason for the regulatory requirements of assessment and consultation is to assure that a physician knows exactly what is going on with his or her patient. It is not an excuse for failure to comply to contend, as Petitioner contends, that the staff is freed from its responsibilities because the physician might be personally familiar with the resident’s case.

(b.) The August Survey Noncompliance Findings

CMS assessed all of the several findings of noncompliance made at the August survey as being substantial but not at a level that posed immediate jeopardy for Petitioner’s residents. A finding of substantial noncompliance at a level that is less than immediate jeopardy means that the deficiency, at the least, poses a potential for more than minimal harm to a resident. It is unnecessary to demonstrate actual harm in order to establish a deficiency that is substantial noncompliance, albeit not at the immediate jeopardy level (although some deficiencies may be so egregious as to cause actual harm to a resident without arising to the scope and severity of immediate jeopardy).

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Petitioner argues that the scope and severity of some of the non-immediate jeopardy level deficiencies identified at the August survey is excessive and should be lowered. However, as a matter of law, Petitioner has no right to challenge the scope and severity of a non-immediate jeopardy level deficiency. 42 C.F.R. § 498.3(b)(14). It may only contest the existence of one or more of these deficiencies. Id.

Petitioner did not address in its pre-hearing brief several of the deficiencies asserted by CMS. These are Petitioner’s failures to comply substantially with the following regulations: 42 C.F.R. § 483.24(a)(2), a failure by Petitioner’s staff to provide required incontinence care to several residents; 42 C.F.R. § 483.60(d)(4)-(5), a failure by the staff to address its residents’ needs by providing them with food that accommodates food allergies; and 42 C.F.R. § 483.60(i)(1)-(2), a failure by Petitioner’s staff to serve food in a manner that complied with professional standards for food service safety (staff was observed carrying plates of food to residents with bare fingers resting on the surfaces of the plates).

Petitioner disputes CMS’s finding that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.60(d)(1)-(2). The allegation is that Petitioner’s staff failed to take required food serving temperatures. However, it does not deny that it was noncompliant, but argues that the scope and severity of its noncompliance assessed by CMS is too high. I do not have authority to address this issue. I may only address scope and severity of noncompliance where that finding addresses the possible range of remedies (i.e., immediate jeopardy level noncompliance vs. non-immediate jeopardy level noncompliance). 42 C.F.R. § 498.3(b)(14). That issue is not before me here.

All of these unchallenged deficiencies are substantial and all of them are administratively final by virtue of Petitioner’s failure to challenge them. Remedies, including civil money penalties, may be premised on these deficiencies.

As for the remaining non-immediate jeopardy level deficiencies, they are plainly supported by the evidence. Indeed, Petitioner doesn’t dispute the fact findings that led to the deficiency citations. Rather, it argues that the impact of these additional deficiencies was insubstantial. I disagree, for the reasons stated below.

CMS asserts that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.10(f)(10)(i)-(ii). The regulation states that residents of skilled nursing facilities have the right to manage their own financial affairs. CMS contends that Petitioner failed to comply with this regulation because Petitioner failed to make timely payments to some residents from trust accounts that it maintained for these residents’ personal use. According to CMS, two of Petitioner’s residents reported having to wait up to three days from the beginning of each month to obtain their monthly trust fund payments.

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Petitioner doesn’t deny the allegations. Instead, it asserts that no harm resulted from these delayed payments because the residents eventually received their money. Petitioner’s brief at 11. I disagree. This was not money that Petitioner had authority to allocate as it pleased. The money in question belonged to the residents and they had every right to receive it timely. Failure by Petitioner to allocate that money on time plainly violated these residents’ rights and that violation was substantial and not trivial.

CMS argues that Petitioner did not comply substantially with the requirements of 42 C.F.R. § 483.60. The regulation requires a skilled nursing facility to provide each of its residents with a well-balanced diet that meets his or her daily nutritional and special dietary needs. CMS alleges that Petitioner failed to comply with this regulation because its kitchen staff failed to follow directions for preparing pureed meals for certain residents. Rather than measuring quantities of food as was required by these residents’ prescribed diets, the staff guessed at the correct proportions of food and pureed that.

Obviously, diets are prescribed for a reason. The point of a directed diet for pureed food is that a resident has a need to consume only food that is pureed and in certain proportions. Failure to comply with dietary directions poses a potential for harm.

Again, Petitioner doesn’t dispute the facts. Rather, Petitioner argues that there is no evidence that providing unmeasured food to residents posed even the potential for harm to them. Petitioner’s brief at 11-12. That assertion disregards the fact that the residents whose care is at issue were prescribed pureed diets of specific proportions and amounts based on their individual nutritional needs. Those diets were based on a dietician’s assessment of what the residents needed. Petitioner merely speculates when it asserts that deviation from the prescribed amounts posed no potential for harm.

CMS asserts that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.90(i). The regulation requires a facility to provide a safe, comfortable, and sanitary environment for its residents, staff, and the public. CMS contends that Petitioner violated this regulation in two instances. First, CMS contends that Petitioner failed to maintain a resident’s room door so that it swung all the way open. Rather, according to CMS, the door stuck in the halfway position. Second, according to CMS, one of Petitioner’s resident rooms had non-functioning window blinds, with damaged slats held together by duct tape.

Once again, Petitioner doesn’t contest the facts. It asserts that nothing in various enumerated subsections of the regulation covers the condition of facility doors and windows and that, consequently, CMS’s noncompliance citation is inapplicable to the facts. It argues additionally that there was nothing inherently unsafe resulting from its maintenance deficiencies. Petitioner’s brief at 12.

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Petitioner misreads the regulation. Whether or not it contains subsections that specifically address doors and/or window blinds, the preamble of the regulation plainly addresses all safety, comfort, and sanitation aspects of a skilled nursing facility. That regulatory language plainly covers the maintenance failures identified by CMS.

Second, I disagree with Petitioner’s assertion that there was no potential for harm resulting from its maintenance failures. An amputee occupied the room with the broken door. Walking through that partially obstructed doorway created a potential for more than minimal harm to anyone who didn’t have full use of his or her legs. As for the other failure, the issue posed by the broken blinds was a matter of personal comfort. Residents of a facility are entitled to be able to regulate the amount of light entering their rooms. The resident of the room in question asserted, without dispute, that the blinds had been broken for a couple of months. CMS Ex. 15 at 24-25.

Finally, CMS contends that Petitioner failed to comply with the requirements of 42 C.F.R. § 483.90(a). This section incorporates the National Fire Prevention Association Life Safety Code into the regulations. CMS asserts that Petitioner failed to comply with a Life Safety Code requirement in that it did not have automatic sprinklers in certain parts of its facility, specifically, in two shower stalls and a covered front porch. CMS Ex. 28 at 4.

Petitioner does not dispute CMS’s allegations. It contends that there was not even a potential of minimal harm resulting from its failure to provide sprinklers, reasoning that there is no need to have sprinklers in a shower stall. Petitioner’s brief at 13. But, that assertion does not address Petitioner’s failure to have sprinklers in another part of its building. I find that Petitioner failed to comply with the requirements of the Life Safety Code given its failure to rebut the presumption that a code violation is a fire safety hazard.

2. Remedies

Petitioner did not offer any evidence to prove that it corrected its deficiencies sooner than CMS determined to be the case.4  The record establishes that Petitioner manifested immediate jeopardy level deficiencies for a period that began on May 16, 2018 and that continued through July 9, 2018. It manifested non-immediate jeopardy level deficiencies for a period that began on July 10, 2018 and that continued through August 17, 2018.

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The issue remains whether the daily penalty amounts of $8,899 imposed by CMS to remedy immediate jeopardy level deficiencies and $505 imposed by CMS to remedy non-immediate jeopardy level deficiencies are reasonable. I find that they are.

Regulations specify that daily civil money penalties for immediate jeopardy level and non-immediate jeopardy level deficiencies fall within specified ranges. The then-permissible range for daily immediate jeopardy level civil money penalties was from $6,394-$20,965. The maximum permissible daily penalty amount for non-immediate jeopardy level deficiencies was $6,289. 42 C.F.R § 488.438(a)(1)(i)-(ii); 45 C.F.R. § 102.3.

When measured against these ranges the penalty amounts that CMS determined to impose are modest. The immediate jeopardy level penalties are barely more than one-third of the maximum permissible amount. The non-immediate jeopardy level penalties are less than 10 percent of the maximum permissible amount for such penalties.

Deciding what is a reasonable penalty amount depends on consideration of enumerated regulatory factors. 42 C.F.R. §§ 488.438(f)(1)-(4); 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)). These factors may include the seriousness of a skilled nursing facility’s noncompliance, its compliance history, its culpability, and its financial condition. 

These factors support the penalties that CMS determined to impose. The seriousness of Petitioner’s noncompliance, in and of itself, justifies the immediate jeopardy level penalty amount. Petitioner’s neglect of Resident 1’s condition was egregious and it robbed that resident of the opportunity to obtain care that very well could have forestalled that resident’s demise. For weeks Petitioner’s staff stood by as this resident’s condition deteriorated. The nurses at Petitioner’s facility had a duty to document, assess, and report the alarming changes in the resident’s condition. They did not do so. Rather, they left this resident helpless as she went downhill, without consulting with the resident’s physician and without assessing the resident’s condition in any meaningful way.

I find also that Petitioner’s culpability for the immediate jeopardy level noncompliance is very high. What Petitioner’s nursing staff failed to perform consisted of basic nursing duties, the very essence of nursing care.

I find that the number of Petitioner’s regulatory violations more than justifies the relatively minimal non-immediate jeopardy level penalty amount. Even after the July survey Petitioner continued to manifest multiple deficiencies. Some of these deficiencies posed serious risks for Petitioner’s residents. I am particularly struck by Petitioner’s failure to provide incontinence care for some of its residents. The facts – not disputed by Petitioner – established that residents of Petitioner’s facility often had to wait a half hour or more for incontinence care. During that time they lay or sat in their own urine or

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feces, while waiting for assistance. The embarrassment and unpleasantness that such delays might cause is evident.

Petitioner contends that the total amount of the civil money penalties puts an impossible financial burden on it. Petitioner’s brief at 14. For this assertion it relies on its December 14, 2018 bankruptcy petition in federal court.

However, Petitioner has not offered any evidence establishing its financial condition. It has not shown me its assets or its liabilities. It has not filed a certified financial statement. It has provided no evidence as to its cash flow. Indeed, it has not provided any evidence as to the reasons for, or the status of, its bankruptcy claim. I find no basis to mitigate the penalty amounts absent any evidence of Petitioner’s actual financial condition.

1. CMS advises me that the total civil money penalty amount is $509,140.  Respondent’s Prehearing Brief (CMS’s brief) at 1.  Petitioner asserts, without offering evidence or explanation, that the total penalty amount was reduced to $498,740.  Petitioner’s Prehearing Brief (Petitioner’s brief) at 14.  I do not address this discrepancy in the asserted total penalty amount in this decision except to say that Petitioner did not prove that its financial condition precludes it from paying either total amount.  I base my decision on the penalties that CMS imposed for each day of Petitioner’s noncompliance and the reasonableness of those daily penalty amounts.  Whatever the total penalty amount may be, it flows directly from my findings as to reasonableness of daily penalties and duration of noncompliance.
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2. One possible cause of the resident’s precipitous decline may have been the reduction in administration to her of Seroquel, an anti-psychotic medication.  The reduction evidently was made pursuant to a physician’s order, on or about May 25, 2018.  CMS Ex. 7 at 4, 9, 11.  Petitioner’s staff should have noted any changes in the resident’s behavior – including loss of appetite – after that reduction and reported them to the resident’s physician.  It failed to do so.
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3. CMS made an additional finding of non-immediate jeopardy level noncompliance based on the July survey, alleging that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.20.  I do not address this allegation because Petitioner’s several immediate jeopardy level violations are more than sufficient to justify the penalties that CMS imposed based on the July survey.
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4. Petitioner does assert that if it is noncompliant, the start of that noncompliance is later than May 16, 2018, the date determined by CMS.  The undisputed material facts establish that by May 16, only two weeks after her admission, Resident 1 had sustained a weight loss of 10 pounds.  I find these undisputed facts are more than sufficient to establish that Petitioner’s noncompliance began no later than May 16, 2018.
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