St. Petersburg Nursing and Rehabilitation, DAB CR5878 (2021)

DECISION

In this case, the responsible nurse at a long-term-care facility disregarded a resident’s full code status, failed to administer cardiopulmonary resuscitation, and then falsely claimed that she had done so. 

Petitioner, St. Petersburg Nursing and Rehabilitation, is a long-term care facility, located in St. Petersburg, Florida, that participates in the Medicare program.  Based on a complaint investigation survey, completed January 4, 2019, the Centers for Medicare and Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare requirements, and that its deficiencies posed immediate jeopardy to resident health and safety.  CMS has imposed civil money penalties (CMPs) of $11,030 per day for 14 days of immediate jeopardy and $215 per day for 47 days of substantial noncompliance that did not pose immediate jeopardy. 

I find that the facility was not in substantial compliance with Medicare program requirements, its deficiencies posed immediate jeopardy to resident health and safety, and the penalties imposed are reasonable.

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Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301. 

The Secretary contracts with state survey agencies to survey skilled nursing facilities in order to determine whether they are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys, and must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).

Here, responding to an anonymous complaint, surveyors from the Agency for Health Care Administration in Florida (state agency) completed a complaint investigation survey on January 4, 2019.  Based on their findings, CMS determined that the facility did not comply substantially with the following program requirements:

• 42 C.F.R. § 483.12(a)(1) (Tag F600 – freedom from abuse and neglect) cited at scope and severity level J (isolated instance of noncompliance that poses immediate jeopardy to resident health and safety);
• 42 C.F.R. § 483.12(c)(1), (4) (Tag F609 – freedom from abuse and neglect:  reporting alleged violations) cited at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);  and
• 42 C.F.R. § 483.24(a)(3) (Tag F678 – quality of life:  cardio-pulmonary resuscitation) cited at scope and severity level J.

CMS Exs. 1, 2.1

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CMS subsequently determined that the facility returned to substantial compliance on February 6, 2019.  CMS Ex. 19.  CMS imposed against the facility penalties of $11,030 per day for 14 days of immediate jeopardy (December 7 through 20, 2018) and $215 per day for 47 days of substantial noncompliance that did not pose immediate jeopardy (December 21, 2018, through February 5, 2019).   

The parties filed pre-hearing briefs (CMS Br.; P. Br.).  With its pre-hearing brief, CMS submitted 23 exhibits (CMS Exs. 1-23), including an unsigned statement attributed to a proposed witness (CMS Ex. 21).  With its pre-hearing brief, Petitioner submitted seven exhibits (P. Exs. 1-7), including unsigned statements attributed to six proposed witnesses (P. Exs. 1-6). 

Petitioner objected to my admitting CMS Ex. 1 (the Statement of Deficiencies) “as substantive proof” of its contents, alleging that it includes hearsay, as well as irrelevant and inaccurate information.  I overruled the objection, noting that the federal rules of evidence do not apply in this forum, and I am allowed to admit hearsay.  42 C.F.R. § 498.60(b).  However, the parties were free to argue about what, if any, weight I should give the document, and I referred them to the Departmental Appeals Board’s decision in Evergreen Nursing Care Ctr., DAB No. 2069 at 13 (2007) for a discussion of the issue.  Order Summarizing Pre-hearing Conference at 3 (Mar. 3, 2021).

With respect to the statements attributed to the parties’ witnesses (CMS Ex. 21 and P. Exs. 1-6), none of those documents were signed or sworn to, as required by my pre-hearing order.  Acknowledgment and Pre-hearing Order at 6 (¶ 7) (Apr. 8, 2019).  The parties offered no good cause for failing to comply with my order.  I determined that, as evidence, the unsigned documents are meaningless, and I declined to admit them.  Neither party objected.  Order Summarizing Pre-hearing Conference at 3; see 42 C.F.R. § 498.50(b).  The record nevertheless includes signed and/or sworn statements from all but one of Petitioner’s listed witnesses.  CMS Exs. 10-13, 16.  These statements are similar, if not virtually identical, to those set forth in Petitioner’s proposed exhibits.  P. Exs. 1-4, 6.  So, for all intents and purposes, excluding the proffered exhibits has little to no impact on Petitioner’s case.  

I admitted into evidence CMS Exs. 1-20, 22-23 and P. Ex. 7. 

The parties also filed closing briefs (CMS Cl. Br.; P. Cl. Br.).

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Because the parties have not presented any valid witness testimony, an in-person hearing would serve no purpose.  I therefore decide this case based on the written record.  See Order Summarizing Pre-hearing Conference at 4.

Issues

The facility has not appealed the finding of substantial noncompliance for failing to report allegations of abuse or neglect.  42 C.F.R. § 483.12(c)(1) and (4).  I therefore find that, from December 7, 2018, through February 5, 2019, the facility was not in substantial compliance with Medicare program requirements.  Because the facility does not challenge the $215 per day penalty, I sustain it. 

The remaining issues are:

1. From December 7, 2018, through December 20, 2018, was the facility in substantial compliance with 42 C.F.R. §§ 483.12(a)(1) and 483.24(a)(3);
2. If, from December 7 through 20, 2018, the facility was not in substantial compliance with those program requirements, did those failures pose immediate jeopardy to resident health and safety; and
3. Is the penalty imposed – $11,030 per day from December 7 through 20, 2018 – reasonable.

Discussion

1.    The facility was not in substantial compliance with sections 483.12 and 483.24(a)(3) because one of its nurses declined to administer CPR to a resident who was “full code.”2

Program requirement:  42 C.F.R. § 483.12 (Tag F600).  A facility resident has the right to be free from abuse, neglect, and exploitation.  42 C.F.R. § 483.12.  “Abuse” is defined as the “willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain, or mental anguish.”  Abuse includes depriving the resident, regardless of any mental or physical condition, “of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being.”  “Willful” means that the individual acted deliberately, not that the individual must have intended to inflict injury or harm.  42 C.F.R. §§ 483.5, 488.301 (emphasis added).

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“Neglect” is the failure of the facility, its employees, or service providers to provide a resident with the goods and services necessary to avoid her suffering physical harm, pain, mental anguish, or emotional distress.  42 C.F.R. §§ 483.5, 488.301.     

Program requirement:  42 C.F.R. § 483.24(a)(3) (Tag F678).  The “quality of life” regulation characterizes “quality of life” as a “fundamental principle” that applies “to all care and services provided to facility residents.”  Under the Medicare statute and this regulation, the facility must care for its residents “in such a manner . . . as will promote maintenance or enhancement of the quality of life of each resident”; each resident must receive, and the facility must provide, necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and person-centered care plan.  Act § 1819(b); 42 C.F.R. § 483.24.  Among other specific requirements, personnel must provide basic life support, including CPR, to a resident requiring such emergency care, prior to the arrival of emergency medical personnel, and subject to physician orders and the resident’s advance directives.  42 C.F.R. § 483.24(a)(3). 

Facility policy:  advance directives.  The facility had in place a written policy on “Advance Directives.”  Among its provisions: 

• The admitting nurse must discuss with the resident or her responsible party any current advance directives, and, if they are available, place them in the new resident’s medical record, documenting this in a nurse’s note.  If the resident is unable to understand the discussion, and a responsible party is not available, the facility’s social services department, or its designee, will follow up with the resident.  The admissions or social services department will provide written information about advance directives.
• Each resident must be informed that the facility does not condition its providing care or otherwise discriminate against an individual based on whether the individual has executed an advance directive.
• Within 72 hours of admission, the social services director or designee must discuss with the resident or responsible party the existence or development of any advance directives and must document having done so in the social services progress notes.
• The resident’s medical record must prominently display information about whether the resident has executed an advance directive.
• The policy defines the advance directive “Do Not Resuscitate” (DNR) as indicating that, in case of respiratory or cardiac failure, the resident, legal guardian, health care proxy, or representative (sponsor) has directed that no cardiopulmonary resuscitation or other life-saving methods are to be used. 

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• During the initial assessment period, and quarterly thereafter, the interdisciplinary team must review, with the resident or responsible party, the resident’s advance directives to ensure that they are still the wishes of the resident.  Such reviews are made during the initial and quarterly assessment process and recorded in the resident’s social services progress notes. 
• Changes to or revocations of a directive must be submitted, in writing, to the administrator, who may require new documents.  The care plan team must be informed so that appropriate changes can be made in the resident assessment and care plan.
• The nursing department must notify the attending physician of advance directives so that the appropriate orders can be documented in the resident’s medical record and plan of care.
• The nursing department must inform emergency medical personnel of a resident’s advance directive regarding treatment options and give a copy of the directive when the resident is transferred from the facility via ambulance or by other means.
• The staff development coordinator is responsible for scheduling advance directive training classes for new staff and for scheduling annual advance directive in-service training programs to ensure that staff remain informed about residents’ rights to formulate advance directives and facility policies governing those rights.
• Inquiries concerning advance directives should be referred to the administrator, director of nursing, or social services director.

CMS Ex. 8 at 6-7.

Facility policy:  do not resuscitate (DNR) order.  According to its policy, the facility will not use cardiopulmonary and related emergency measures to maintain life functions on a resident when there is a Do Not Resuscitate Order in effect.  CMS Ex. 8 at 9.

Facility policy:  cardiopulmonary resuscitation (CPR).  The facility policy requires personnel to complete training on initiating cardiopulmonary resuscitation and basic life support.  If an individual is found unresponsive, the policy requires that a licensed staff member, who is certified in CPR, initiate CPR, unless:  1) it is known that the resident has a DNR order that specifically prohibits CPR, or 2) there are obvious signs of irreversible death (e.g., rigor mortis). 

If the resident’s DNR status is unclear, CPR must be initiated until it is determined that there is a DNR and a physician’s order not to administer CPR.

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If the first responder is not CPR-certified, that person must call 911 and follow the operator’s instructions until a CPR-certified staff member arrives. 

The facility’s procedures for administering CPR explicitly incorporate the steps covered in the 2010 American Heart Association Guidelines for Cardiopulmonary Resuscitation and Emergency Cardiovascular Care.  Those guidelines list five obvious signs of irreversible death:  rigor mortis, dependent lividity, decapitation, transection, decomposition.  CMS Ex. 22 at 4; see Green Valley Healthcare and Rehab. Ctr., DAB No. 2947 at 7 (2019) (listing as signs of irreversible death:  rigor mortis, lividity, tissue decomposition, obvious fatal trauma). 

The facility was also required to select and identify a CPR team for each shift.  To the extent possible, a designated team lead is responsible for coordinating the rescue effort and directing other team members.  The team consists of “at least one nurse, one LPN/LVN, and two CNAs,” all of whom have received CPR training and certification. 

If an individual is found unresponsive, staff must assess for abnormal breathing or the absence of breathing.  If sudden cardiac arrest is likely, the appropriate staff member must begin CPR and instruct a staff member to activate the emergency response system and call 911.  Staff must also retrieve the automatic external defibrillator, verify the resident’s code status, and “[i]nitiate the basic life support (BLS) sequence of events” (chest compressions, airway, breathing).  CMS Ex. 8 at 10-11.

Program requirement:  42 C.F.R. § 483.12(c)(1) and (4).3   In response to allegations of abuse, neglect, exploitation, or mistreatment, the facility must ensure that all such alleged violations are reported “immediately.”  If the allegation involves abuse or results in serious bodily injury, it must be reported within two hours after the allegation is made; if the events that cause the allegation do not involve abuse and do not result in serious bodily injury, it must be reported within 24 hours.  Staff must report to the facility administrator or designee and to other officials, including the state agency and adult protective services, in accordance with state law, through established procedures.

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The facility must also report the results of all investigations to the administrator or designee and to other officials, in accordance with state law, within five working days of the incident.  If the alleged violation is verified, the facility must take appropriate corrective action.

Facility policy:  abuse investigation and reporting.  Consistent with the regulation, the facility policy mandates that all reports of resident abuse and neglect be reported promptly to local, state, and federal agencies and must be thoroughly investigated by facility management.  The investigation findings must also be reported.  CMS Ex. 8 at 3.

All alleged violations involving abuse or neglect must be reported immediately – within two hours, if the alleged violation involves abuse or serious bodily injury, and within 24 -hours if it does not.  Staff must report to:  the facility administrator or designee; the state licensing/certification agency; the local state ombudsman; the resident’s representative; adult protective services; law enforcement officials; the resident’s attending physician; and the facility medical director.  CMS Ex. 8 at 4. 

The policy lists the information that must be included in the report:  resident name; resident room number; the type of abuse; the date and time of the incident; names of all involved in the incident; and the facility’s immediate action.  CMS Ex. 8 at 4.  If the allegations are founded, the employee involved will be terminated, appropriate licensing boards will be notified, and the resident or representative will be informed of the outcome of the investigation.  CMS Ex. 8 at 5. 

The policy also details the responsibilities of the facility administrator and the investigator.  CMS Ex. 8 at 3. 

Resident 3 (R3).  R3 was a 66-year-old woman, admitted to the facility on December 4, 2016.  She was undeniably ill, suffering from chronic obstructive pulmonary disease, asthma, and lung cancer, among other impairments.  CMS Ex. 6 at 1, 7, 21, 34, 42, 49.  She required supplemental oxygen to assist her breathing.  CMS Ex. 6 at 17.  She was alert, with some periods of confusion, but her speech was clear, and she was capable of making her needs known.  CMS Ex. 6 at 31, 33, 35.  She required extensive assistance (one-person physical assist) with bed mobility and transfers, dressing, eating, toilet use, and personal hygiene.  CMS Ex. 6 at 37.  She was totally dependent on staff for bathing.  CMS Ex. 6 at 38.  She required a walker or wheelchair.  CMS Ex. 6 at 38, 39.    

R3 smoked cigarettes, was assessed as capable of smoking safely, and, throughout her stay at the facility, expressed no interest in quitting.  CMS Ex. 6 at 13-14, 21, 51, 56, 61, 66.

From the time of her admission, R3 did not have a DNR order; she was Full Code and assessed as “alert and oriented and . . . capable of making informed consent.”  CMS Ex. 6

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at 3, 6-7, 21, 34; CMS Ex. 18 at 3 (reporting a December 4, 2018 physician’s order that said R3 was “Full Code”).

Based on physical assessments, conducted September 14, 2018, and October 19, 2018, by Dr. Stephen Ducker, R3’s conditions were relatively stable.  CMS Ex. 6 at 48-52, 53-57.4

An assessment dated November 12, 2018, indicates that R3 was refusing chemotherapy treatments; her functioning and appetite were in decline; her confusion increased.  The examining nurse practitioner, Marilyn Bellamy, ARNP, questioned R3’s mental capacity to decline treatment and recommended a psychiatric assessment to evaluate her mental capacity and to assist with obtaining a state-appointed healthcare surrogate for decision-making.  Nurse Practitioner Bellamy also noted R3’s increased episodes of hypoxia (inadequate oxygen).  CMS Ex. 6 at 58-62.       

In a follow-up assessment, on November 16, 2018, Dr. Ducker reported that R3 was on chronic oxygen therapy but suffered no dyspnea (shortness of breath).  He also reported that she continued her oncology treatments, and that her appetite was improving.  He reported no dizziness or syncope (temporary loss of consciousness).  CMS Ex. 6 at 63-67.

At 4:30 p.m. on November 23, 2018, a nurse aide found R3 slouched in a chair, blue in color, and unresponsive.  She called Licensed Practical Nurse (LPN) Kendra Dillard, who notified Marilyn Saba (a physician).  They initiated a “code blue,” called 911, and sent the resident to the hospital, where she was intubated.  CMS Ex. 6 at 24.  This was the appropriate response, consistent with regulatory requirements, facility policies, and the resident’s wishes. 

R3 returned to the facility on December 4.  Again, she did not agree to a DNR.  CMS Ex. 6 at 34.  Back at the facility, she was refusing to keep her oxygen on.  CMS Ex. 6 at 23.  A physician order, dated December 5, directed staff to “verify CPAP is in place every night shift.”  CMS Ex. 18 at 3.5

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The December 7, 2018 incident.  The facility’s contemporaneous record of the events surrounding R3’s death and staff’s failure to administer CPR is wholly inadequate and omits critical details.  According to the nurse’s note, at 12:58 a.m. on December 7, 2018, a licensed practical nurse, referred to here as LPN A, noted that R3’s CPAP was not in place.  The LPN did not indicate that she replaced it.  No evidence suggests that, throughout the early morning hours, she or anyone else checked periodically to ensure that the CPAP remained in place.  CMS Ex. 6 at 23; CMS Ex. 18 at 3.6

At 6:55 a.m. that morning, LPN A wrote that, as she was making rounds, she noticed “RHC” (respiration had ceased).  She notified R3’s physician’s office and obtained an order to release the body to the funeral home.  CMS Ex. 6 at 23; CMS Ex. 18 at 3.  Except to note that the resident was not breathing, she did not describe R3’s condition. 

At 3:25 p.m. that day, Director of Nursing (DON) Maureen Gul noted that she spoke to LPN A regarding the resident.  The LPN told her that she found the resident “cold to the touch and mottling to her extremities[,] with no respirations and bluing to the lips.”  CMS Ex. 6 at 22.  In a written statement, dated December 7, 2018, and signed by LPN A, the LPN confirmed that this is what she told the DON.  CMS Ex. 9 at 1.    

On December 10, 2018, the facility issued a Notice of Disciplinary Action against LPN A, citing the December 7 incident.  Although vague, the final written warning charged that the LPN had not complied with “all health and safety rules, including rules prohibiting unsafe conduct or unsafe acts[,] which jeopardize the health and safety of others or result in serious injury.”  CMS Ex. 9 at 4 (emphasis added).  LPN A was instructed to “follow policies and procedures in place to safe guard residents.”  CMS Ex. 9 at 4.

Notwithstanding its conclusion that the LPN’s conduct jeopardized resident health and safety, the facility did not report or further investigate the incident. 

LPN A’s subsequent (inconsistent) statements.  When Surveyor Yvette Redman first asked LPN A about R3, the LPN’s replies were muddled, inconsistent, and pretty obviously untrue.  LPN A acknowledged that the resident had passed away two or three weeks before.  Then she claimed the following:

• “I found out after we [] did everything that she was DNR.”7

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• “CPR was done.” She and another nurse did the CPR.
• “About 6:15 in the morning respirations had ceased.  Then I went to call her doctor and call 911.  And then we went in to do CPR.  Me and another nurse did CPR.”
• “I looked at the chart.  We still have our charts-paper.  She was a full code.  She had just come back from the hospital so they were in the process of getting a DNR.  She did not have a DNR yet.”8
• “We got the crash cart - Mark Hunter was the other nurse.  I started compressions[,] and he did respirations.  Then we switched up.  And we knew she was gone.  CPR was about 12 minutes maybe.  She was blue, cold.  She was stiff.”   
• “Then the doctor called back and he released the body to the morgue.”
• “911 did not show up.  We [were] calling them and doing CPR, so no I didn’t call 911.” 
• At about 7:00 or 7:15, “we notified the DON after we had everything done.  The DON asked if she was a full code.  I told her we found out afterward that she was.  She didn’t say anything.”

CMS Ex. 18 at 2; see CMS Ex. 2 at 4. 

On January 22, 2019, LPN A submitted a written statement describing the events of December 7.  In contrast to her earlier claims, she conceded that, after finding R3

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unresponsive, she did nothing more than report it to the physician, contact the funeral home, and direct a reluctant nurse aide to clean the body:   

• LPN A walked into R3’s room “at approximately 6:00 a.m.” to give medication to one of R3’s roommates.  The curtain around R3’s bed was partially open; the resident was lying in a supine position and “did not appear to be breathing.”  The LPN checked the resident’s radial pulse with her bare hands and put her hand on the resident’s chest.  R3 had no pulse and no respirations.  She felt cold; her face, lips, and hands were “bluish.”  The skin on her arms was “mottled, grey with a tinge of blue, kind of patchy.”
• A nurse aide, Monica, entered the room and was giving care to one of R3’s roommates.  When LPN A told her that the resident had died and instructed the nurse aide to clean her, the nurse aide ran from the room, “scared and upset.”  LPN A left the room and called the on-call doctor to report that the resident was dead.  The doctor ordered release of the body to the funeral home.
• Another nurse, “Mark,” who was sitting at the nurses’ station, told a second nurse aide, Glenda, to help Monica.     
• Toward the end of her shift, LPN A told the DON that R3 had passed away.  She also reported it to the oncoming nurse at shift change. 
• LPN A admitted that she lied to the surveyor about providing CPR to R3.  She claimed that she was nervous.  When the surveyor asked her what happened, she “blurted out that Mark and I had performed CPR.  At this point, I was aware that the resident was Full Code, so I told her what I thought she wanted to hear.  I told her that Mark and I had started CPR, which we did not do.”  (emphasis added).
• LPN A subsequently told the DON that she had “given incorrect information.”  When she spoke to the surveyor a second time, she told her that R3 was not breathing and had no respirations or pulse.

CMS Ex. 9 at 2.9

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It is noteworthy that LPN A did not document R3’s condition in any detail (and even when she did, the details were scant) until more than six weeks after the resident’s death. 

Additional witness statements:  LPN Mark Hunter.  LPN Mark Hunter also spoke to the surveyor.  He told her that LPN A came out of the resident’s room and grabbed the resident’s chart.  “[W]e check the chart to see if [they’re] full code or [DNR].  If they’re full code, we start CPR.  If they’re DNR, we notify the doctor and the family.  [LPN A] didn’t call the code, so we all assume she was a DNR.  It wasn’t until later that we realized she was a full code.”  CMS Ex. 18 at 5, 8 (emphasis added); see CMS Ex. 2 at 4.

LPN Hunter also told the surveyor that he subsequently went into R3’s room “to make sure that the lady wasn’t breathing and did pass away.  She was blue, she was more ashen.  I checked for a pulse.  There was no pulse.  There [were] no respirations.  You could tell she had passed away.  [LPN A] was on the phone.  If [LPN A] had said [R3] was a full code, we would have started doing CPR right away.  I can’t determine how long she had been deceased.”  CMS Ex. 18 at 5, 8.  But he later said that he didn’t remember if the resident was blue.  He didn’t look at her fingertips.  “She was more greyish.  She was cold when he touched her cheek to check for a pulse.  You could tell by her eyes she was gone.”  CMS Ex. 18 at 9.  The appearance of an individual’s eyes is not listed as an indication of irreversible death.  CMS Ex. 22 at 4. 

LPN Hunter also executed a written declaration on January 22.  CMS Ex. 11.  There, he wrote that LPN A reviewed R3’s chart, looking for the funeral home information, and that she phoned the on-call physician and told him that the resident had died.  He also wrote that he went to the resident’s room.  The resident had no pulse or respiration, was cool to the touch, and a pale ashen gray color.  At the end of his shift, he learned, for the first time, that “she was not DNR.”  CMS Ex. 11.

The physician statements.  The physician to whom LPN A reported R3’s death was Muhammad Salmanullah, M.D.  He told Surveyor Redmond that “I was called about a resident passing away.  I think she said that the patient was found cold and stiff.”  He told her to inform the family.  “There was no use of doing any codes at that time.  She asked me what to do since the patient was stiff and cold, so I told her there was no reason to run a code.”  CMS Ex. 2 at 4; CMS Ex. 18 at 8.

In a written declaration, signed on January 24, 2019, Muhammad Salmanullah, M.D. wrote that “a few minutes after 6 AM,” a facility nurse called him, stating that R3 “was observed to have dilated eyes, cold to touch, no respirations, no heart rate, and blue discoloration around the lips.”  CMS Ex. 10 at 2.  According to Dr. Salmanullah, he determined that “CPR was not warranted and would not have helped change the condition of the resident as she was beyond the stage where CPR has the potential to be effective.”  He told the nurse to call the funeral home and issued an order to release the body.  CMS Ex. 10 at 2.

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Petitioner has produced no contemporaneous records indicating exactly what LPN A told Dr. Salmanullah. 

Additional witness statements:  the nurse aides.  Two nurse aides prepared R3’s body for transfer to the funeral home.  Nurse Aide Monica Little told the surveyor that she was in the resident’s room at about 5:00 a.m. when LPN A came in to pass out medicine.  The LPN checked the resident’s pulse and said that she was dead.  Nurse Aide Little subsequently helped clean the body.  She described the resident as “still warm” but “getting cold.”  “Her body was loose.”  “She wasn’t stiff.”  “Her skin was real pale.”  CMS Ex. 2 at 4; CMS Ex. 18 at 7, 9. 

In her January 22 written statement, Nurse Aide Little described the body as “a little warm” at first, but then it got cold.  Her skin was a “pale, like a light white color.”  CMS Ex. 12. 

Nurse Aide Glenda Caldwell assisted Nurse Aide Little.  She also told the surveyor that “the resident was warm.”  She didn’t remember the skin color but thought it was pink.  She did not know if the resident was dead or alive, but, thinking she might be alive, she called for the nurse, who did not come.  CMS Ex. 2 at 4; CMS Ex. 18 at 7.  Nurse Aide Caldwell later told the surveyor that R3’s skin was “a bluish color,” but she insisted that she wasn’t stiff and that she was warm.  “I am not gonna lie.”  CMS Ex. 18 at 8.    

In her written statement, Nurse Aide Caldwell repeated that the body “felt somewhat warm,” but it was cooler than a normal body.  Her face and arms were “a very light pink color.”  CMS Ex. 13. 

The follow-up.  The facility disciplined LPN A for “unsafe acts” that “jeopardize the health and safety of others or result in serious injury,” but neither reported nor investigated the incident.  Instead, Allan Garfinkel, the Chief Operating Officer for Vintage Health Care (described as Petitioner’s “administrative services provider”), consulted someone from the Florida Health Care Association, an advocacy group for long-term-care providers.  According to COO Garfinkel, the person he spoke to consulted an unnamed “high-ranking official” from the advocacy group, who “indicated that if lividity, an obvious sign of irreversible death, was present, CPR did not need to be performed.  Therefore, there was no violation of any regulation[,] and no report was necessary.”  CMS Ex. 14 at 2.  As discussed below, this is not the standard for reporting, and, in any event, the official’s advice was based on a false premise; in fact, the evidence does not show that lividity had set in. 

On January 22, 2019, the facility finally took written statements from various staff members, including LPN A.  CMS Exs. 9, 11-13.

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The facility’s substantial noncompliance.  Petitioner concedes that LPN A’s documentation was “inadequate.”  She “should have recorded the condition of the resident when found, [indicated] whether CPR was initiated, had two other nurses verify no heartrate was present, and noted the time of death in the record.”  P. Cl. Br. at 4.  These admitted inadequacies alone are sufficient to establish the facility’s substantial noncompliance.  Nightingale Home Healthcare, DAB No. 2784 at 23 (2017) (holding that “[p]oor documentation supports the conclusion that the facility has provided inadequate care.”); Sheridan Health Care Ctr., DAB No. 2178 at 33 (2008) (finding that professional standards of nursing care require nursing notes to include nurses’ clinical observations of patients and to document the care and services furnished); see CMS Ex. 15 at 6 (“if it’s not documented[,] it wasn’t done.”); Oxford Manor, DAB No. 2167 at 5 (2008) (holding that a nurse who disregards facility policy must document and justify her actions). 

But the deficiencies go well beyond LPN A’s poor documentation.  There is no doubt that, when LPN A found R3 unresponsive, she did not initiate CPR, activate the emergency response system, or call 911; she did not enlist the assistance of the shift’s CPR “team lead” or take any other action called for in the facility policy.  She did not document why she failed to act.  CMS Ex. 8 at 10-11.  The facility recognized her failures when it disciplined her for violating health and safety rules “prohibiting unsafe conduct or unsafe acts” that “jeopardize the health and safety of others or result in serious injury.”  CMS Ex. 9 at 4 (emphasis added).

Without support, Petitioner suggests that the facility disciplined LPN A solely because of her inadequate documentation.  Inasmuch as the admonishment refers to “unsafe conduct or unsafe acts” that “jeopardize [] health and safety,” I do not accept that the reason for her reprimand was limited to an error in documentation.     

Notwithstanding the disciplinary findings, Petitioner now maintains that LPN A justifiably withheld CPR because the resident was irreversibly dead.  The evidence Petitioner relies upon is unimpressive, resting primarily on statements made by LPN A, who has demonstrated that she lacks credibility.  Petitioner acknowledges, as it must, that LPN A made many false statements in order to justify her inaction.  Yet, it insists that she should now be believed.  I do not agree, and I do not find her credible.  See Bridge at Rockwood, DAB No. 2954 at 17 (2019) (observing that a witness may be found less credible based on evidence of prior inconsistent statements). 

Petitioner claims that Dr. Salmanullah – who didn’t see the resident – “confirmed there were obvious signs of irreversible death.”  P. Cl. Br. at 12.  Initially, Dr. Salmanaullah told Surveyor Redmond that the LPN told him that the resident was “cold and stiff.”  CMS Ex. 18 at 8.  His subsequent written statement differs in one significant respect; he no longer claims that the nurse described the resident as “stiff.”  Rather, according to Dr. Salmanullah, the nurse reported that the resident had “dilated eyes, cold to touch, no

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respirations, no heart rate, and blue discoloration around the lips.”  CMS Ex. 10 at 2.  The discrepancies between what Dr. Samanullah told the surveyor and his later written statement suggest that he may not have accurately remembered what LPN A told him.  This and the absence of any contemporaneous documentation makes his opinion far less convincing.

Based on what LPN A might have told him, the physician writes that CPR would not have “helped change the condition of the resident.”  CMS Ex. 10 at 2.  He does not explicitly say that R3 exhibited signs of irreversible death, and the factors he mentions in his written statement are not listed in the American Heart Association guidelines as signs of irreversible death.  Based on what he did not say, I find it more likely that he considered CPR futile based on the resident’s underlying conditions and the purportedly low success rate from administering CPR to nursing home residents. 

The Departmental Appeals Board has soundly rejected these as justifications for declining to administer CPR.  Green Valley Healthcare and Rehab. Ctr., DAB No. 2947 (2019); N. Las Vegas Care Ctr., DAB No. 2946 (2019); Lakeridge Villa Healthcare Ctr., DAB No. 2396 (2011); Woodland Oaks Healthcare Facility, DAB No. 2355 (2010).  The Board recognizes a “bright-line rule” with respect to treating residents in distress:  a patient without a do-not-resuscitate order must be administered CPR unless that resident is irreversibly dead.  Woodland Oaks Healthcare Facility, DAB No. 2355 at 16 (2010).  Nursing staff may not disregard an advance directive because they determine that CPR would not likely save the resident, a position that has no support in the regulations or standards of care.10   With respect to the futility argument, the Board has pointed out that one of CPR’s goals is to reverse clinical death, “even though that outcome is achieved in only a minority of cases.”  Id. (quoting John J. Kane Regional Ctr. – Glen Hazel, DAB No. 2068 at 17 (2007)).

Even assuming that Dr. Salmanullah meant to say that R3 exhibited signs of irreversible death, his opinion is fatally flawed because it depends on the veracity of LPN A’s statements.  As this record makes abundantly clear, LPN A was willing to say just about anything to justify her actions (or inaction) on December 7.

Moreover, the credible evidence does not establish that R3 exhibited signs of irreversible death.  As noted above, no contemporaneous notes describe R3’s condition on the morning of December 7.  And staff’s subsequent descriptions of her condition do not describe irreversible death.  CMS Ex. 6 at 23.

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More than eight hours after she opted not to administer CPR, LPN A told DON Gul that R3 was “cold to the touch and mottling to her extremities[,] with no respirations[,] and bluing to the lips.”  CMS Ex. 6 at 22; CMS Ex. 9 at 1.  More than six weeks later, she described the resident as “cold,” her face, lip, and hands “bluish,” and the skin on her arms as “mottled, grey, with a tinge of blue, kind of patchy.”  CMS Ex. 9 at 2.  These are not signs of irreversible death.  CMS Ex. 22 at 4; see, e.g., Green Valley, DAB No. 2947 at 2 (concluding that CPR should have been administered to a resident with no pulse or heartbeat, who was described as cold to touch). 

Neither LPN A nor DON Gul have explained what they mean by “mottling.”  It is not the same as “lividity.”  Mottling is blotchy, red-purplish marbling of the skin.  It occurs when the heart no longer pumps efficiently.  The skin of someone suffering from acute respiratory distress may become mottled or blue (cyanosis), but that is not a sign of irreversible death.  CMS Ex. 22 at 4; see Acute Respiratory Distress Syndrome (ARDS), https://www.merckmanuals.com/home/lung-and-airway-disorders/respiratory-failure-and-acute-respiratory-distress-syndrome/acute-respiratory-distress-syndrome-ards (last visited May 25, 2021).  I note that, on November 23, nursing staff also described R3 as “blue in color.”  CMS Ex. 6 at 24.  But then, staff called a “code blue,” administered CPR, called in the paramedics, and the resident survived. 

Lividity (also referred to as livor mortis, post mortem staining, or post mortem hypostasis), on the other hand, is considered a sign of irreversible death.  Because of gravity, when circulation stops, the blood settles into the lowest points of the body.  See Postmortem Changes, https://www.ncbi.nlm.nih.gov/books/NBK539741/ (last visited May 25, 2021).  Because she was lying on her back, the skin on R3’s back and buttocks would have turned purplish-red or bluish-purple.  Neither of the LPNs turned the resident over, but the nurse aides did.  CMS Ex. 12 (“Glenda rolled the resident over so I could clean her . . . .”).  They certainly would have observed lividity, had it been there.  In light of Nurse Aide Little’s squeamishness, it seems unlikely that she would not have responded to or remembered the significant signs of lividity.  Instead, she described the resident’s skin as “pale”; Nurse Aide Caldwell thought it was “very light pink.”  CMS Exs. 12, 13.11   

Petitioner makes much of the purported disparities between the LPN statements and those of the nurse aides, questioning the nurse aides’ abilities to observe and report.  The nurse aides were obviously not trained nurses, but they were capable of making and reporting basic observations.  See Woodland, DAB No. 2355 at 10 (observing that, although a nurse aide is not qualified to assess a resident’s status, she is capable of reporting her observations).  Further, unlike LPN A, they had no incentive to be anything but candid in

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reporting what they observed.  I believe Nurse Aide Caldwell when she told the surveyor “I am not gonna lie.”  CMS Ex. 18 at 8.

Moreover, the statements do not conflict in any material way.  Except for Dr. Salmanullah’s (later abandoned) assertion that LPN A reported that the body was “stiff,” no witness described signs of irreversible death.  In that regard, the descriptions of the nurse aides are generally compatible with that of LPN Hunter.  Although the nurse aides described R3’s body as “warm,” they agreed that it was cooling.  For his part, LPN Hunter reported that the resident had no pulse or respiration, was cool to the touch, and was a pale, ashen grey, which is not so different from Nurse Aide Little’s describing her as “pale.”  CMS Ex. 11.  LPN Hunter did not describe lividity.  He also admitted that he did not know how long R3 “had been deceased” and assumed that she was DNR because LPN A “didn’t call the code.”  CMS Ex. 18 at 5, 8.  Had he known she was full code, “we would have started doing [CPR] right away.”  CMS Ex. 18 at 5, 8.     

Petitioner also points to the results of an investigation by the Florida Department of Children and Families, Adult Protective Services, for the proposition that R3 was not abused or neglected and that the facility’s deficiencies did not pose immediate jeopardy to resident health and safety.  Petitioner has not explained the standards applied by Adult Protective Services in reaching its conclusions, and I am not bound by those conclusions.  In any event, the report is hardly an endorsement of the facility’s actions.  Indeed, in one critical finding – which is completely compatible with federal regulations – the investigator deplores the LPN’s failing to provide CPR:

At the time of the code, [R3] was still a “Full Code” and resuscitations should have begun and EMS activated.  The decision to start or not start CPR is not up to the nurse and “what they think would be best.”  To see healthcare professional[s] say, “well, she was referred to Hospice or she had end-stage cancer” doesn’t give anyone the right to withhold CPR.  Legally, the absence of a DNR would indicate initiate CPR, Call 911.

CMS Ex. 15 at 6 (emphasis added).  The investigator concluded that the facility “needs to in-service all staff members concerning meaning and actions required when Full Code, DNR, and any other directives.”  The investigator also criticized the lack of documentation and reminded the facility of the rule:  “if it’s not documented[,] it wasn’t done.”  Id.

Failing to report or investigate.  Petitioner concedes that it did not report the circumstances surrounding R3’s death.  Nevertheless, even though it didn’t appeal that specific finding, it attempts to justify its inaction by claiming that it relied on the advice of an advocacy group’s unidentified “high-ranking official.”  The official purportedly

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opined that the facility did not have to report “if lividity, an obvious sign of irreversible death, was present.”  The official reasoned that, because lividity was present, CPR was unnecessary, and no regulation was violated.  Because no regulation was violated, it was unnecessary to report.  CMS Ex. 14 at 2.

As the above discussion shows, the evidence establishes that lividity was not present, so the opinion was based on an inaccurate assumption. 

Beyond that, facilities must investigate and report, without regard to whether abuse occurred or a regulation was violated.  The facility doesn’t get to conclude, before an investigation is even conducted, that an event is not reportable.  Beverly Health Care Lumberton, DAB No. 2156 (2008), aff’d, Beverly Healthcare Lumberton v. Leavitt, 338 Fed. App. 307, 315 (4th Cir. 2009).  The reporting requirements are triggered by any allegation of abuse or neglect, whether or not it is recognized as such by the facility.  Ill. Knights Templar Home, DAB No. 2369 at 11-12 (2011); Britthaven, Inc., DAB No. 2018 at 15 (2006) (citing Cedar View Good Samaritan, DAB No. 1897 at 11 (2003)).  Indeed, the fact that the facility felt compelled to inquire as to whether it should report the incident is evidence that it should have reported the incident.

And the facility’s failure to report and investigate, by itself, may put it out of substantial compliance with the more general abuse and neglect regulation.  As the Board has noted, failing to report and investigate an allegation of abuse – even one that is ultimately unsubstantiated – has broader implications, putting facility residents at risk.  This is so whether or not the allegation is ultimately substantiated:

If the system does not function properly in response to an allegation that is subsequently found not to constitute abuse . . . then it is reasonable to conclude . . . that the system is broken and residents who may experience serious abuse cannot rely on that system to protect them.

Beverly Health Care Lumberton, DAB No. 2156 at 15.  In affirming the Board’s decision in Beverly, the Court of Appeals for the Fourth Circuit agreed that the facility’s failure to implement its policies for reporting and investigating abuse “indicated a wider systemic problem in the facility” that leaves its residents “at real risk for serious harm.”  Beverly Healthcare Lumberton v. Leavitt, 338 Fed. App. at 314-15; Century Care of Crystal Coast, DAB No. 2076 at 25 (2007) (concluding that, where an incident went unreported and uninvestigated, the facility could not even identify, much less correct, the flaws in its systems.).

LPN A found R3 “unresponsive” and “without a pulse,” descriptors that compelled her to perform CPR and call the paramedics.  LPN Hunter indicated that he would certainly have done so had he known that the resident was full code.  He didn’t know because LPN

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A didn’t tell him or anyone else.  Although staff offered differing descriptions as to the exact shade of R3’s skin and the temperature of her body, those disagreements are not significant.  No reliable evidence establishes that R3 displayed signs of irreversible death. 

Because its staff failed to administer CPR to a resident who was full code, the facility deprived the resident of the services she needed to attain or maintain physical wellbeing, which put the facility out of substantial compliance with 42 C.F.R. § 483.12.  They failed to provide her with basic life support, which put the facility out of substantial compliance with 42 C.F.R. § 483.24(a)(3).    

2.    CMS’s determination that the facility’s substantial noncompliance posed immediate jeopardy to resident health and safety is not clearly erroneous.

Immediate jeopardy.  Immediate jeopardy exists if a facility’s noncompliance has caused or is likely to cause “serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.  CMS’s determination as to the level of a facility’s noncompliance (which would include an immediate jeopardy finding) must be upheld unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The Board has observed repeatedly that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  Heritage House of Marshall Health and Rehab., DAB No. 3035 at 21 (2021); Barbourville Nursing Home, DAB No. 1931 at 27-28 (2004) (citing Koester Pavilion, DAB No. 1750 (2000)); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9 (2007).

Here, the facility nurse failed to provide CPR to a resident who had stopped breathing, and she has not provided any acceptable explanation for her inaction.  Failing to provide CPR to a full-code resident who has stopped breathing all but guarantees that resident’s death and, thus, poses immediate jeopardy to resident health and safety.  Woodland, DAB No. 2355 at 17-18.

I do not agree that the state investigation undermines CMS’s finding of immediate jeopardy.  The Adult Protective Services completed its investigation on January 18, 2019, almost a full month after CMS determined that the facility’s deficiencies no longer posed immediate jeopardy to resident health and safety.  CMS Ex. 15 at 1.  Given the timing, its conclusion that facility residents were not then at risk is compatible with CMS’s determination. 

3.    The penalty imposed for the period of immediate jeopardy is reasonable.

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To determine whether the CMPs are reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors in 42 C.F.R. § 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies. 

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors.  I am neither bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Comty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1638 at 8 (1999).

The burden is on the facility to demonstrate that a reduction is necessary to make the CMP amount reasonable.  Heritage Plaza Nursing Ctr., DAB No. 2017 at 22 (2017).

Here, CMS imposed a penalty of $11,030 per day for 14 days of immediate jeopardy, which is in the lower range of penalties ($6,524 to $21,393).  42 C.F.R. §§ 488.408(e), 488.438; 45 C.F.R. § 102.3; 83 Fed. Reg. 51369 (Oct. 11, 2018); 84 Fed. Reg. 59549 (Nov. 5, 2019).12   Considering the relevant factors, this penalty is reasonable.

CMS offers no evidence of the facility’s history. 

Petitioner does not claim that its financial condition affects its ability to pay the penalties. 

Applying the remaining factors, an LPN neglected her responsibility to a resident who had made her wishes known.  Violating the facility’s policies, the nurse either failed to check for or opted to disregard that resident’s advance directive.  The nurse also failed to document the resident’s condition.  When asked what had happened, she falsely claimed that she had responded appropriately by administering CPR.  Her actions show neglect, indifference, or disregard for resident care and safety.  For its part, facility management opted not to investigate or report the incident.  For all of this, the facility is culpable.

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Conclusion

For the reasons discussed above, I find that the facility was not in substantial compliance with 42 C.F.R. §§ 483.12 and 483.24.  Its deficiencies posed immediate jeopardy to resident health and safety, and the penalty imposed is reasonable.

1. The surveyors also cited a deficiency under 42 C.F.R. § 483.70 (Tag F835 – administration).  CMS subsequently accepted the recommendation from an Informal Dispute Resolution panel that the citation be deleted.  CMS Ex. 4 at 1, 13-14; but see Asbury Ctr. at Johnson City, DAB No. 1815 at 11 (2002) (finding that where a facility’s substantial noncompliance placed its residents in immediate jeopardy, the facility was not administered “in a manner that used its resources effectively to attain the highest practicable physical, mental, and psychosocial well-being of each resident.”).
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2. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
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3. Although Petitioner did not appeal the specific citation, the facility’s failing to report an allegation of abuse or neglect must be considered here.  Not only is it relevant in assessing whether the penalty amounts are reasonable, but, as discussed below, it is a factor in determining whether the facility complied with the abuse-and-neglect regulation.  By failing to report the allegation, the facility is not ensuring that its residents are free from abuse.  See, e.g., Rosewood Care Ctr. of Swansea, DAB No. 2721 at 12-13 (2016) (finding that failing to report leaves facility residents unprotected against additional instances of abuse).
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4. However, there is a disturbing disconnect between Dr. Ducker’s assessments and the nursing notes.  On October 19, Dr. Drucker wrote that R3 experienced “[n]o recent falls or traumas.”  CMS Ex. 6 at 53.  This was not accurate.  On October 10, 2016, at 3:20 p.m., R3 was found sitting on the floor, uninjured.  Her O² levels were in the low 80’s (95 to 100 is normal).  CMS Ex. 6 at 27.  On October 17, 2016, at 4:21 a.m., staff found her on the floor at bedside.  She again had decreased O² levels (77%).  Staff efforts to raise her O² levels were ineffective.  They called her physician and sent her to the emergency room.  CMS Ex. 6 at 26.  Dr. Ducker should have been aware of these incidents.
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5. A CPAP (continuous positive airway pressure) machine delivers oxygenated air into the airways through a mask and a tube.
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6. In a sworn statement, created weeks after the survey, LPN A did not even mention R3’s CPAP machine.  In what passed for the facility’s subsequent investigation, no one commented on whether staff took any steps to comply with the physician’s order to verify that the CPAP remained in place.  CMS Ex. 9 at 2; see CMS Exs. 11-14, 16.
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7. I highlight, in bold, the LPN statements that are verifiably untrue.
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8. One document supports LPN A’s claim that “they” were in the process of getting a DNR.  Its implications are deeply disturbing.  In an undated statement, a woman identified as a “Professional Guardian” writes that she agreed to become R3’s proxy.  She signed the healthcare proxy through email exchange with “Medina” on December 6, expecting to receive the DNR paperwork the next day “and would have return[ed] it signed the same day.”  CMS Ex. 23.  No evidence suggests that the professional guardian ever met with R3, reviewed her medical history, or consulted the facility’s social services department.  And nothing in this record suggests that R3 had ever expressed a willingness to execute a DNR.  In fact, the opposite is true.  See CMS Ex. 6 at 3, 6-7, 21, 34.  At a minimum, this plan to change R3’s advance directive does not comport with the facility’s policies.  CMS Ex. 8 at 6-7.  And what is the point of an advance directive if a complete stranger gets to change it as soon as you’re incapacitated?
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9. Before LPN A admitted to the surveyor that she had “given incorrect information,” she spoke to LPN Hunter, who expressed surprise that she had made the false assertion.  He reported that LPN A “approached him and asked if he had spoken to state.  He said he did.  She said she told state that they did [CPR].  He asked her why she would say that[,] and she just stared at him.  He restated that they did not do [CPR] and doesn’t know why she said that.”  CMS Ex. 2 at 4; CMS Ex. 18 at 7.
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10. In any event, an LPN is not qualified to determine whether a resident is irreversibly dead.  Under standards of nursing practice and Florida state law, a “professional nurse” (i.e., an RN) is authorized to assess, diagnose, and evaluate care.  A practical nurse is not.  Fl. Stat. § 464.003 (17) and (18) (2018).
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11. Of course, had the facility timely investigated the incident, an investigator could have asked the nurse aides specifically whether they observed any unusual color changes on the resident’s back and buttocks.
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12. Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case on January 29, 2019.  See CMS Ex. 3; 83 Fed. Reg. at 51380.
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