Stanford Care and Rehabilitation, DAB CR5881 (2021)

DECISION

Stanford Care and Rehabilitation (Petitioner or “the facility”) challenges the determination by the Centers for Medicare & Medicaid Services (CMS) to impose a per‑day civil monetary penalty (CMP) of $6,394 for immediate jeopardy noncompliance beginning April 5, 2017, and continuing through and inclusive of October 3, 2017, based on its noncompliance with Medicare participation requirements.  I uphold CMS’s determinations.

I.  Background

The Social Security Act (Act) establishes requirements for skilled nursing facility (SNF) participation in the Medicare program and authorizes the Secretary of Health and Human Services (“the Secretary”) to promulgate regulations implementing those statutory provisions.  See 42 U.S.C. § 1395i-3; 42 C.F.R. pts. 483 and 488.  To participate in the Medicare program, a facility must maintain substantial compliance with program participation requirements.  In order to be in substantial compliance, the facility’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  Id.

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The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with participation requirements.  42 U.S.C. § 1395aa(a); 42 C.F.R. §§ 488.10, 488.20.  The Act and its implementing regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  42 U.S.C. § 1395i‑3(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  CMS may impose a per-day CMP for the number of days an SNF is not in substantial compliance, or a per-instance CMP for each instance of the SNF’s noncompliance.  42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. § 488.430(a).  

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge (ALJ) to challenge the noncompliance finding and enforcement remedy.  42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

Surveyors from the Kentucky Cabinet for Health and Family Services, Office of Inspector General (state agency), completed a standard health survey and an extended survey, along with a complaint survey, on October 18, 2017, and determined that Petitioner was not in substantial compliance with Medicare program participation requirements.  CMS Ex. 1 at 1.

In a letter dated November 29, 2017, CMS notified Petitioner that, based on the October 2017 survey, it was not in substantial compliance with Medicare program participation requirements1 and that the deficiencies posed immediate jeopardy to resident health and safety at the “J” level of scope and severity.2  CMS Exs. 1 at 2; 6.  As relevant here, CMS

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imposed a CMP of $6,394 per day for the period from April 5, 2017, through and inclusive of October 3, 2017.3  CMS Ex. 6 at 2.  

Petitioner, through counsel, timely requested a hearing on January 26, 2018.  CMS filed a pre-hearing brief (CMS Br.) and 16 proposed exhibits (CMS Exs. 1-16), and Petitioner filed a brief (P. Br.) and 37 proposed exhibits (P. Exs. 1-37). 

The pre-hearing order issued on February 1, 2018, directed the parties to “exchange as a proposed exhibit the complete, written direct testimony of any proposed witness,” and that such testimony “must be submitted in the form of an affidavit made under oath or as a written declaration that the witness signs under penalty of perjury.”4   Pre-Hearing Order § 8.  CMS did not submit the sworn written direct testimony of any witnesses.  Petitioner submitted the sworn written direct testimony of 27 witnesses.  P. Exs. 1-27.  Because CMS has not requested an opportunity to cross-examine Petitioner’s witnesses, a hearing is unnecessary for the purpose of cross-examination.  See Pre-Hearing Order § 10 (“A hearing to cross-examine witnesses will be necessary only if a party submits admissible, written direct testimony as part of its pre-hearing exchange, and the opposing party requests cross-examination.”). 

Petitioner has requested an opportunity to cross-examine the surveyors who authored the statement of deficiencies.  However, as previously mentioned, the surveyors did not submit written direct testimony.  Nor were the surveyors present at the facility when Resident # 22 was admitted to the facility.  Therefore, the surveyors cannot offer any firsthand observations for the time period covering Resident # 22’s admission.  See CMS Ex. 1 at 1.  The surveyors interviewed staff members who offered such firsthand observations, and also collected and reviewed documentation.  See CMS Ex. 1.  The

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surveyors also “verified” that Petitioner had implemented its plan to abate immediate jeopardy, which Petitioner reported was effective October 4, 2017.  CMS Ex. 1 at 12; see CMS Ex. 13.  Significantly, Petitioner has submitted the testimony of 27 witnesses who collectively provided firsthand observations of Resident # 22 prior to and throughout his admission to the facility.  And without objection, I admitted the evidence submitted by the parties to support factual and legal matters addressed in their briefing.  The surveyors do not independently establish any relevant and material facts supporting this decision, and I do not rely on the statement of deficiencies as support for factual matters.  Therefore, cross-examination of the surveyors based on the statement of deficiencies would serve no useful purpose.  To the extent Petitioner may seek to cross-examine the surveyors regarding their application of law to the facts (i.e., legal conclusions), I note that CMS, and not the surveyors, ultimately determines noncompliance and what enforcement action will be taken.  See, e.g., 42 C.F.R. §§ 488.11 (state agencies “[s]urvey and make recommendations” regarding a provider’s compliance with participation requirements”); 488.12 (state survey agency certifications “represent recommendations to CMS”).

II.  Issues

The issues presented are:

Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.10(g)(14);

Whether CMS’s finding that Petitioner’s substantial noncompliance posed immediate jeopardy to resident health and safety was clearly erroneous;

Whether immediate jeopardy continued until October 4, 2017; and

Whether a per-day CMP of $6,394 is reasonable.

III.  Discussion5

Resident #22

Resident #22, a man who was born in 1946, was admitted to the facility on March 23, 2017, upon his discharge from a hospital.  P. Ex. 28 at 8.  Prior to his hospitalization that began on February 13, 2017, he had been a resident of another SNF.  P. Exs. 27 at 1; 31 at 25.  A March 23, 2017 hospital discharge summary reports numerous diagnosed medical conditions, to include end stage renal disease, congestive heart failure (New York Heart Association classification 4), diabetes mellitus (type 2), diabetic nephropathy, atypical pneumonia, and “agitation.”  P. Ex. 31 at 25. 

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Petitioner’s Administrator, Dawn Lewis, addressed Resident #22’s admission in her testimony, explaining: 

I believe it was on my first day of employment that the Admissions Director approached me concerning [Resident #22’s] admission.  The Admissions Director indicated that the hospital had been trying to admit [Resident #22] to the facility for “some time.”  She told me that he required a lot of care, had a history of behaviors, and was very ill.  Per the hospital, he had had a significant decline.  His daughter was an employee of the facility, and she would be questioning why we refused to take him, if we refused . . .  I asked whether, based on his care needs, the facility was capable of managing his care.  She told me that we could.  I instructed that we were to do the right thing by helping our employee.  Not only was the family having a difficult time with placement, but his admission to the facility would allow for greater family interaction.

P. Ex. 9 at 1. 

Another facility witness, Lori Young, also addressed Resident #22’s admission, explaining that she and a colleague visited Resident #22 at the hospital on March 8, 2017, at which time Resident #22 “spoke aggressively and was clearly agitated.”  P. Ex. 27 at 1.  Ms. Young reported that nursing notes documented “multiple behavioral issues” and that Resident #22 “was large and his stature made him intimidating.”  P. Ex. 27 at 1.  Ms. Young reported that she “was only in the room for approximately 2 minutes,” at which time she determined Resident #22 “required more care than what we were capable of providing.”  P. Ex. 27 at 1.  Ms. Young explained that weeks later, the hospital requested that Petitioner reconsider Resident #22 for admission, at which time the hospital reported that Resident #22 had sustained a “huge decline” and “was no longer agitated and no longer exhibiting behaviors.”  P. Ex. 27 at 1.  Ms. Young reported that Ms. Lewis “reviewed the paper work, and the decision was made to accept [Resident #22] for admission . . . based on the lack of aggressive behaviors and out of respect for a current employee.”  P. Ex. 27 at 1.

Resident #22’s facility admission record reflects diagnoses that included end stage renal disease, congestive heart failure, diabetes mellitus (type 2), and diabetic nephropathy.  P. Ex. 28 at 8-9.  Petitioner also assessed that Resident #22 had highly impaired vision, and a care area assessment reported that Resident #22 had blindness, visual field deficit, diabetic retinopathy, and decreased visual acuity.  P. Ex. 28 at 18, 62.

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The admission record also lists a diagnosis of “restlessness and agitation” with corresponding ICD code R45.1.  Upon his admission to the facility, Resident #22’s physician, Narendra James, prescribed olanzapine6 and quetiapine,7 which had also been prescribed during his recent hospitalization, for “restlessness and agitation.”  P. Ex. 28 at 11; see P. Ex. 28 at 6.  Facility records do not indicate any symptomatology consistent with restlessness or agitation.  See CMS Ex. 2; P. Ex. 28.  To the contrary, Petitioner reported that Resident #22 was “very lethargic since admission and wants to sleep frequently which is affecting his participation in therapy and activities of daily living.”  P. Ex. 28 at 87; see, e.g., P. Ex. 1 at 1 (testimony of Teresa Brumett, “[Resident #22] was fairly unresponsive and didn’t talk a lot.  He mostly slept.  During care, we had to continually wake him.”); P. Ex. 5 at 1 (testimony of Shakayla Brand, “I remember being surprised to see him awake.”); P. Ex. 11 at 1 (testimony of Taylynn Bottoms, “Because [Resident #22] was so ‘out-of-it’, you would have to arouse him before providing any care, such as feeding, turning, changing, etc.”); P. Ex. 19 at 1 (testimony of Annastaza Gross, “Every time I care[d] for Resident #22, he was sluggish and difficult to arouse.  He would only open his eyes for short periods of time.  He would seldom talk.”).  Facility records document that Resident #22’s final administration of Seroquel was on April 1, 2017.  P. Ex. 28 at 107.  On April 5, 2017, Petitioner reported that Resident #22 was “scheduled to be seen by psych[iatric] services for dose reduction of antipsychotic medication in [an] attempt to improve mental alertness.”  P. Ex. 28 at 87.

On March 24, 2017, Petitioner initiated a care plan addressing that Resident #22’s long-term placement in the facility was expected, and one of the interventions required that Resident #22 be monitored for “physical/mental improvement or decline,” with notification to his physician as needed.  P. Ex. 28 at 89.  Another care plan for alteration in kidney function included an intervention that Resident #22 be assessed for increased confusion, with any changes reported to his physician.  P. Ex. 28 at 90. 

On March 28, 2017, the facility reported a change in condition of Resident #22, in that he was “extremely lethargic,” had a fingerstick glucose reading of 400 that was reduced to 248 with insulin administration, had a blood pressure reading of 92/50, and had an irregular heartbeat.  CMS Ex. 2 at 31.  A subsequent nursing note entered by Michelle Harrison reported that Resident #22’s physician ordered that he be transferred for hospital evaluation of “[altered mental status] and irregular pulse.”  CMS Ex. 2 at 31; but see

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P. Ex. 20 at 1 (testimony of Ms. Harrison that Resident #22 was transferred to the hospital due to potential diabetic ketoacidosis).  The reported chief complaint upon Resident #22’s arrival at the hospital did not include an irregular pulse, but rather, was limited to a decreased level of consciousness with a stated complaint of mental status change.  P. Ex. 28 at 109.  The hospital assessed that Resident #22 had an altered mental status without providing an underlying cause for this impression.  P. Ex. 28 at 111.  The hospital instructed that Resident #22 should “return for worsening mental status changes[,] fever[,] low blood pressure[,] low oxygen.”  P. Ex. 28 at 111; but see P. Ex. 20 at 1 (testimony of Ms. Harrison, stating, “The hospital returned Resident #22 almost immediately” and she “was told lethargy was his baseline and there was nothing more that could be done for him.”). 

On April 3, 2017, a facility nurse assessed Resident #22 prior to his dialysis appointment.  CMS Ex. 2 at 89.  A communication form documenting the assessment, which would be provided to the dialysis center, reported, inter alia, that Resident #22’s mental status/level of consciousness was “alert” and that his lungs were clear.  CMS Ex. 2 at 89. 

At 2:15 am on April 5, 2017, a facility nurse, Kendra Rowan, entered a change of condition progress note reporting that Resident #22 had “increased lethargy.”  P. Ex. 28 at 95, 113.  Ms. Rowan obtained a fingerstick blood glucose reading and vital signs, which were all within normal limits.  P. Ex. 28 at 95.  Ms. Rowan also notified Resident #22’s physician and family.8  P. Ex. 28 at 95; see P. Ex. 35 at 1 (24-hour report documenting a change of condition on the overnight shift); but see P. Ex. 9 at 2 (testimony of the Administrator, Dawn Lewis, that “based on [her] investigation, no staff reported a change in condition to anyone on April 5, 2017”).  Ms. Rowan’s colleague, Ms. Pamela Soard, questioned Ms. Rowan’s assessment that Resident #22 had experienced a change in condition.  P. Ex. 8 at 1 (“He was no different than he always was.  His baseline was bad from the very beginning of his admission until the time he left.”).Only a few hours later, at 6:15 am on April 5, 2017, Ms. Soard was unable to administer medication to Resident #22 because she could not sufficiently wake him.9   CMS Ex. 2 at 33; P. Ex. 28 at 107.

A late entry note entered by another nurse, Donna Edwards, reported that at 7:31 am she both administered medications and fed Resident #22.  CMS Ex. 2 at 33; but see P. Ex. 14 (Ms. Edwards’s testimony that she administered medications and later fed Resident #22).  Although she administered the medications “without difficulty” (CMS Ex. 2 at 33), Ms. Edwards testified that she had to rouse Resident #22 with a “sternal rub” prior to feeding him.  P. Ex. 14 at 1.  Progress notes report that Ms. Edwards spoon-fed Resident

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#22 five bites of cereal before he declined to eat any more (CMS Ex. 2 at 33), but Ms. Edwards testified, more than eight months later, that Resident #22 “ate an entire bowl of oatmeal, drank an entire glass of juice, and ate a few bites of eggs.”  P. Ex. 14 at 1; but see CMS Ex. 2 at 87 (dialysis communication form reporting poor meal consumption that day); P. Ex. 6 at 1 (testimony of Amber Breckenridge, who picked up Resident #22’s breakfast tray, that “he didn’t eat well.”). 

At 1:21 pm on April 5, 2017, occupational therapist Katlyn Frey authored an entry detailing her 15-minute occupational therapy session with Resident #22 that day, stating: 

[Resident] lethargic in bed, therapist [washed resident’s] face with total A.[10 ]  Therapist facilitated [s]ternal rubs.  [Resident] unresponsive to arousal techniques.  Therapist conferred with nursing staff that [resident] was to have medication changes to increase arousal and decrease lethargy.

P. Ex. 28 at 103.  In her testimony, Ms. Frey explained that “10 minutes into the treatment session,” after wiping Resident #22’s face with a wet washcloth and performing a sternal rub, Resident #22 “still did not open his eyes.”  P. Ex. 15 at 1.  In explaining that performing a sternal rub “is not unusual,” Ms. Frey stated that residents “have a tendency to feign sleep because they don’t want to participate in therapy.”11   P. Ex. 15.  Ms. Frey testified that she informed a nurse that she “couldn’t get the resident to wake sufficiently to participate in therapy,” but only did so because “anything remotely unusual requires nursing notification.”  P. Ex. 15 at 1; but see P. Ex. 14 at 1 (testimony of Ms. Edwards, “I have no memory of any therapist coming to me and reporting lethargy or the performance of a sternal rub.”).  Despite the fact that she was unable to rouse Resident #22 after 10 minutes, Ms. Frey reported that when she notified the nurse that she had unsuccessfully used a sternal rub, she “did NOT expect the nurse to call the physician.”  P. Ex. 15 at 1 (capitalization in original).  Another occupational therapist, Elissa Johnson, reported on April 12, 2017, that Resident #22 “has had [an] episode of increased lethargy and . . . is currently [discharged] to [the] hospital.”  CMS

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Ex. 2 at 80.  Ms. Johnson also explained that occupational therapy services was “[u]nable to progress challenges and treatments were down graded due to [resident’s] decline.”  CMS Ex. 2 at 80.

Speech therapist Katrina Cloyd entered a note documenting her lunchtime treatment session with Resident #22 on April 5, 2017.  P. Ex. 28 at 105; see P. Ex. 6 at 1 (reporting that Resident #22’s lunch tray was picked up at approximately 1:15 pm).  Like Ms. Frey had just done, Ms. Cloyd also reported that she administered a “sternal rub and cold wash cloth to [Resident #22’s] face to facilitate alertness.”  P. Ex. 28 at 105; see P. Ex. 3 at 1 (testimony of Ms. Cloyd, “When a resident is hard to arouse, I will shake the resident’s shoulder, wash the face, call the resident’s name, pat them on the chest/shoulder, then perform a sternal rub as a last resort.”).  Ms. Cloyd reported that Resident #22 “consume[d] only 1-2 bites/sips before falling asleep.”  P. Ex. 28 at 105. 

Two days later, on April 7, 2017, Ms. Cloyd revised her entry, at which time she added new details regarding a suspected aspiration during the meal and omitted the previously reported information that Resident #22 fell asleep after having only 1 or 2 bites of food, stating:  

[Resident] masticated and swallowed initial bite.  [Resident] did not masticate second bite.  [Speech therapist] noted [resident] to pocket food in right buccal cavity and [speech therapist] provided finger sweep to remove pocketed bolus.  [Certified Nurse Aide (CNA)] offered [resident] a drink to clear any other oral residue.  [Resident] drank from straw then exhibited productive cough.  [Speech therapist] noted [resident] began to have wet vocals as well and cued [resident] to cough multiple times, which appeared to clear bolus.  [Resident] spoke to [speech therapist] and stated he was “fine”.  [Speech therapist] reported incident to nursing who stated they would continue to monitor [resident] for distress as a result of aspiration.

CMS Ex. 2 at 72; see P. Ex. 3 at 2 (Ms. Cloyd’s testimony, “I informed the nurse of the suspected aspiration event because I wanted her to be alert in case Resident #22 experienced a change in condition. . . .  I also told the nurse I performed a sternal rub – in case of bruising.”); 12 but see P. Ex. 14 at 1 (testimony of Ms. Edwards, “I have no

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memory of any therapist coming to me and reporting lethargy or the performance of a sternal rub.”).  Facility records submitted by both CMS and Petitioner, to include daily progress notes, do not indicate that, on April 5, 2017, Ms. Cloyd, Ms. Edwards, or any other staff member documented Resident #22’s suspected aspiration.  See P. Ex. 9 at 3 (Administrator’s testimony that Resident #22 “didn’t have any episodes of aspiration at the facility”).

In advance of Resident #22’s dialysis appointment, Petitioner’s staff gave Resident #22 a “bed bath” at approximately 1:30 pm on April 5, 2017.  P. Ex. 6 at 1.  Ms. Breckenridge, a CNA, reported that she observed reddened areas on Resident #22’s heels and buttocks at that time, and brought in the wound care nurse, Ronald “Steve” Godbey.13   P. Ex. 6 at 2.  Ms. Breckenridge recalled that upon transferring Resident #22 to a wheelchair, Resident #22’s “upper body fell forward,” but she was “able to catch him before he fell out of the chair.”  P. Ex. 6 at 2.  Ms. Breckenridge reported that after nearly falling, Resident #22 still needed to be awoken through the administration of a sternal rub by Mr. Godbey.  P. Ex. 6 at 2 (“[Mr. Godbey] rubbed on [Resident #22’s] chest and called his name”); see P. Ex. 17 at 1 (Mr. Godbey’s testimony that Resident #22 would “ignore” people unless he was roused with a sternal rub).  Ms. Breckenridge reported that after Resident #22 awoke, his eyes were “big and red – like he had just woken up from sleep.”  P. Ex. 6 at 2.  Ms. Breckenridge recalled that she asked, in light of Resident #22’s near-fall event, whether he “was going to go to dialysis,” and that Mr. Godbey responded in the affirmative and wheeled Resident #22 out of the room.  P. Ex. 6 at 2; but see P. Ex. 17 at 1 (testimony of Mr. Godbey, reporting that he did not recall providing care to Resident #22 on April 5, 2017, and that “more likely than not, there was nothing in his care that was out of the ordinary.”).  Ms. Breckenridge reported that she informed Resident #22’s nurse, Ms. Edwards, about Resident #22 falling forward in the chair, because “policy requires that we tell the nurse any time the resident has a fall or near fall event.”  P. Ex. 6 at 2; but see P. Ex. 14 at 2 (testimony of Ms. Edwards that she had “no memory of any nursing assistants coming to me and reporting a change in condition”).

Prior to transferring Resident #22 to the dialysis center, Petitioner partially completed the dialysis communication form that would be sent with Resident #22 to his appointment.  CMS Ex. 2 at 87.  Even though the form requested that Petitioner report any significant incidents or changes to Resident #22’s medical condition since his last appointment two days earlier on April 3, 2017, at which time it had been reported he was “alert,” Petitioner did not indicate any changes in condition, such as the 2:15 am change in condition, the

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very recent near-fall, or the suspected aspiration at lunch.  CMS Ex. 2 at 87; see CMS Ex. 2 at 89.  The form also contained fields for Petitioner to report its assessments of the resident’s mental status/level of consciousness, heart, lungs, edema/redness, skin condition, and weight, but Petitioner left those fields blank.  CMS Ex. 2 at 87.  

At approximately 2:30 pm on April 5, 2017, Resident #22 traveled by bus to his dialysis appointment.  CMS Ex. 2 at 48.  A receptionist for Petitioner, Amanda Rankin, saw Resident #22 in the lobby waiting for the bus, and recalled that he “was in the same condition as he was previously, except that he was drooling slightly in his sleep.”  P. Ex. 23 at 2.  Based on her observation that Resident #22 was drooling, Ms. Rankin asked Resident #22’s nurse, Ms. Edwards, to check on him.  P. Ex. 23 at 2; see P. Ex. 14 at 1 (testimony of Ms. Edwards, “[Resident #22] was no different when he left the facility for dialysis than he was when I first administered medications to him that morning.  I had absolutely no concerns sending him to dialysis.”).  The bus driver, as reported by the Administrator, observed that Resident #22’s “head was down sleeping.”  P. Ex. 9 at 4.

Within minutes of Resident #22’s arrival for his dialysis appointment, a dialysis center employee informed the “transport aide” who had been assigned to accompany a different facility resident that “she had called an ambulance to come get” Resident #22.  P. Ex. 12 at 2; see P. Ex. 9 at 4. 

A Boyle County EMS run sheet indicates that when a paramedic team arrived at 3:22 pm, Resident #22 was “sitting in the chair, unresponsive and drooling,” and that his head was touching his chest.  CMS Ex. 2 at 84-85.  The paramedics reported that dialysis center staff had informed them that they “had to literally hold him up in the chair to keep him from falling.”  CMS Ex. 2 at 85.  The paramedics assessed that Resident #22 was in a “severe” level of distress, with signs and symptoms of “Respiratory – Apnea.”  CMS Ex. 2 at 84.  The paramedics assessed that Resident #22’s skin was cold, and that assessment of his lungs revealed decreased bilateral lung sounds with agonal breathing.  CMS Ex. 2 at 84-85.  A chief complaint of respiratory failure was assessed, and paramedics intubated Resident #22 and ventilated him with a bag valve mask.  CMS Ex. 2 at 84-85.  The run sheet documents the dialysis center’s report that Resident #22 was “unresponsive and had periods of apnea as soon as he arrived,” and that the “exact time” of onset of respiratory failure was “unk[nown]” because “he was brought in [to dialysis] that way.”  CMS Ex. 2 at 85. 

A dialysis center nurse called Petitioner that afternoon and reported to Ms. Edwards that Resident #22 was in “‘real bad shape’ and had been sent to the hospital.”  P. Ex. 14 at 1.  The caller further reported that Resident #22 “was ‘almost comatose,’” and Ms. Edwards construed the caller’s tone as being “very nasty and accusatory.”  P. Ex. 14 at 1.  Ms. Edwards reported that the dialysis center nurse “was clearly upset and didn’t want to listen to anything [she] had to say.”  P. Ex. 14 at 2.  Ms. Edwards recounted that she had informed the dialysis center nurse that Resident #22 “had been fine that morning – that he

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ate an entire bowl of oatmeal.”  P. Ex. 14 at 1-2; but see CMS Ex. 2 at 33 (progress note entered by Ms. Edward reporting that Resident #22 had eaten five bites of cereal); CMS Ex. 2 at 87 (dialysis communication sheet reporting that Resident #22 had “poor” meal consumption that day); P. Ex. 6 at 1 (testimony of Ms. Breckenridge that Resident #22 “didn’t eat well”).

Upon his arrival at the hospital, Resident #22 was re-intubated with an endotracheal tube and “sent to the ICU for emergent treatment of hyperkalemia and respiratory failure.”  CMS Ex. 2 at 104.  Resident #22 expired several hours later, at 10:16 pm, after unsuccessful “CODE BLUE” resuscitation efforts.  CMS Ex. 2 at 113. 

A hospital death summary reports that Resident #22 “was brought to dialysis unit today with altered mental status and was not responding to even painful stimuli.”  CMS Ex. 2 at 113.  The summary reported that Resident #22 was admitted “for healthcare facility acquired pneumonia with septic shock, hyperkalemia with worsening renal function and metabolic acidosis.”  CMS Ex. 2 at 113.  Resident #22’s death certificate lists an immediate cause of death of pneumonia, with septic shock and hyperkalemia being underlying conditions causing death.  P. Ex. 30 at 1; see P. Ex. 10 at 1. 

A. Petitioner’s staff did not notify Resident #22’s physician of a significant change in his condition.

Pursuant to 42 C.F.R. § 483.10(g)(14), a facility must consult with a resident’s physician when there is a significant change in the resident’s condition (such as a “deterioration in health . . . in either life-threatening conditions or clinical complications”), a need to alter treatment significantly, or there is a decision to transfer or discharge a resident from the facility.  The Departmental Appeals Board has repeatedly explained that requiring staff to consult the physician “is not a mere formality”; the requirement guarantees that the resident will timely receive the treating physician’s input as to the care he or she requires under the circumstances.  Senior Rehab. and Skilled Nursing Ctr., DAB No. 2300 at 7 (2010) (quoting Britthaven of Goldsboro, DAB No. 1960 at 11 (2005)); see also Maysville Nursing & Rehab., DAB No. 2874 at 9 (2018).  Further, such consultation requires a “dialogue with and a responsive directive from the resident’s physician as to what actions are needed.”  Magnolia Estates Skilled Care,DAB No. 2228 at 9 (2009).  The requirement for physician notification “is not contingent on how the physician might respond, but on the existence of facts requiring notification.”  NHC Healthcare Athens, DAB No. 2258 at 6-7 (2009).

In addition to the regulatory requirement that Petitioner notify Resident #22’s physician of a change in condition, Resident #22 had care plans that required physician notification of “physical/mental improvement or decline” and “increased confusion.”  P. Ex. 28 at 89‑90.

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CMS contends that although Petitioner had assessed that Resident #22 had a change of condition early in the morning of April 5, 2017, Resident #22’s “consistent decline on April 5 went essentially unnoticed by some nursing home staff.”  CMS Br. at 5.  CMS explained that Resident #22 was “very lethargic during the lunch meal on April 5, 201[7], and [a speech therapist] suspected that the resident had aspirated due to the resident developing a wet, productive cough.”  CMS Br. at 3.  CMS explained that although the speech therapist informed a nurse of the aspiration event, “there was no documented evidence Resident 22’s physician . . .  was notified that the resident had aspirated.”  CMS Br. at 3.  In fact, there is no contemporaneous documentation of Resident #22’s aspiration; the speech therapist did not document this information until two days after his death, on April 7, 2017.  CMS Ex. 2 at 72.

CMS also argues that a CNA had observed that Resident #22 was lethargic, in that he was “leaning and falling forward in a chair, and unable to sit up unassisted.”  CMS Br. at 3.  A facility CNA, Ms. Breckenridge, testified that after she had transferred Resident # 22 from his bed to a wheelchair, his “upper body fell forward” and she “was able to catch him before he fell out of the chair.”  P. Ex. 6 at 2.  Ms. Breckenridge reported that she had questioned “whether [Resident #22] was going to go to dialysis, since he fell forward in the chair.”  P. Ex. 6 at 2; see CMS Br. at 3, 5.  Although Ms. Breckenridge testified that she informed Resident #22’s nurse “to let her know that [she] caught him when he fell forward in the chair [because] Facility policy requires that [she] tell the nurse any time the resident has a fall or near fall event,” the near-fall event is not reported in progress notes.  Resident #22’s nurse testified that she had “no memory of any nursing assistant coming to [her] and reporting a change in condition,” yet recalled specific details about the food and drink consumed by Resident #22 at his breakfast meal that day.  P. Ex. 14 at 1-2.

CMS also discussed observations of Resident #22 immediately prior to his departure for dialysis.  CMS Br. at 3-5.  Ms. Rankin testified that, as the receptionist, she would see the residents waiting in the lobby to leave for dialysis appointments.  P. Ex. 23 at 1.  Ms. Rankin testified that, on April 5, 2017, she saw Resident #22 “drooling slightly in his sleep” while waiting in the lobby to be picked up for dialysis.  P. Ex. 23 at 2.  Ms. Rankin reported that because “it was the first time [she] saw him drool,” she asked his nurse “if she could check on him.”  P. Ex. 23 at 2.  Progress notes do not document this event, nor do progress notes document an assessment.  The Administrator testified that she had interviewed the bus driver, and that the bus driver had reported that Resident #22’s “head was down sleeping.”  P. Ex. 9 at 4.

Petitioner did not respond to CMS’s allegation that Resident #22’s near-fall while waiting to depart for dialysis evidenced a change in condition.  P. Br. at 11-15; see CMS Br. at 5 (arguing that episodes such as “falling forward in the chair and unable to remain upright in the chair without assistance” was an “attendant symptom” that had not been previously reported to Resident #22’s physician at 2:15 am); CMS Ex. 1 at 6.  In fact, in addressing

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another deficiency, Petitioner conceded that Resident #22 “started to fall forward in his wheelchair,” and that a “potential fall was averted” due to the intervention of its staff.  P. Br. at 18.  Petitioner has therefore not rebutted CMS’s allegation that Resident #22’s near-fall while seated in a wheelchair evidenced a worsening of his condition.

In arguing that Resident #22 did not have a change of condition, Petitioner claims that the evidence “consistently support[s] the facility’s position that lethargy was Resident #22’s usual state of being.”14  P. Br. at 12-13.  Petitioner argues that a registered nurse examined Resident #22 before he left for dialysis and “determined it was safe for him to go.”  P. Br. at 13 (citing P. Ex. 6 at 1).  However, the same registered nurse failed to provide a complete assessment, as evidenced by the dialysis communication form lacking assessments of mental status/level of consciousness, heart, lungs, edema/redness, skin concerns, and recent changes in condition.  CMS Ex. 2 at 31, 87; see P. Ex. 14 at 1 (testimony of Ms. Edwards that she had completed the dialysis communication form).  Further, even though Petitioner argues that Ms. Edwards determined it was “safe” for Resident #22 to leave for dialysis, Ms. Edwards reported an unawareness of occurrences throughout her shift evidencing a change in Resident #22’s condition.  P. Ex. 14 at 1 (Ms. Edwards’s testimony that Resident #22 “appeared as healthy on April 5, 2017, as he did any other day,” that she had “no memory of any nursing assistants coming to [her] and reporting a change in condition,” and had “no memory of any therapist coming to [her] and reporting lethargy or the performance of a sternal rub.”); but see P. Exs. 3 at 2 (testimony of Ms. Cloyd that she told Resident #22’s nurse of the suspected aspiration and that she had performed a sternal rub); 6 at 2 (testimony of Ms. Breckenridge that she told Ms. Edwards that Resident #22 had almost fallen); 15 at 1 (testimony of Ms. Frey that she had informed Resident #22’s nurse that she was unable to arouse Resident #22, even after performing a sternal rub); 23 at 2 (testimony of Ms. Rankin that she asked Ms. Edwards to check on Resident #22 because he was drooling in his sleep while awaiting the bus). 

Petitioner also argued that a nursing assistant had “detected no change in [Resident # 22’s] level of alertness” and that his “mental status was at baseline.”  P. Br. at 13 (citing P. Ex. 12 ¶ 5).  However, the same nursing assistant testified that the first time she cared for Resident #22 was on April 5, 2017, and she “didn’t know his ‘baseline’ or his ‘normal.’”  P. Ex. 12 at 1.  Further, Petitioner fails to acknowledge that only two days earlier, on April 3, 2017, a nurse had assessed that Resident #22’s mental status/level of

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consciousness was “alert.”  CMS Ex. 2 at 89.  Likewise, even though Petitioner had attributed a decrease in mental alertness to Resident #22’s anti-psychotic medications, Resident #22 had not been administered Seroquel since April 1, 2017.  P. Br. at 3; P. Ex. 28 at 87, 107.  

Despite the fact that Resident #22 fell forward in his chair (and still required a sternal rub to be aroused after nearly falling), had a suspected aspiration during lunch, and was observed, for the first time, drooling with his head down while waiting for a bus to dialysis, Petitioner argues that Resident #22 was functioning at a baseline level.  P. Br. at 12-15.  Curiously, the nurse who had assessed Resident #22’s change of condition did so in the in the early morning hours, when Resident #22 was presumably asleep, and was nonetheless able to recognize an increase in lethargy.  CMS Ex. 2 at 31. 

Petitioner argues the absence of documentation supports that Resident #22 did not have a change in condition, stating, “[t]he nursing notes are silent as to any event of increased lethargy.”  P. Br. at 13.  Likewise, Petitioner claims that  “[t]he medical records and staff interviews of those individuals most familiar with the resident . . . do not support CMS’ conclusion that Resident #22 was exhibiting increased lethargy later in the day on April 5, 2017, and/or that his lethargy was worse in the hour or two before he was to leave for dialysis.”  P. Br. at 13.  The flaw in this argument is that the lack of documentation in Petitioner’s records is due to Petitioner’s failure to document or accurately document information regarding Resident #22, rather than the absence of any such occurrences, as outlined below:  

• Ms. Edwards testified that she had to use a sternal rub to arouse Resident #22, yet she did not document her performance of a sternal rub in progress notes.  P. Ex. 14 at 1.
• Ms. Edwards testified that at breakfast, Resident #22 ate an entire bowl of oatmeal, ate a few bites of eggs, and drank an entire glass of juice (P. Ex. 14 at 1), yet contemporaneous records from April 5, 2017, indicate that Resident #22 had “five bites of cereal” (CMS Ex. 2 at 33) and had “poor” meal consumption that day.  CMS Ex. 2 at 87.
• The occupational therapist testified that she informed the nursing staff that she was unable to arouse Resident #22 after 10 minutes of effort, even after performing one or more sternal rubs.  P. Exs. 15 at 1; 28 at 103.  Yet, progress notes lack any report that Resident # 22 could not be aroused for therapy, nor do progress notes indicate that nursing staff assessed Resident #22 or obtained his vital signs at that time.

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• The speech therapist testified that Resident #22 had a suspected aspiration event during lunch (P. Ex. 3 at 2), yet she did not report the suspected aspiration in the clinical notes she entered on April 5, 2017.  P. Ex. 28 at 106.  Two days later, on April 7, 2017, the speech therapist amended her clinical notes to document, for the first time, the suspected aspiration.  CMS Ex. 2 at 72.  The speech therapist testified that she informed the nursing staff of both the suspected aspiration and that she had to perform a sternal rub to arouse Resident #22, “in case of bruising” (P. Ex. 3 at 2), yet progress notes do not document such notifications.  Further, progress notes do not document that nursing staff assessed Resident #22 after the suspected aspiration or monitored him for bruising or for distress related to the aspiration.  See CMS Ex. 2 at 72 (speech therapist’s report that she “reported [the] incident to nursing who stated they would continue to monitor [Resident #22] for distress as a result of [the] aspiration”).
• Ms. Breckenridge testified that Resident #22 “fell forward” but she was “able to catch him before he fell out of the chair,” and then informed Resident #22’s nurse of the near fall.  P. Ex. 6 at 2.  Although Ms. Breckenridge testified that she notified Ms. Edwards (P. Ex. 6 at 2), Ms. Edwards denied receiving notification of any change in condition.  P. Ex. 14 at 1.  Progress notes lack any documentation of a near-fall event, nor do progress notes indicate that nursing staff assessed Resident #22 after the near-fall event.
• Petitioner completed an unsigned dialysis communication form prior to sending Resident #22 to his dialysis appointment on April 5, 2017, yet the form lacks information that should have been communicated with the dialysis center, to include whether Resident # 22 had experienced any changes to his condition since his last appointment.  CMS Ex. 2 at 87; see CMS Ex. 2 at 31 (report of Resident #22’s change of condition at 2:15 am that morning).  Petitioner also failed to complete portions of the form pertaining to clinical assessments of mental status/level of consciousness, heart, lungs, and skin prior to his transfer.  CMS Ex. 2 at 87.
• A receptionist testified that she asked a nurse to check on Resident # 22 because he was drooling in his sleep while seated in a wheelchair and awaiting bus transportation to dialysis.  P. Ex. 23 at 2.  Progress notes lack this notification, and also lack any documentation that nursing staff assessed Resident #22. 

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Thus, Petitioner’s arguments that “nursing notes are silent as to any event of increased lethargy” and that “medical records . . . do not support CMS’ conclusion that Resident # 22 was exhibiting increased lethargy later in the day on April 5, 2017” are based on its repeated failures to assess Resident #22 and document his deterioration throughout the day. 

Appallingly, Petitioner claims that “the assertion that one cough during lunch” was evidence of aspiration by Resident #22 is a “lie.”  P. Br. at 23.  Apparently, like its own nursing staff (P. Ex. 14 at 1), Petitioner is unaware that the speech therapist reported that Resident #22 “exhibited [a] productive cough” after drinking, “began to have wet vocals as well,” and “cough[ed] multiple times,” and reported the incident to the nursing staff with the expectation that Resident #22 would be monitored “for distress as a result of [the] aspiration.”  CMS Ex. 2 at 72; see P. Ex. 3 at 2. 

Petitioner further claims that “a single episode of coughing while eating is not definite proof of aspiration” and that “[a] nursing home cannot be expected to call the physician every time a resident coughs, sneezes, or yawns.”  P. Br. at 14-15.  Just as shockingly, Petitioner alleges that “[t]o suggest that a single episode of coughing during a meal constitutes a ‘significant change’ is absurd.”  P. Br. at 15.  To be clear:  Petitioner’s own speech therapist documented that after she reported the event to nursing staff, she was informed that “they would continue to monitor . . . for distress as [a] result of aspiration.”  CMS Ex. 2 at 72.  Contrary to Petitioner’s insensitive claims, Resident #22’s suspected aspiration, or actual aspiration, is confirmed by its own records.  Petitioner’s denial of the need to report a change of condition related to an aspiration is premised on a misstatement of fact that Resident #22 simply coughed once.  P. Br. at 12-13. 

Petitioner also argues that any report of increasing lethargy on April 5, 2017, is “infinitely misleading.”  P. Br. at 13.  It is quite telling that Petitioner considered Resident #22’s presentation at the facility to be his “usual state of being” (P. Br. at 13), whereas the dialysis center staff was “clearly upset” when Resident #22 arrived in a “comatose” condition and in “real bad shape.”  P. Ex. 14 at 1-2.  In fact, Petitioner considered Resident #22, who had been asleep and drooling with his head down, as not being in any distress (P. Exs. 9 at 4; 12 at 1-2; 23 at 2), whereas EMS described a similar presentation in reporting that Resident #22 was in severe distress.  CMS Ex. 2 at 84-85.  Upon EMS’s arrival, Resident #22, who was in respiratory failure, was “sitting in the chair, unresponsive and drooling” and had been held upright in his chair by dialysis center staff (CMS Ex. 2 at 85), which mirrors his condition upon departure from the facility.  See P. Ex. 6 at 2 (reporting that Resident #22, who was unresponsive, had fallen forward out of his wheelchair but did not sustain a fall only because a staff member caught him); P. Ex. 23 at 2 (reporting that Resident #22 was seen, for the first time, to be drooling in his sleep while seated in his wheelchair).  Likewise, the hospital reported that Resident #22 “was brought to the dialysis unit today with altered mental status and was not responding to even painful stimuli.”  CMS Ex. 2 at 100.  Petitioner’s witnesses

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testified that no fewer than four occasions on April 5, 2017, Resident #22 was unresponsive such that he required a sternal rub, and on at least one occasion, Resident # 22 could not be aroused with the painful stimulus of a sternal rub.  P. Exs. 3 at 1; 6 at 2; 14 at 1; 15 at 1; 17 at 1.  And although EMS quickly identified signs of distress through an assessment that included lung sounds (decreased), the quality of breathing (agonal), and skin condition (cold), Petitioner omitted such assessments prior to sending Resident # 22 to dialysis.  CMS Ex. 2 at 87.  In fact, despite a reported change of condition at 2:15 am that morning and several unusual circumstances that required reporting to the nursing staff throughout the day, the only documented clinical assessment during the day shift is the incomplete dialysis communication form; progress notes are silent for any assessments or monitoring of vital signs.  CMS Ex. 2 at 87; see CMS Ex. 2 at 31 (reporting vital signs obtained at the time of the 2:15 am change of condition).

Resident #22 had advanced renal disease and severe congestive heart failure, and a hospital discharge report dated approximately two weeks earlier included a diagnosis of pneumonia.  P. Ex. 31 at 25.  There is no doubt that Resident #22 was in failing health and had a poor prognosis.  See, e.g., P. Ex. 10 at 1.  Nonetheless, Resident #22 and his family were not resigned to his “impending death” and expressed a desire that he be afforded life-sustaining measures.  P. Exs. 10 at 1; 28 at 88; see P. Ex. 10 at 1 (testimony of Dr. Butler, an outside physician, “Thus, upon admission . . . [Resident #22] was terminal and death was imminent.”).  However, Petitioner did not notify Resident #22’s physician of his significant deterioration on April 5, 2017, and he only received medical treatment after dialysis center staff recognized he was in distress.  But see P. Ex. 12 at 2 (testimony of facility CNA who “wheeled [Resident #22] into dialysis” who did not observe that Resident #22 was in any distress).

Petitioner attributes Resident #22’s condition that day to lethargy, which is defined by terms such as tiredness, weakness, or sleepiness.  Yet Resident #22 was not simply tired or weak:  throughout the day, staff members informed the nursing staff of significant events such as Resident #22 being unresponsive (and even not reacting to a painful stimulus), having a suspected aspiration, falling forward while seated in his chair, and drooling in his sleep while awaiting bus transportation to dialysis.  After Resident #22 initially had a change of condition for “increased lethargy” during the overnight hours, Petitioner should have vigilantly monitored him throughout the day shift.  Instead, Petitioner failed to recognize his continued deterioration, which was immediately evident when he arrived at the dialysis center in respiratory failure.  See CMS Ex. 2 at 85.

Not only did Resident #22’s care planning require physician notification of “physical/mental improvement or decline” and “increased confusion” (P. Ex. 28 at 89‑90), but the Medicare participation requirement at 42 C.F.R. § 483.10(g)(14) required physician notification when he experienced a significant change in his physical, mental, or psychosocial status or there was a need to alter treatment significantly.  Because Petitioner failed to notify Resident #22’s physician after his significant deterioration

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throughout the day shift on April 5, 2017, Petitioner was not in substantial compliance with participation requirements.

B. Petitioner has not submitted evidence showing that CMS’s determination of immediate jeopardy was clearly erroneous.

I must uphold CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) unless it is “clearly erroneous.”  42C.F.R. § 498.60(c).  The DAB directs that the “clearly erroneous” standard imposes on a facility 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.”  See, e.g., Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (citing Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)).

Other than baldly claiming that CMS’s finding of immediate jeopardy was clearly erroneous, Petitioner does not cite to evidence demonstrating that the determination of immediate jeopardy was clearly erroneous.  Petitioner instead focuses on the apparent source of the complaint to the state agency regarding Resident #22, whom Petitioner claims is a disgruntled former employee.  P. Br. at 22-23.  Regardless of the basis for the state agency’s initiation of a complaint investigation, the evidence establishes that Petitioner failed to notify Resident #22’s physician of the significant worsening of his condition on April 5, 2017.  

Petitioner does not provide any specific reasons why the aforementioned deficiency should not have been cited at the level of immediate jeopardy to resident health and safety.15   Rather, Petitioner makes the irrelevant and baseless claim that the state agency and CMS “were caught in [a disgruntled nurse’s] web of lies.”  I assure Petitioner that I have not been ensnared by this purported “web of lies”; the determinations herein are factually supported by the testimony of Petitioner’s own witnesses and the evidentiary record.  CMS correctly determined that the failure to notify Resident #22’s physician of his change in condition amounted to immediate jeopardy to resident health and safety, and Petitioner has not offered a basis for why this determination is clearly erroneous. 

The gravity of the jeopardy to Resident #22’s health and safety is captured by Ms. Edwards’s recollection of the telephone call from the dialysis center informing her that Resident #22 had been transferred to the hospital.  P. Ex. 14 at 1 (reporting that the

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caller was “clearly upset” and “nasty and accusatory” when she reported that Resident # 22 arrived for his appointment “comatose” and in “real bad shape”).  P. Ex. 14 at 1. 
Nonetheless, Petitioner attributes the immediate jeopardy determination to nothing more than the report of a disgruntled employee and the product of “one cough during lunch” being “taken to the extreme.”  P. Br. at 23. 

Despite the fact that Resident #22 had a reported change of condition on the previous shift, Petitioner utterly failed to recognize his continued deterioration throughout the day shift.  Resident #22 could not be aroused on at least one occasion that day, even with a sternal rub.  Even though a therapist reported a suspected aspiration, Petitioner failed to monitor Resident #22 for signs for distress, as had been expected by the therapist.  And even after Resident #22 inexplicably fell forward while simply seated in a chair, he remained unconscious and needed to be aroused with a sternal rub.  Resident #22 immediately thereafter lapsed back into sleep, at which time his head was down and he was drooling. 

Despite these occurrences, Petitioner did not document assessments of Resident #22 throughout the day, and omitted key assessment information required by its own dialysis communication form, which may have further revealed Resident #22’s distress.  CMS Ex. 2 at 87 (requiring assessment of lungs, skin, mental status/level of consciousness); see CMS Ex. 2 at 84-85 (reporting agonal breathing with decreased lung sounds, cold skin, and unresponsiveness).  Further, Resident #22’s presentation at dialysis mirrored his presentation immediately prior to his departure for his appointment.  Compare CMS Ex. 2 at 84-85 (unresponsive, unable to support himself in a chair, drooling with his head on his chest) with P. Exs. 9 at 4; 6 at 2; 23 at 2 (unresponsive, head down, drooling, and falling forward in his chair).  While the dialysis center staff and EMS recognized Resident #22’s severe distress and initiated immediate medical interventions, Petitioner remained oblivious to Resident #22 deterioration.  CMS Ex. 2 at 84-85. 

Petitioner submitted the testimony of Leon Butler, M.D., that “laboratory values are indicative of extreme congestive heart failure, and strongly suggest the likelihood of impending death” and that as a result of heart failure, “Resident #22 was terminal and death was imminent.”  P. Ex. 10 at 1.  However, heart failure was not a cause of Resident # 22’s death; he died from pneumonia as a consequence of septic shock and hyperkalemia.16   P. Exs. 10 at 2; 30.  By failing to notify Resident #22’s physician of his significant deterioration, Petitioner denied Resident #22 medical interventions his

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physician may have deemed necessary to address his deterioration, or alternatively, to make him more comfortable in his final hours.  Resident #22 expired within hours of his arrival at the hospital, and Petitioner has not shown, much less argued, how CMS’s citation of immediate jeopardy based on these circumstances was clearly erroneous.

C. Immediate jeopardy continued through and inclusive of October 3, 2017.

Once a facility is found to be out of substantial compliance, it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.  Ridgecrest Healthcare Ctr.,DAB No. 2493 at 15 (2013) (citing Premier Living & Rehab. Ctr., DAB No. 2146 at 23 (2008) and Lake City Extended Care Ctr., DAB No. 1658 at 12-15 (1998)).  The burden is on the facility to prove that it is compliant with program requirements, and not on CMS to prove that deficiencies continued to exist after they were discovered.  Asbury Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002).  Noncompliance found during a survey is “presumed to continue until the facility demonstrates that it has achieved substantial compliance.”  Taos Living Ctr.,DAB No 2293 at 20 (2009); see Pearsall Nursing & Rehab. Ctr. – North, DAB No. 2692 at 7 (2016) (affirming summary judgment where Petitioner “refer[red] broadly to ‘the evidence presented in [its] Response’” but “identifie[d] no specific evidence relevant to the material facts”). 

CMS determined that immediate jeopardy noncompliance began on April 5, 2017, and that Petitioner did not abate immediate jeopardy until October 4, 2017, at which time it initiated corrective actions.  CMS Exs. 6 at 1 (CMS notice); 11 at 1 (notification of immediate jeopardy); 13 at 1-2 (Petitioner’s allegation of compliance, reporting it had implemented systemic, training, and quality assurance corrective actions, effective October 4, 2017, to address, in part, identification of resident changes in condition).  Although Petitioner argues that “the most [it] was out of compliance was one day,” it provides no basis to support that it returned to compliance within a single day, in that it has not identified any corrective measures taken in that short timeframe.  P. Br. at 23.  The record does not evidence that Petitioner abated immediate jeopardy prior to October 4, 2017, nor has Petitioner demonstrated that the cited duration of immediate jeopardy noncompliance from April 5 through and inclusive of October 3, 2017, is clearly erroneous.  See 42 C.F.R. §§ 488.401, 488.402(d); see, e.g., Brian Ctr. Health & Rehab./Goldsboro, DAB No. 2336 at 7-8 (2010). (A “determination by CMS that [an] SNF’s ongoing [non]compliance remains at the level of immediate jeopardy during a given period constitutes a determination about the ‘level of noncompliance’ and, therefore, is subject to the clearly erroneous standard of review under section 498.60(c)(2).”)

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D. The CMP is reasonable. 

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, to include a CMP.  In determining whether the CMP imposed against Petitioner is 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) the 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 listed 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.  Unless a facility contends that a particular regulatory factor does not support the CMP amount that CMS proposed, an ALJ must sustain the CMP.  Coquina Ctr., DAB No. 1860 at 32 (2002).

The DAB has explained that “[i]t is settled law that ALJ review of the reasonableness of CMP amounts imposed by CMS is de novo.”  Fireside Lodge Retirement Ctr., Inc., DAB No. 2794 at 19 (2017).  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.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002).  The DAB has explained that “[t]he determination of whether a CMP amount is reasonable is a conclusion of law, not a finding of fact.”  Cedar Lake Nursing Home, DAB No. 2344 at 12 (2010), aff’d sub nom. Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 458 (5th Cir. 2010). 

The regulations specify that a CMP that is imposed against a facility on a per-day basis will fall into one of two ranges.  42 C.F.R. §§ 488.408, 488.438.  The upper CMP range of $3,050 to $10,000 per day, as adjusted annually under 45 C.F.R. part 102, is applicable here.  42 C.F.R. § 488.438(a)(1)(i).  In assessing the reasonableness of a CMP, an ALJ looks at the per-day amount, rather than the total accrued CMP.  See Kenton Healthcare, LLC,DAB No. 2186 at 28 (2008).  Pursuant to 42 C.F.R. § 488.408(g)(2), a facility cannot appeal CMS’s choice of a remedy, and an appeal of a CMP is limited to review based on the regulatory factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404(a)-(c).  See, e.g., Senior Rehab.,DAB No. 2300 at 19-20. 

CMS imposed a per-day CMP of $6,394 for the period of immediate jeopardy noncompliance from April 5 through October 3, 2017.  The per-day CMP of $6,394 is the minimum permissible amount, in that penalties at that time ranged from $6,394 to

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$20,965 for immediate jeopardy deficiencies.  42 C.F.R. §§ 488.408(e)(1)(iii), 488.438(a)(1)(i); 45 C.F.R. § 102.3 (2017); see 82 Fed. Reg. 9174, 9182 (Feb. 3, 2017).  Petitioner argues that the CMP “was excessive and in violation of 42 C.F.R. [§] 488.438,” but has not offered support for this statement, especially considering that the per-day CMP could not be any lower for an immediate jeopardy deficiency.  A per-day CMP of $6,394, at the floor of the CMP range for immediate jeopardy deficiencies, is entirely reasonable pursuant to 42 C.F.R. § 488.438(f). 

IV.  Conclusion

For the reasons discussed above, I find that the facility was not in substantial compliance with 42 C.F.R. § 483.10(g)(14) from April 5 through October 3, 2017.  A $6,394 per day CMP for immediate jeopardy noncompliance during that time period is reasonable. 

1. The survey cited noncompliance with the following six participation requirements:  42 C.F.R. § 483.10(g)(14) (F157, notification of changes) 42 C.F.R. § 483.21(b)(2) (Tag F282, provide services in accordance with plan of care), 42 C.F.R. §§ 483.24, 483.25(k)(1) (Tag F309, provide care/services for highest well being), 42 C.F.R. § 483.70 (Tag F490, administration), 42 C.F.R. § 483.70(i)(l)(5) (Tag F514, maintain complete and accurate resident records), and 42 C.F.R. § 483.75 (F520, maintain effective quality assessment and assurance committee).  Because I find that Petitioner’s noncompliance with 42 C.F.R. § 483.10(g)(14), alone, supports the imposition of the minimum per-day CMP of $6,394 for immediate jeopardy deficiencies, I need not address the remaining deficiencies.  See Claiborne-Hughes Health Ctr. v. Sebelius, 609 F.3d 839, 847 (6th Cir. 2010) (“[O]nce the ALJ determined that the deficiencies . . . sufficed to support the imposition of sanctions, he was free, in the interests of judicial economy, not to continue making additional rulings.”).
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2. Scope and severity levels are used by CMS and state survey agencies when selecting remedies.  The scope and severity level is designated by letters A through L.  Pub. 100-7, State Operations Manual (SOM), ch. 7, § 7400.5.1 (Factors That Must be Considered When Selecting Remedies), “Assessment Factors Used to Determine the Seriousness of Deficiencies Matrix” (table) (Rev. 63, effective Sept. 10, 2010 (applicable at the time of the survey at issue)); see SOM, ch. 7, § 7400.3.1 (Matrix for Scope & Severity) (Rev. 185, effective Nov. 16, 2018) (current version)); see also 42 C.F.R. § 488.408.  A scope and severity level of “J” indicates an isolated instance of immediate jeopardy to resident health or safety.  SOM, ch. 7, § 7400.5.1 (Rev. 63, effective Sept. 10, 2010).  Immediate jeopardy exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.
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3. Because Petitioner did not appeal the deficiencies cited at the non-immediate jeopardy level, I need not address the duration of non-immediate jeopardy noncompliance and the imposition of enforcement remedies after Petitioner’s abatement of immediate jeopardy on October 4, 2017.  See Request for Hearing; CMS Exs. 6 at 2; 9.
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4. This case was reassigned to me on March 8, 2019.
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5. Findings of fact and conclusions of law are in bold and italics.
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6. The National Institutes of Health (NIH) National Library of Medicine (NLIM) reports that olanzapine (brand name “Zyprexa”) is used to treat schizophrenia and bipolar disease, and is an anti-psychotic medication.  See https://medlineplus.gov/druginfo/meds/a601213.html (last visited May 10, 2021). 
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7. The NLIM reports that quetiapine (brand name “Seroquel”) is used to treat symptoms of schizophrenia, bipolar disorder, and depression, and is an anti-psychotic medication.  See https://medlineplus.gov/druginfo/meds/a698019.html (last visited May 10, 2021).
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8. Petitioner did not submit testimony for Ms. Rowan. 
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9. Both parties submitted progress notes for Resident #22, but only CMS submitted April 5, 2017 progress notes.
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10. It appears that “total A” is a typographical error and that Ms. Frey may have been referencing her use of a towel.
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11. A sternal rub is a painful stimulus.  Although a sternal rub has a clinical purpose, such as assessing the neurological status of an unconscious individual, Petitioner’s staff habitually administered sternal rubs to waken Resident #22 or get his attention.  See, e.g., P. Ex. 17 at 1 (testimony that Resident #22 would “ignore” people unless he was roused with a sternal rub).  With respect to Ms. Frey’s claim that she uses a sternal rub because a resident may “feign sleep” to avoid therapy, I note that the administration of a painful stimulus to enforce compliance with a treatment plan may impede a resident’s ability to exercise his or her right to refuse treatment.  See P. Ex. 15 at 1.
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12. Petitioner’s witnesses testified of the habitual performance of sternal rubs on Resident # 22.  P. Exs. 3 at 1; 4 at 1; 6 at 2; 10 at 1; 11 at 1; 14 at 1; 15 at 1; 17 at 1; 23 at 1.  If sternal rubs were, in fact, administered with such regularity, it is unclear why Ms. Cloyd would notify a nurse that she had administered a sternal rub solely out of concern for bruising.  P. Ex. 3 at 2.  Despite the fact that Petitioner’s staff performed at least four sternal rubs on the day shift of April 5, 2017, alone (P. Exs. 3 at 1; 6 at 2; 14 at 1; 15 at 1), facility records and progress notes lack any discussion of active monitoring for bruising. 
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13. Facility records and progress notes do not document any reddened areas on Resident # 22’s skin.  See P. Exs. 3 at 2; 6 at 2.
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14. Petitioner argued, in support of its claim that lethargy was “Resident #22’s usual state of being,” that he would “refuse to open his eyes” and “kept his eyes closed during care.”  P. Br. at 12-13.  However, Petitioner has failed to explain why Resident #22’s refusal to open his eyes or his habit of keeping his eyes closed is solely attributable to lethargy.  I note that Petitioner had assessed that Resident #22 had “highly impaired vision” and blindness, visual field deficit, diabetic retinopathy, and decreased visual acuity.  P. Ex. 28 at 19, 62.
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15. Petitioner argues that Resident #22’s need for emergent dialysis when he arrived at the hospital supports its decision to send Resident #22 to dialysis.  P. Br. at 23.  However, Petitioner has not reconciled how a dialysis treatment would benefit an individual who was unable breathe on his own.
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16. I dismiss Petitioner’s claim that Resident #22 died from a “heart attack,” which Petitioner based solely on a social media post by Resident #22’s granddaughter.  P. Br. at 20 (citing P. Ex. 37).  Probative evidence establishes that Resident #22’s immediate cause of death was pneumonia due to or as a consequence of septic shock and hyperkalemia.  P. Ex. 30 (death certificate); see CMS Ex. 2 at 113 (hospital death summary).
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