Riverside Nursing and Rehabilitation Center, DAB CR5921 (2021)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a civil money penalty of $2,200 per day against Petitioner, Riverside Nursing and Rehabilitation Center, for each day of a period that began on December 17, 2019, and that ran through February 4, 2020. 

I. Background

CMS moved for summary judgment and Petitioner opposed the motion.  I denied CMS’s motion and scheduled the case for a hearing.  The parties then waived the in-person hearing and agreed to submit the case for decision on the written record.  See E-mail from Lisa Steele, counsel for CMS, June 9, 2021.

In its final brief (Respondent’s Final Brief) CMS continues to request that I enter summary judgment in its favor.  Petitioner continues to oppose the motion.  There is no need that I evaluate this case using the criteria for deciding whether to grant summary judgment because each party waived its right to an in-person hearing.  In this decision, I resolve disputed issues of fact, where they exist.

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CMS filed 21 exhibits on its behalf, identified as CMS Ex. 1-CMS Ex. 21.  Petitioner filed two exhibits, identified as P. Ex. 1 and P. Ex. 2.  Neither party objected to my receiving exhibits.  I receive all of the identified exhibits into the record.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether Petitioner failed to comply substantially with Medicare participation requirements and whether CMS’s civil money penalty determination is reasonable in amount and duration.

B. Findings of Fact and Conclusions of Law

CMS asserts that Petitioner failed to comply substantially with five Medicare participation regulations.  I address all of these allegations in this decision.  That said, and as I discuss below, Petitioner’s noncompliance with just two of these regulations – 42 C.F.R. §§ 483.12 and 483.25 – is sufficient to justify the civil money penalty that CMS determined to impose.

This case involves residents who were receiving hospice care and residents who were receiving palliative care.  In the case of a resident who is identified as Resident 1, the resident was receiving hospice care at one point, had ceased receiving it, and was receiving palliative care during dates when Petitioner’s compliance with regulatory requirements is at issue.

Both CMS and Petitioner use the terms “palliative care” and “hospice care” interchangeably and, often, inaccurately, to describe the care that Petitioner gave to its residents.  The parties frequently confuse one form of care with the other.  That is unfortunate, because palliative care is not hospice care and it is important to distinguish between the two categories of care.  A facility’s obligations to a resident to whom it provides palliative care are quite different from its obligations to a resident who is receiving hospice care. 

Hospice care may be reimbursed by Medicare in the circumstances described at section 1861(dd)(1) of the Social Security Act.  Skilled nursing facilities’ involvement with hospice care is governed by 42 C.F.R. § 483.70(o).  Hospice services are provided to an individual who is at the end stage of a terminal illness.  It is not uncommon for third party providers to supply hospice services to residents of a skilled nursing facility.  In that circumstance, regulations mandate that the skilled nursing facility ensure that the services are being provided correctly.

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Residents in Petitioner’s facility receiving hospice care, or their representatives, executed a detailed agreement describing, among other things, the services that would be provided under hospice care.  CMS Ex. 18 at 10-38.

Palliative care, by contrast, is not specifically defined by regulations governing Medicare reimbursement or the services provided by skilled nursing facilities.  Because it is not defined, it is care that must meet the criteria for all care that a nursing facility provides, to be reimbursable.  Furthermore, a skilled nursing facility must provide the same quality of care for palliative care as it provides for all other forms of care.  Failure to do so violates regulatory requirements governing the services that skilled nursing facilities provide. 

Neither CMS nor Petitioner offered a definition of palliative care.  I take notice that the term is widely recognized to describe a means by which medical professionals including physicians and nurses manage pain and other symptoms of serious illness.  Palliative care is intended to augment necessary nursing care, not replace it.  For example, the Mayo Clinic defines “palliative care” as follows:

Palliative care is specialized medical care that focuses on providing patients relief from pain and other symptoms of a serious illness, no matter the diagnosis or stage of disease. Palliative care teams aim to improve the quality of life for both patients and their families. This form of care is offered alongside curative or other treatments you may be receiving.

Palliative care is provided by a team of doctors, nurses and other specially trained people. They work with you, your family and your other doctors to provide an extra layer of support that complements your ongoing care . . . . 

See Mayo Clinic, Palliative Care, https://www.mayoclinic.org/tests-procedures/palliative-care/about/pac-20384637 (last visited August 9, 2021).

In this decision I take care to state when palliative care is at issue and when hospice care is at issue and to try not to confuse the terms.

1. Noncompliance with 42 C.F.R. §§ 483.12 and 483.25

Regulations governing Medicare participation of a skilled nursing facility require that the facility ensure that its residents be free from neglect, abuse, and misappropriation of resident property.  The term “neglect” is defined at 42 C.F.R. § 483.5 to mean the failure to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.  A complementary regulation, 42 C.F.R. § 483.25, requires that a facility provide care to each of its residents of a quality that satisfies professional standards of practice.

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CMS alleges that Petitioner failed to comply substantially with these regulatory requirements in providing care to a resident who is identified as Resident 1.  I find that the evidence overwhelmingly supports CMS’s assertions.1  In violation of regulatory requirements, Petitioner failed to address Resident 1’s pain and the causes for his resistance to care and failed to deal appropriately with the resident’s deteriorating physical condition.  In particular, Petitioner’s staff failed to consult with a physician as the resident’s condition rapidly went downhill.

On the dates at issue – between December 17, 2019, and February 4, 2020 – Resident 1 was a 49 year old individual who suffered from chronic leukemia and who had sustained amputations of both of his legs.  CMS Ex. 5 at 1. 

During a previous admission to Petitioner’s facility, the resident had received hospice care.  The resident terminated his hospice agreement on November 13, 2019, and scheduled a surgical revision of his amputation wounds.  CMS Ex. 5 at 287.  That was followed by a hospital stay for surgery and recovery.  The resident returned to Petitioner’s facility on December 5, 2019, in part, so that his surgical wounds would heal or at least improve.  Id. at 6.

The resident did not return to hospice care with his readmission.  On December 10, 2019, the resident signed a consent form for palliative care.  The survey report refers to an excerpt from the document that the resident signed, quoting it as saying:  “The care and services the resident receives should continue to meet standards of practice for nursing services, dietary services, social services, and any other care or services necessary for the resident to be in a safe comfortable environment.”  CMS Ex. 1 at 5.  That language is consistent with regulatory requirements, and it reaffirms Petitioner’s duty to provide all necessary care to the resident to address his condition, including his surgical wounds.

By any measure, Resident 1’s stay at Petitioner’s facility beginning with December 5, 2019, was an abject failure to promote improvement of, much less recovery from, the resident’s surgical wounds.  That stay ended on January 7, 2020, when the resident was readmitted to a hospital.  On that date, the hospital staff found that the resident had a: “horrific wound on his [left] leg with necrotic femur protruding through necrotic surrounding tissue.”  CMS Ex. 5 at 220.

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Petitioner’s record of the care that Resident 1 received during his stay graphically describes the deterioration of the resident’s condition.

The deterioration was neither subtle nor hidden.  A nurse’s note made on December 16, 2019, described the wound on the resident’s left leg as displaying slough with a “large amount of purulent drainage,” a sign of infection.  CMS Ex. 5 at 4.  On December 20, a nurse again observed the wound to manifest a large amount of “purulent/serous drainage.”  Id. at 3.  On December 22, a nurse commented that the resident’s wound had deteriorated.  The nurse noted that the wound manifested increased slough and purulent drainage.  Id. 

The deterioration of the resident’s wound continued and accelerated.  A nurse’s note of December 26, 2019 states that the resident’s femur was now exposed and that the wound was covered with eschar (dead tissue).  CMS Ex. 5 at 2.  On December 29, 2019, a nurse described the wound on the resident’s left leg as displaying “100% slough & purulent drainage to wound bed with the bone exposed.  Surrounding skin also noted with 100% eschar.”  Id.  On January 6, 2020, a nurse commented that the resident’s wound continued to deteriorate, now showing 100% slough to the wound bed.  The wound was covered with eschar and the resident’s femur was exposed.  Id. at 1.

Resident 1 was uncooperative after his return to Petitioner’s facility on December 5, 2019.  I have no doubt that his behavior contributed to the dramatic deterioration of his surgical wound. The nurse’s notes are replete with observations that the resident removed his dressings, that he picked at his wounds, and that he sometimes scratched or dug at the wounds with objects.  CMS Ex. 5 at 1-5.  Petitioner’s staff consistently advised the resident that this behavior was against his interest, and they warned him of the likely adverse consequences of his behavior, to no avail.

I infer that the resident removed his dressings and picked at his wounds because he was in pain.  On December 11, 2019, he told a member of Petitioner’s staff that he was in a lot of pain and that the pain limited his interest in engaging in activities.  CMS Ex. 5 at 4.

The resident did not see a physician during this period when his leg wound dramatically deteriorated.  No physician witnessed the extent and scope of deterioration, and no physician addressed the evident reason for that deterioration and the underlying cause of the resident’s behavior.  Petitioner did have Resident 1 examined by a nurse practitioner on December 30, 2019.  CMS Ex. 5 at 281-284.  That was well after the staff observed that the resident’s leg wound was deteriorating.  There was no follow up visit even though the wound continued to deteriorate rapidly. 

There is nothing in the record to suggest that Petitioner’s staff consulted with a wound specialist about the resident’s condition during the resident’s stay.

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The resident was supposed to visit a wound specialist and an oncologist during his post-surgical care at Petitioner’s facility.  The horrific deterioration of the resident’s wound might have been averted or at least ameliorated had he at least seen a wound specialist.  However, his scheduled appointments were canceled.  CMS contends that the appointments were canceled by Petitioner’s staff, and it offers evidence to support that assertion.  In an interview with a surveyor, Petitioner’s director of nursing admitted that the staff canceled the appointments and that they did so because the resident was receiving palliative care.  CMS Ex. 1 at 8.  A nurse practitioner also stated that Resident 1’s physician appointments were canceled because the resident was receiving palliative care.  Id.  Resident 1 denied that he canceled his appointments or that he requested that they be canceled.  Id. at 8-9.

Petitioner asserts that the appointments were canceled only because the resident requested that they be canceled.  Contradicting what he said in his interview with a surveyor, Petitioner’s director of nursing asserts in a written declaration that Resident 1 made and canceled appointments with physicians.  P. Ex. 2 at 2.  In an undated and unsworn statement, Petitioner’s assistant director of nursing avers that a physician’s appointment scheduled for December 17, 2019 was canceled at the resident’s request.  CMS Ex. 5 at 354.  In another unsworn statement, a staff member who is evidently a nurse asserts that he or she canceled physician appointments at the resident’s request.  Id. at 11. 

Resident 1’s treatment records do not coherently explain why the scheduled appointments were canceled.  A nurse’s note of December 17, 2019 states that the resident’s visits to his oncologist and vascular surgeon on that date had been canceled without expressing a reason for the cancelation.  CMS Ex. 5 at 4.  However, the note comments that the resident is “on palliative care.”  Id.  On the next day, the resident denied to a nurse that he had requested that his appointments be canceled, and he agreed to attend rescheduled appointments.  Id. at 3.  On December 27, 2019, the resident told a nurse that he wanted to attend an appointment with his oncologist.  Id. at 2. 

However, on December 30, the appointment was again canceled.  According to the nurse’s notes, the resident was aware of the cancelation and agreed to it.  CMS Ex. 5 at 1.

The weight of the evidence supports the conclusion that Resident 1 canceled his physicians’ appointments or that he asked Petitioner’s staff to cancel the appointments.  It also supports the conclusion that Petitioner’s staff did little or nothing to encourage Resident 1 to keep his appointments.  I infer that Petitioner’s staff concluded that sending the resident to physicians’ appointments was not urgent because the resident was receiving palliative care.  For Petitioner, palliative care became an excuse not to push hard to assure that the resident received the care that he urgently needed.

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The inference that I draw from the record of Resident 1’s care is that Petitioner’s staff concluded that there was little that could be done for the resident aside from changing his dressings and warning him not to remove them and to interfere with his wounds.  The staff did not do their utmost to help the resident, having concluded that his condition was intractable.  For Petitioner’s staff, palliative care was a shorthand for trying to keep the resident comfortable and not doing much else for him.

What should the facility have done for Resident 1 – consistent with the resident’s needs and the applicable standards of care – during the period after his return to Petitioner’s facility?  First, Petitioner failed to provide the resident with the palliative care that it had agreed to give to him.  The purpose of palliative care is to provide extra assistance to a resident in order to relieve symptoms, including pain.  Petitioner’s staff did not, during the resident’s December 2019-January 2020 stay, consider that the resident’s pain had become intractable, and that additional assistance might be in order.  The resident’s record is devoid of assessments of the resident’s pain or discussion of whether his pain medication regime needed to be adjusted.

Second, Petitioner’s staff should have assessed and addressed the causes of the resident’s uncooperative behavior.  It is true that the staff constantly reminded Resident 1 that he should not remove his dressings and that he should not pick at his wounds.  However, the record is devoid of any assessment of the underlying reason for this behavior.  The staff did not research, for example, whether intractable pain was causing the resident to behave as he did. 

Third, as the resident’s condition deteriorated, the need became urgent for Petitioner’s staff to seek expert advice concerning how to halt or reverse the decline.  The staff did not consult with the resident’s wound specialist.  Indeed, there is nothing in the record to show that the wound specialist was made aware of the progressive and dramatic deterioration of the resident’s condition between December 16, 2019 and January 7, 2020.  Cancelation of the resident’s appointments to see the specialist — even if the appointments were canceled at the resident’s request — did not relieve the staff of the duty to communicate and consult with that specialist. 

Petitioner’s director of nursing avers in his declaration that:  “when purulent drainage was noted in the resident’s wound, the facility called the attending physician’s office.”  P. Ex. 2 at 2.  He goes on to state that the condition of the resident’s wound was assessed by a nurse practitioner, who ordered that the resident receive antibiotics.  Id.  A nurse practitioner did see the resident on December 30, 2019.  CMS Ex. 5 at 281-284.  The visit was too little and too late, considering the progression of the resident’s condition.  The visit occurred two weeks after staff observed purulent drainage from the resident’s wound and after the wound had substantially deteriorated.  That was the only intervention by a physician or a nurse practitioner during the resident’s stay.  As the record amply demonstrates, the resident’s condition deteriorated dramatically in the week that

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followed.  There is nothing in the record to suggest that this additional deterioration prompted Petitioner’s staff to consult additionally with the physician or to reconsider his plan of care prior to January 7, 2020.

The failures that I have documented consist of:  failure to determine the reasons for the resident’s uncooperative behavior; failure to consider revising the resident’s plan of care to address the deterioration of the resident’s wound; and failure to consult with a qualified physician.  This constitutes noncompliance with regulatory requirements because they placed the resident at a risk of harm resulting from his not receiving the treatment that he was entitled to receive. 

I have considered Petitioner’s defenses and I find them to be without merit.

Petitioner’s principal argument is that Resident 1 was the victim of his own choices.  Petitioner’s Closing Brief at 12-14.  As support for this, Petitioner points to the resident’s cancelation of his physician appointments and his thwarting of the staff’s attempts to treat his surgical wounds.

As I have discussed, Resident 1 was an extremely difficult and frequently uncooperative patient and his actions contributed to the deterioration of his condition.  It may well be that the resident would have remained uncooperative, and his condition might have deteriorated no matter what interventions Petitioner’s staff attempted.  That possibility does not excuse the staff’s failures in this case. 

Petitioner also argues that, during the eight days between December 30, 2019, and January 7, 2020, Resident 1 received his prescribed treatments and medications under the supervision of a licensed prescriber of care.  Petitioner’s Closing Brief at 14-15.  Petitioner asserts that there can be no noncompliance because the resident’s care was appropriate during this eight-day period.  Id.

I do not take issue with Petitioner’s contention that the resident received the care that was ordered for him during the period between December 30, 2019, and January 7, 2020.  However, that care was inadequate by any measure and Petitioner’s staff should have seen that it was.  During that period, Resident 1’s condition declined catastrophically.  And yet, Petitioner’s staff sought no additional consultation during the period and did not consider whether the treatment regime that had been ordered for the resident was inadequate and needed to be revised or modified.

2. Noncompliance with 42 C.F.R. § 483.21(b)(1)

The relevant regulation requires a skilled nursing facility to develop and implement a comprehensive written plan of care for each of its residents.  The plan must include

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measurable objectives and time frames to meet each resident’s medical, nursing, mental, and psychosocial needs as are identified in a comprehensive assessment of that resident.

CMS alleges, and I find, that Petitioner failed to satisfy care planning requirements for four of its residents, identified as Residents 1, 4, 8 and 9.  The evidence establishes that Petitioner failed appropriately to plan care for two of these residents (Residents 1 and 4) and failed to implement care plans for two additional residents (Residents 8 and 9). 

I have discussed Resident 1’s situation in detail, above.  Although Petitioner and the resident agreed that he would receive palliative care, his care plan is devoid of any reference to that treatment mode.  CMS Ex. 5 at 177-192.  Given that palliative care is intended to provide additional services to address a resident’s symptoms, including pain, the resident’s plan of care should have specified exactly what additional palliative services he was to receive.  It did not.  Furthermore, the deterioration in the resident’s condition during his December 2019-January 2020 stay mandated that the staff reassess the resident and consider revising his plan of care.  Staff failed to do so.

Resident 4, a demented and non-verbal individual, resided in Petitioner’s facility beginning in July 2015.  CMS Ex. 1 at 13.  The resident received hospice services.  However, the resident’s plan of care had not been updated to describe hospice services since January 2019.  CMS Ex. 6 at 12.  The plan of care did not contain a current description of the services that the resident was receiving nor were there assessments to determine whether those services were appropriate.

Residents 8 and 9 were receiving therapeutic diets that addressed their unique medical conditions.  CMS Ex. 1 at 14-17.  As I discuss in more detail below, Petitioner’s staff served each of these residents food items that were prohibited by their respective diets in violation of the residents’ plans of care.

Petitioner offers no meaningful defense to this evidence.  As regards Resident 1, Petitioner avers that the “evidence establishes that the facility did develop and implement a comprehensive person-centered care plan . . . .”  Petitioner’s Closing Brief at 15.  That is unresponsive to evidence showing that Petitioner did not provide a plan of care for the resident’s palliative care or consider revising the plan of care as the resident’s condition deteriorated.

With respect to Resident 4, Petitioner contends that CMS presents only “garbled columns of information from the resident’s medical records.”  Petitioner’s Closing Brief at 15.  Additionally, Petitioner contends that it did care plan for the resident’s hospice care.  Id. at 15-16.  However, Petitioner does not address its failure to review or update the resident’s care plan.

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As for Residents 8 and 9, Petitioner avers that it did care plan these residents’ therapeutic diets.  Petitioner’s Closing Brief at 16-17.  It contends that allegations that the residents received prohibited food items are unfounded.  However, the issue isn’t whether Petitioner planned these residents’ care but whether it implemented the residents’ care plans.  As I discuss below, Petitioner’s assertions notwithstanding, the evidence establishes that these residents were served prohibited food items.

 3. Noncompliance with 42 C.F.R. § 483.70(o)(1)-(2)

The regulation at issue imposes duties on a skilled nursing facility when a resident receives hospice services.  It mandates that facilities assure that these services are provided in keeping with professional standards of care.  The regulation requires that, for each resident of a facility who is receiving hospice care, the facility and the hospice must execute a written agreement that:  delineates the services that the hospice will provide; describes the hospice’s responsibilities for determining an appropriate hospice plan of care; and states what services the facility will continue to provide to the resident.  42 C.F.R. § 483.70(o)(2)(ii)(A)-(C).  The agreement must also contain a provision that states that the facility will immediately notify a hospice about a significant change in a resident’s physical, mental, social, or emotional status and about clinical complications that suggest a need to alter a resident’s plan of care.  42 C.F.R. § 483.70(o)(2)(ii)(E)(1)-(2).

CMS alleges that Petitioner failed to perform its regulatory duties in providing care for Residents 1, 4, 5, and 7.  As respects Resident 1, CMS asserts that Petitioner failed to coordinate with a hospice the palliative care that the resident received in December 2019 and January 2020.  CMS contends additionally that Petitioner did not comply with regulatory requirements in that it failed to ensure that Residents 4, 5, and 7, or their representatives, understood what hospice services the residents would receive.  Id. at 18.

The evidence does not support CMS’s allegations concerning the care that Petitioner provided to Resident 1.  Resident 1 received hospice services during an admission that was prior to his December 2019-January 2020 stay at Petitioner’s facility.  However, he did not receive hospice services between December 2019 and January 2020.  His palliative care was not hospice services and there was no agreement between the resident and a hospice service during the December 2019-January 2020 stay.  Consequently, Petitioner was not obligated to execute an agreement with a hospice during this time period.

Nor does the evidence support CMS’s allegations concerning the care that Petitioner provided to Resident 4.  CMS contends that a responsible family member complained that Petitioner had failed to provide sufficient information about the services that were provided to the resident.  CMS Ex. 20 at 20-21.  Petitioner rebutted this contention with evidence that the resident’s representative was aware that the resident was receiving

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hospice care and was comfortable with the services being provided to her.  CMS Ex. 6 at 1. 

The evidence that CMS offered concerning Resident 5 is also unpersuasive.  CMS cites an interview with the resident’s representative who complained that Petitioner’s staff had not adequately explained the services provided as elements of palliative care.  CMS Ex. 20 at 22.  However, and as I have explained throughout this decision, palliative care is not hospice care.  Even if Petitioner inadequately described palliative care services, that does not comprise noncompliance with the regulation governing hospice care and the facility’s duties when hospice care is provided.

Resident 5 began receiving hospice care on October 19, 2019.  CMS Ex. 20 at 21-22.  That obligated Petitioner to comply with the requirements of 42 C.F.R. § 483.70(o) in overseeing the hospice care that the resident received.  However, CMS has not made any specific allegations about Petitioner’s compliance with this regulation.

I find that Petitioner failed to comply with its regulatory duties concerning Resident 7’s receipt of hospice care.  CMS alleges that, in the case of this resident, Petitioner relied on the resident’s consent for hospice services that the resident was not capable of providing due to his dementia.  As of January 2020, Resident 7 was diagnosed to be suffering from severe cognitive impairment.  CMS Ex. 20 at 23.  He had received hospice care beginning in May 2019 and had signed a form dated May 2, 2019 stating that he agreed to admission to hospice care.  Id. at 22-23.

Petitioner’s defense to this evidence is to speculate that the resident’s severe dementia in January 2020 may not necessarily be indicative of his mental state eight months previously.  I find that assertion to be unimpressive.  Petitioner offered no evidence to show that the resident’s dementia had a sudden onset, as Petitioner suggests may have been the case.  Absent such proof, I infer that the resident’s dementia was progressive and that he was not capable of delivering informed consent to hospice services in May 2019.

 4. Noncompliance with 42 C.F.R. § 483.60(d)(4)-(5)

The applicable regulation requires a skilled nursing facility to provide its residents with food that accommodates the residents’ allergies, intolerances, and preferences.  Additionally, it directs facilities to serve residents appealing options of similar nutritive value when the residents choose not to eat food that is initially served or request a different meal choice.

CMS alleges that Petitioner failed to comply with this regulation in serving food to two residents, Residents 8 and 9.  These allegations are supported by the evidence.

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Both residents complained to surveyors that they often were served food items that are prohibited by their dietary restrictions.  CMS Ex. 19 at 8-12.  Evidence shows that Resident 9 received food that was prohibited by her dietary restrictions.  Id.; see e.g., , CMS Ex. 10.  Petitioner offered no defense to this evidence except to assert that CMS did not prove that Petitioner habitually served incorrect food items to residents.

Petitioner’s defense is without merit as a matter of law.  Nothing in the regulations limits noncompliance to “habitual” failure to provide residents with appropriate food.  Furthermore, Petitioner did not rebut the assertions of the two residents that they often were served inappropriate food items.

5. Remedy

The remedy that CMS determined to impose is a civil money penalty of $2,200 per day for each day of a period that began on December 17, 2019, and that ran through February 4, 2020.  I find the remedy to be reasonable, both in amount and in duration.

The penalty amount falls within the range of per-diem civil money penalties that CMS may impose for noncompliance that is substantial, but that does not amount to immediate jeopardy for residents of a facility.  42 C.F.R. § 488.438(a)(1)(ii); 45 C.F.R. § 102.1.  The penalty amount in this case is about one-third of the maximum daily penalty amount that CMS may impose for non-immediate jeopardy level deficiencies.

CMS cites two bases for the penalty amount:  first, the seriousness of Petitioner’s noncompliance, especially its noncompliance with the requirements of 42 C.F.R. §§ 483.12 and 483.25 in providing care for Resident 1; and second, Petitioner’s history of noncompliance. 

The seriousness of a facility’s noncompliance and its compliance history are both factors that I may weigh in deciding whether a penalty amount is reasonable.  42 C.F.R. §§ 488.438(f)(1)-(4); 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  The record supports CMS’s assertions.  Petitioner’s noncompliance was extremely serious.  Resident 1 was harmed by Petitioner’s neglect.  During his December 2019-January 2020 stay, the resident’s condition deteriorated dramatically, resulting in a horrific wound to his left leg.  I have discussed in detail how Petitioner’s noncompliance failed to protect the resident against the deterioration of his condition. 

Petitioner’s compliance history also supports the penalty amount.  The noncompliance that is at issue here is only the latest in a string of harmful violations of Medicare participation requirements.  In the three years predating the most recent noncompliance, Petitioner manifested four additional deficiencies that caused actual harm to residents.  CMS Ex. 21 at 7.

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I find that a penalty amount of only one-third of the allowable maximum amount is quite modest in light of the seriousness of Petitioner’s noncompliance and its history. 

I have found that Petitioner failed to comply substantially with five Medicare participation requirements.  However, Petitioner’s noncompliance with just two of these requirements, 42 C.F.R. §§ 483.12 and 483.25, is so egregious that it would, coupled with Petitioner’s poor compliance history, justify the $2,200 daily penalty amount. 

Petitioner argues that the penalty amount is unreasonable, alleging that there is no persuasive evidence to show that its noncompliance caused harm to Resident 1.  I disagree.  In this case the evidence of harm is overwhelming.  In reaching that conclusion, I do not discount the possibility that Resident 1’s wound would have deteriorated even if Petitioner’s staff had done their utmost to protect him.  However, their failure to do so – indeed, their neglect of the resident – eliminated any possibility that the resident’s wound would not deteriorate.  In neglecting the resident’s needs, Petitioner’s staff deprived him of a reasonable chance of recovery.

Petitioner did not challenge the duration of the remedy.  CMS imposed civil money penalties beginning with December 17, 2019, the day after Petitioner’s staff first noticed that the resident’s wound was deteriorating.  That is a reasonable beginning point.  It continued the penalties through February 4, 2020, the date when Petitioner satisfied CMS that it had corrected its noncompliance.  That is reasonable as well.

Finally, I note that Petitioner did not present any evidence showing that its financial condition renders the penalty amount and duration unreasonable.

1. CMS argues that neglect of a resident may be so egregious as to constitute abuse, citing 42 C.F.R. § 483.5.  Although I agree with CMS’s legal analysis, I find it unnecessary to decide whether the neglect in this case actually constitutes abuse.  It is sufficient to conclude that Petitioner failed to provide Resident 1 with the services that he needed in order to avoid physical harm, mental anguish, or emotional distress.
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