Cucumber Holdings, LLC dba Stoney Point Healthcare Center, DAB CR6000 (2021)

DECISION

Here we consider a long-term-care facility’s obligation to trim and maintain the nails of a severely impaired resident whose practice of scratching himself exacerbated his cellulitis.

Petitioner, Cucumber Holdings, LLC, dba Stoney Point Healthcare Center, is a long-term-care facility, located in Chatsworth, California, that participates in the Medicare program.  Following a complaint investigation, completed April 8, 2019, the Centers for Medicare and Medicaid Services (CMS) determined that the facility was not in substantial compliance with the Medicare program requirement governing quality of life (42 C.F.R. § 483.24(a)(2)).  CMS imposed a per-instance civil money penalty (CMP) of $10,205.

Petitioner appealed.

For the reasons set forth below, I find that the facility was not in substantial compliance with 42 C.F.R. § 483.24(a)(2) and that the penalty imposed is reasonable.

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Background

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

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

In this case, responding to a complaint, a surveyor from the California Department of Public Health (state agency) visited the facility and, on April 5, 2019, completed an investigation and partially extended survey.  CMS Exs. 1, 2, 3, 6.  Based on his findings, CMS determined that the facility was not in substantial compliance with: 

• 42 C.F.R. § 483.24(a)(2) (Tag F677) (quality of life: providing necessary care and services to dependent residents), cited at scope and severity level G (isolated instance of substantial noncompliance that causes actual harm that is not immediate jeopardy).

CMS Ex. 3.  The surveyor revisited the facility on May 6, 2019.  Based on his findings, CMS determined that the facility returned to substantial compliance effective that day.  CMS Ex. 3 at 6.

CMS imposed against the facility a $10,205 per-instance CMP.  CMS Ex. 3 at 2.1

Petitioner timely requested review.

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On September 20, 2021, I convened a telephone hearing from Washington, D.C.  Ms. Femi Johnson appeared from Pinole, California, on behalf of CMS.  Ms. Rita Marseille, from the Wilson Getty law firm, represented Petitioner Cucumber Holdings and appeared from Aptos, California.  Transcript (Tr.) 5, 6.  The sole witness (Mr. George Sunga) testified from Panorama City, California.  Tr. 7.

The parties filed pre-hearing briefs (CMS Br.; P. Br.) and post-hearing briefs (CMS Post-hrg. Br.; P. Post-hrg. Br.).  I admitted into evidence CMS Exhibits (Exs.) 1-13 and P. Ex. A.  Order Summarizing Prehearing Conference at 2 (May 20, 2019); Tr. 6. 

Issue

Except to challenge the findings of substantial noncompliance, Petitioner has not argued that the penalty imposed is unreasonable.  Therefore, the sole issue before me is:  was the facility in substantial compliance with the quality-of-life regulation, 42 C.F.R. § 483.24(a)(2).  Order Summarizing Prehearing Conference at 2; Tr. 6. 

Discussion

1. The facility was not in substantial compliance with 42 C.F.R. § 483.24(a)(2) because, contrary to the regulation and the facility’s own policies, its staff did not ensure that a severely impaired resident – whose scratching seriously injured his skin – received necessary services.2

Program requirements:  42 C.F.R. § 483.24(a) (2) (Tag F677).  The statute mandates that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  Act § 1819(b)(2).  Section 483.24 recognizes that quality of life “is a fundamental principle that applies to all care and services provided to facility residents.”  The regulation mandates, among other requirements, that the facility “ensure” that a resident who is unable to carry out activities of daily living “receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene[.]”  

“Activities of daily living” include hygiene – bathing, dressing, grooming, and oral care.  42 C.F.R. § 483.24(b)(1).  Grooming includes nail care.  Staff’s failing to trim adequately the fingernails of a resident with a history of scratching supports a deficiency finding under the regulation that states that “[a] resident who is unable to carry out activities of

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daily living receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene.”  Harmony Court, DAB No. 1968 n.12 (2005).3

Facility policy – care of fingernails/toenails.  The facility had in place a written policy governing nail care.  CMS Ex. 8 at 1-2.  The policy describes a procedure for cleaning a resident’s nail bed, keeping nails trimmed, and preventing infection.  It directs staff to review the resident’s care plan to determine any special needs.  The policy’s guidelines indicate that nail care includes daily cleaning and regular trimming, explaining that “[t]rimmed and smooth nails prevent the resident from accidentally scratching and injuring his or her skin.”  CMS Ex. 8 at 1.

The policy requires staff to document that nail care has been provided and lists the information that should be recorded in the resident’s medical record:  1) the date and time that nail care was given; 2) the name and title of the individual(s) who administered the care; 3) the condition of the resident’s nails and nail bed; 4) any difficulties in cutting the resident’s nails; 5) the resident’s complaints, if any; 6) if the resident refused treatment, the reasons why and the interventions taken; 7) the signature and title of the person recording the data.  CMS Ex. 8 at 2.

The facility’s shower policy expressly prohibits staff from trimming a resident’s nails unless instructed to do so by the employee’s supervisor.  P. Ex. A at 56.

Facility policy – care plans.  Consistent with federal regulations (42 C.F.R. § 483.21), the facility policy governing care plans requires the facility to develop and implement for each resident a “comprehensive, person-centered care plan that includes measurable objectives and timetables to meet the resident’s physical, psychosocial, and functional needs.”  CMS Ex. 8 at 3.  An interdisciplinary team (attending physician, registered nurse, nurse aide, dietary staff member, resident or representative, and other appropriate staff or professionals) develops and implements the plan.  The plan interventions are “derived from a thorough analysis of the information gathered as part of [the resident’s] comprehensive assessment.”  Among other requirements the care plan must describe the services to be furnished and must describe services that would otherwise be provided but are not because the resident has exercised his right to refuse treatment.  Id.

Staff must notify the supervisor if the resident refuses care.  CMS Ex. 8 at 4.

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Care plan interventions should be chosen only after the interdisciplinary team has carefully gathered data, properly sequenced events, and considered the relationships among the resident’s problem areas, their causes, and relevant clinical decision making.  When possible, the intervention should address the “underlying source(s) of the problem area(s),” as well as the symptoms and triggers.  The policy notes that care planning individual symptoms in isolation may have little, if any, benefit for the resident.  CMS Ex. 8 at 5 (emphasis added). 

According to the policy, resident assessments are ongoing, and care plans are revised as information about the resident and his condition changes.  The interdisciplinary team must review and update the care plan when there has been a significant change in the resident’s condition or when a desired outcome is not met, and under additional circumstances.  Id. 

Facility policy – supporting activities of daily living.  According to the facility policy, residents who are unable to carry out, independently, activities of daily living will receive services necessary to maintain good nutrition, grooming, personal, and oral hygiene.  They will be provided care, treatment, and services to ensure that their activities of daily living do not diminish unless unavoidable.  These services include hygiene (bathing, dressing, grooming, and oral care).  CMS Ex. 8 at 6; P. Ex. A at 9.

If a resident with cognitive impairments or dementia resists care, staff must attempt to identify the underlying causes of the problem.  It might be appropriate to approach the resident in a different way or at a different time or have another staff member speak with the resident.  Id.

Interventions to improve a resident’s functional abilities will be “in accordance with the resident’s assessed needs, preferences, stated goals, and recognized standards of practice.”  The resident’s response to interventions will be monitored, evaluated, and revised, as appropriate.  CMS Ex. 8 at 7.

Resident 1 (R1).  At the time of the survey, R1 was a 77-year old man, initially admitted to the facility on November 1, 2018, and readmitted on February 20, 2019, following a hospital stay.  CMS Ex. 7 at 1.  He had a history of a cerebral infarction (stroke) and was diagnosed with encephalopathy (disease of the brain that alters its function).  His gait and mobility were abnormal.  He lacked coordination.  He had hypertensive heart disease with heart failure.  He had a major depressive disorder, unspecified psychosis, schizoaffective disorder, and an anxiety disorder.  He experienced restlessness, agitation, hypomania, and paranoid delusions.  CMS Ex. 12 at 1.

On February 27, 2019, R1 scored 8 on a BIMS (Brief Interview for Mental Status) assessment, which is considered moderately impaired.  CMS Ex. 7 at 39; CMS Ex. 13 at 3 (Sunga Decl. ¶ 8).  He required extensive assistance from staff for personal hygiene.

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CMS Ex. 7 at 40.  His physician reported that he did not have the capacity to understand and make decisions.  CMS Ex. 7 at 42. 

The infection.  According to a January 27, 2019 assessment, R1’s skin was intact.  CMS Ex. 7 at 3, 5.  Shortly thereafter, however, he developed cellulitis (a bacterial skin infection) on his upper right arm.  CMS Ex. 7 at 1.  On February 6, 2019, staff noticed that he was scratching his right hand; he complained of discomfort in the affected area.  CMS Ex. 7 at 8, 16; P. Ex. A at 14.  An assessment, dated February 6, 2019, describes multiple skin lesions – reddish, blister-like excoriations – on his right arm.  CMS Ex. 7 at 7.  The assessment notes that the resident had episodes of refusing or resisting activities of daily living, including showers.  Staff “educated” the resident on the importance of skin care and clean clothing.  Id. 

Staff also notified the resident’s physician, who prescribed the topical medication, clotrimazole.  CMS Ex. 7 at 8, 10, 16; P. Ex. A at 15, 19.  They advised the resident to refrain from scratching in order to prevent further skin breakdown.  CMS Ex. 7 at 9; P. Ex. A at 16.  Given his mental capacity and impairments, that advice was not likely to be effective.  See CMS Ex. 7 at 23 (describing R1 as “very delusional”); Fal-Meridian, Inc. v. U.S. Dep’t. of Health & Human Servs., 604 F.3d 445, 451 (7th Cir. 2010) (holding that “‘verbal cues’ addressed to a madwoman . . . were ineffective and known by staff to be so.”).  No evidence suggests that staff took any additional steps to stop the resident from scratching.  His infection did not improve. 

In fact, February 8 progress notes describe the resident’s worsening condition, with yellowish drainage that measured 4 cm x 4 cm (1.57 square inches) with 100% slough (dead tissue).  CMS Ex. 7 at 18; P. Ex. A at 18.  Treatment notes, dated February 9, also describe yellowish drainage, and note that the arm is swelling and warm to the touch.  CMS Ex. 7 at 9, 18.  Staff notified his physician, who did not change the orders.  CMS Ex. 7 at 18.

Progress notes dated February 11, 2019, describe a “worsening” lesion, which had become an open wound, measuring 15 cm x 10 cm (almost 6 inches by 4 inches) with 90% slough.  CMS Ex. 7 at 19.  R1’s physician assessed the wound and ordered him transferred to the hospital for evaluation and treatment.  CMS Ex. 7 at 19. 

A February 12, 2019 report of a psychiatric consultation indicates that R1 was admitted to the hospital with acute medical problems:  cellulitis, sepsis, and anemia.4   He was

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referred for a psychiatric consultation because of his confusion, agitation, and psychosis.  He was “not making any coherent sense” and refused his medication.  The psychiatrist described him as “very delusional.”  CMS Ex. 7 at 23. 

A wound care surgeon debrided the infected area to remove abnormal granulation tissue.  CMS Ex. 11.  In the surgical report, dated February 26, 2019, the surgeon notes that the wound has been “exacerbated due to the patient scratching and picking at the wound site.”  CMS Ex. 11 at 1 (emphasis added).  The physician described “a rectangular shaped ulcer with which consists of slough and granulation tissue, minimal serious exudate, moderate erythema (reddening of the skin), moderate associated tenderness.”  CMS Ex. 11 at 2.  The physician debrided the area to remove the abnormal granulation tissue.  CMS Ex. 11 at 3.  The debrided wound was 16.8 cm long, 11.2 cm wide, and 0.4 cm deep.  CMS Ex. 11 at 2. 

R1 returned to the facility on February 20.  CMS Ex. 7 at 22, 43; P. Ex. A at 29.  In an order dated February 20, R1’s physician ordered the antibiotic, Keflex.  CMS Ex. 7 at 11.

The surveyor observations.  In his survey notes and testimony, Surveyor George Sunga describes his March 26, 2019 observations.  At 10:52 a.m., he found R1 in bed, awake.  The wound on his right arm was wrapped with a gauze bandage.  The resident’s fingernails were “long . . . on both hands.”  CMS Ex. 6 at 2; CMS Ex. 13 at 3-4 (Sunga Decl. ¶ 9).  In his testimony, Surveyor Sunga estimated that the fingernails were about 3 mm long, measuring from the tip of the finger.  CMS Ex. 13 at 3 (Sunga Decl. ¶ 9); Tr. 15-16.

Surveyor Sunga spoke to both the resident and to the facility’s Director of Nursing (DON), Joanne Devera.  CMS Ex. 10.  R1 told him that his nails were long and needed to be cut.  CMS Ex. 6 at 2-3; CMS Ex. 13 at 3-4 (Sunga Decl. ¶ 9).  DON Devera confirmed that R1 developed the infection because of his scratching.  She conceded that the nails were long and told Surveyor Sunga that it would take several weeks to grow them to that length.  CMS Ex. 6 at 3.

DON Devera did not testify.  In fact, Petitioner presented no witnesses to describe the length of R1’s fingernails or to contradict Surveyor Sunga’s observations.  Instead, Petitioner submits a short paragraph, signed by DON Devera and submitted during the facility’s unsuccessful Informal Dispute Resolution process.  The paragraph is dated April 5, 2019.  In it, the DON admits that she agreed the nails were long, but claims that she also said “if the definition of long fingernails were above the nailbeds, then it’s long.”  P. Ex. A at 28.

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I don’t find this statement particularly credible, and, certainly, I find it less credible than either the surveyor’s sworn testimony or his contemporaneous notes.  See The Bridge at Rockwood, DAB No. 2954 at 21 (2019) (finding it reasonable to conclude that contemporaneous accounts are more reliable than later-written accounts); Cedar Lake Nursing Home, DAB No. 2390 at 9 (2011); Woodland Oaks Healthcare Facility, DAB No. 2355 at 8 (2010). 

Moreover, the DON’s statement doesn’t make a lot of sense, unless she was being sarcastic, which seems unlikely (and unprofessional), considering the circumstances.  No one would consider a nail long if it is above the nailbed but below the tip of the finger.  Indeed, a nail trimmed below the nailbed would create its own problems, such as bleeding or infection. 

I find that Surveyor Sunga’s testimony was credible.  He was a careful witness.  He did not embellish his description of R1’s nails.  Rather, he described exactly what he looked at (the top of the hand) and limited his claims to those that he had documented.  See Tr. 18-20 (explaining that he would have noted that the nails were jagged or dirty if they had been so). 

Petitioner nevertheless makes much of the fact that the surveyor notes describe the nails as “long,” and the surveyor testified that they extended 3 mm beyond the tips of the fingers.  Petitioner suggests that this creates a discrepancy that makes his testimony less reliable.  I disagree.  While his testimony may be more specific than the notes, both notes and testimony consistently describe the nails as unacceptably long.  The precise measurement is less important than the fact that the nails extended beyond the resident’s fingertips and were unquestionably long enough to allow him to scratch himself in a way that caused significant damage to his skin.  Petitioner submits no documentary evidence or witness testimony that suggests otherwise.

The facility’s substantial noncompliance.  Even if I were to disregard the surveyor observations (which I do not), I would find the facility out of substantial compliance because it failed to follow its own policies for ensuring that R1 received necessary services to maintain good nail care.5

The Departmental Appeals Board has held repeatedly that a facility’s policies “may reflect [its] own judgment about how best to achieve compliance” with participation

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requirements; thus, failing to comply with its own policies supports the finding that the facility was not in substantial compliance.  Heritage House of Marshall Health and Rehab., DAB No. 3035 at 11 (2021), quoting Bivins Mem’l Nursing Home, DAB No. 2771 at 9 (2017); Life Care Ctr. of Bardstown, DAB No. 2233 at 21-22 (2009); see Green Oaks Health & Rehab. Ctr., DAB No. 2567 at 5 (2014) (holding that the methods a facility chooses to protect its residents are reflected in its policies, assessments, and care plans).  In the absence of contemporaneous documentation justifying their failure to follow facility policy, it is “certainly reasonable” to infer that staff were not aware of it, or that they simply disregarded it.  Oxford Manor, DAB No. 2167 at 5-6 (2008).

As noted above, facility policy required staff to trim resident nails regularly and to record, in the resident’s medical record:  the date and time the care was given, the name and title of the person who administered the care, and other information, including why the resident refused the nail care, if he did.  CMS Ex. 8 at 2.  This record includes no such documentation. 

Without further explanation, Petitioner points to charts titled “Point of Care ADL Category Report,” which it characterizes as “documentation of all of the ADL care provided to [R1, including] showers and nail hygiene and trimming.”  P. Post-hrg. Br. at 5; P. Ex. A at 60-78.  The charts indicate levels of supervision provided for various activities of daily living, including, generally, “personal hygiene.”  They say nothing about nail care specifically and provide none of the details required by the facility’s nailcare policy.

Pointing to the resident’s care plan (P. Ex. A at 39-44), Petitioner, nevertheless, claims that R1 “was appropriately assessed and provided appropriate clinical interventions.”  P. Reply at 2, citing P. Ex. A at 39-44.  On February 6, 2019, the facility amended R1’s care plan to add as a problem his multiple skin lesions and called for daily skin monitoring, keeping the area dry, reporting signs of drainage and bleeding.  CMS Ex. 7 at 12; P. Ex. A at 39.  On February 21, staff amended the plan to add wound care – administering antibiotics and cleaning and dressing the wound.  CMS Ex. 7 at 37.  CMS does not claim that any of this treatment was inappropriate.  However, the facility limited its response to treating the infection without addressing the underlying behavior that caused or exacerbated the infection.  See CMS Ex. 8 at 6; P. Ex. A at 9 (policy directing staff to address the underlying causes of the problem).

From as early as February 6, 2019, the facility recognized that R1’s scratching exacerbated – and may even have caused – his cellulitis.  Yet, Petitioner has not established that it implemented procedures to protect the resident from harm.  Contrary to facility policy, the resident’s care plan was not updated to address nail care and trimming or to add any other approach that would prevent the harmful scratching.  CMS Ex. 6 at 3;

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CMS Ex. 7 at 12-13, 37-38; CMS Ex. 13 at 4-5 (Sunga Decl. ¶ 13); see CMS Ex. 8 at 3.  This puts the facility out of substantial compliance.

Conclusion

Because the facility did not ensure that a severely impaired resident – whose scratching seriously injured his skin – received the services necessary for him to attain or maintain the highest practicable physical, mental, and psychosocial well-being, it was not in substantial compliance with section 483.24(a)(2).  Petitioner has not argued that the relatively modest penalty imposed is unreasonable.

1. Penalty amounts have been inflation-adjusted and change (roughly) annually.  45 C.F.R. § 102.3.  The amount is determined on the date the penalty is assessed, in this case May 9, 2019.  CMS Ex. 3.  At that time, the per-instance penalty range was:  $2,140 to $21,393.  83 Fed. Reg. 51,369 (Oct. 11, 2018).  For a chart of the changing penalties, see 84 Fed. Reg. 59,549 (Nov. 5, 2019).
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2. I make this one finding of fact/conclusion of law.
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3. The regulations governing long-term care facilities have been revised since this case was decided; the requirement that residents receive necessary services to maintain grooming has been moved from 42 C.F.R. § 483.25(a)(3) to § 483.24(a)(2).  81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (July 13, 2017).  However, the substance of requirements has not changed, so decisions that pre-date the regulatory changes remain valid.
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4. Petitioner questions the accuracy of the sepsis diagnosis, for which there is scant evidence.  I agree that R1’s condition likely did not deteriorate that far.  Nevertheless, his condition deteriorated significantly, exacerbated by his scratching the infected area. Contrary to its own policies, the facility did not maintain proper nail grooming and did not care plan to prevent the resident’s damaging behavior.  These failures put the facility out of substantial compliance, even though the resident’s condition did not deteriorate as much as it might have.
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5. In Harmony Court, the Board recognized the overlapping relationship between the quality-of-care regulation (42 C.F.R. § 483.25) and the regulation that requires the facility to provide grooming services (currently, 42 C.F.R. § 483.24(a)(2)).  DAB No. 1968 n.12.  Indeed, those regulations share a common preamble.  Here, although CMS did not do so, it could have determined that the facility was not in substantial compliance with section 483.25, as well as section 483.24.
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