Hyde Park Healthcare Center, DAB CR6087 (2022)

DECISION

Hyde Park Healthcare Center (Petitioner or “the facility”) challenges the determination by the Centers for Medicare & Medicaid Services (CMS) that it was not in substantial compliance with the Medicare program participation requirements regarding transfers and discharges (42 C.F.R. § 483.15(c)), along with the finding of immediate jeopardy and the imposition of remedies including per-day civil monetary penalties (CMPs) and a denial of payment for new admissions (DPNA).

For the following reasons, I uphold CMS’s determinations that Petitioner was not in substantial compliance with 42 C.F.R. § 483.15(c)(1)(B) and (2) from August 7 until October 10, 2019, to include a period of immediate jeopardy to resident health and safety that began on August 7 and was abated on August 9, 2019.  I also uphold CMS’s imposition of a discretionary DPNA from September 27 until October 10, 2019.  Because the determination of substantial noncompliance, to include the immediate jeopardy determination, was based, in part, on noncompliance with 42 C.F.R. § 483.15(c)(2)(iii), which is inapplicable to the present circumstances, a reduction of the per-day CMP for immediate jeopardy noncompliance to $6,525 is appropriate.  Further, because CMS imposed a per-day CMP on days for which there is no finding of noncompliance, I modify the remedies to reflect that a per-day CMP of $6,525 is imposed for immediate jeopardy noncompliance from August 7 through August 8, 2019, and a per-day CMP of

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$110 is imposed for substantial noncompliance from August 9 through and inclusive of October 9, 2019.

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, SNFs must maintain substantial compliance with program participation requirements.  In order to be in substantial compliance, any 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.

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 a facility 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).1  Pursuant to 42 C.F.R. § 488.417(a), CMS may also impose a discretionary DPNA.

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 California Department of Public Health (state agency) completed a complaint investigation survey at Petitioner’s facility on July 16, 2019, and cited

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immediate jeopardy noncompliance2 with the Medicare program participation requirement found at 42 C.F.R. § 483.15(c)(1), (2) (cited as Tag F622 (Transfer and Discharge Requirements)) at the “K” level scope and severity.3  CMS Ex. 1; see CMS Ex. 3 at 1.  The statement of deficiencies reported that the state agency identified immediate jeopardy on August 7, 2019, and that Petitioner abated immediate jeopardy on August 9, 2019.  CMS Ex. 1 at 7; see CMS Ex. 13 (stage agency immediate jeopardy worksheet).

In a letter dated September 12, 2019, CMS explained that “the survey findings documented that immediate jeopardy to resident’s health and safety was identified on August 7, 2019,” and that “immediate jeopardy was abated August 9, 2019.”  CMS Ex. 3 at 1.  CMS stated, “[h]aving reviewed the September 10, 2019 survey findings and the State Survey Agency recommendations, this office has concluded that we concur with the findings documented during the survey completed on September 10, 2019 (and listed on the above-reverenced Form CMS-2567 for that survey).”  CMS Ex. 3 at 1.  CMS determined Petitioner continued to remain out of substantial compliance after it abated immediate jeopardy.  CMS Ex. 3 at 1-2.  CMS imposed a per-day CMP of $8,830 beginning on July 13, 2019, which it explained was the “entry date of the date of the survey,” and continuing through August 9, 2019, when Petitioner abated immediate jeopardy.  CMS Ex. 3 at 2.  CMS also imposed a per-day CMP of $110 beginning on August 9, 2019, along with a DPNA that would take effect on September 27, 2019, if Petitioner remained out of compliance.  CMS Ex. 3 at 2.

On October 16, 2019, CMS issued a notice that again explained that “survey findings documented that immediate jeopardy to resident’s health and safety was identified on August 7, 2019,” and that “immediate jeopardy was abated on August 9, 2019.”  CMS Ex. 4 at 1.  CMS also explained that it had previously informed Petitioner that a per-day CMP of $110 and a DPNA, which would take effect on September 27, 2019, would continue until Petitioner “had come into substantial compliance with the applicable Federal health and safety requirements.”  CMS Ex. 4 at 1.  CMS reported that a follow-up survey at the facility on October 10, 2019, determined that Petitioner had returned to

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substantial compliance, effective that same day.  CMS Ex. 4 at 2.  CMS stated that the per-day CMP and DPNA stopped accruing after October 9, 2019.  CMS Ex. 4 at 2.

Petitioner timely requested a hearing on November 8, 2019.  CMS filed a pre-hearing brief, along with 19 proposed exhibits (CMS Exs. 1-19), and Petitioner filed a brief and six proposed exhibits (P. Exs. 1‑6).

CMS submitted the written direct testimony of a state agency surveyor (CMS Ex. 19), along with her resume (CMS Ex. 18), and Petitioner submitted the written direct testimony of its Director of Nursing (P. Ex. 5).  Each party requested an opportunity to cross-examine the opposing party’s witness.  In a September 25, 2020 order, I directed the parties to jointly select a date for a one-day video teleconference hearing in November 2020.  In a joint response, Petitioner requested that the hearing “be continued to a date in early 2021.”  I then scheduled the hearing for February 4, 2021, and the parties expressed consent to this hearing date when they participated in the October 8, 2020 pre-hearing conference.

In an October 9, 2020 order summarizing an October 8, 2020 pre-hearing conference, I overruled Petitioner’s objections to CMS Exs. 15 and 19 and admitted all proposed exhibits into the evidentiary record, with CMS Exs. 18 and 19 and P. Ex. 5 being provisionally admitted pending each party making its respective witness available for cross-examination.

On January 22, 2021, Petitioner, citing the COVID-19 pandemic, filed an opposed motion requesting an indefinite continuation of the hearing date, or alternatively, a 90‑120 day stay of proceedings.  Petitioner argued, in part, that its “counsel’s access to its client and witness and the ability to prepare for formal hearing is limited until the pandemic is over,” and “the pandemic is requiring the full-time attention and resources of health care workers.”

In an order dated January 25, 2021, I denied Petitioner’s request to continue the hearing or stay proceedings.  I explained that Petitioner had not demonstrated that the COVID-19 pandemic had prevented it from being able to prepare for the hearing.  I discussed that Petitioner filed its pre-hearing exchange, to include supporting evidence and proposed witness testimony, in March 2020, when the impact of COVID-19 was quite significant, and did not require additional time to file its pre-hearing exchange.  I noted that Petitioner had not demonstrated why additional time would be necessary to prepare for a hearing, particularly when Petitioner’s sole witness had provided only a half of a page of substantive testimony.  I also pointed out that Petitioner had levied serious accusations against the state agency surveyor, to include that the surveyor lied and engaged in

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misconduct, and that I presumed that Petitioner would have conducted the necessary preparation to impeach this witness prior to making these allegations.4

More than a week later, and only two days before the scheduled hearing, Petitioner filed an unopposed motion for a decision on the written record, at which time it withdrew its request for cross-examination of the surveyor and withdrew its witness’s testimony (P. Ex. 5).  Petitioner stated that “cross-examination of a surveyor is unnecessary for the purposes of challenging state agency surveyor’s legal conclusions stated in written testimony,” and “an oral hearing is not in the overall interests of judicial economy.”  Because Petitioner withdrew its witness’s testimony and its request to cross-examine the state agency surveyor, I admit all proposed exhibits, excluding P. Ex. 5, into the evidentiary record.

On February 3, 2021, I granted Petitioner’s motion and allowed the parties an opportunity to file supplemental briefs.  Both parties filed supplemental briefs (CMS Supp. Br., P. Supp Br.), and Petitioner filed a reply.  The record is closed and the case is ready for a decision.

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II.   Issues

The issues presented are:

Whether Petitioner failed to substantially comply with 42 C.F.R. § 483.15(c)(1), (2);

If noncompliance is established, whether the determination of immediate jeopardy is clearly erroneous;

Whether immediate jeopardy existed from July 13 until August 9, 2019;

Whether Petitioner remained out of compliance with participation requirements beginning on August 9, 2019, and continuing until October 10, 2019;

Whether CMS had a basis to deny payment for new admissions from September 27 until October 10, 2019;

Whether the $8,830 per day CMP for immediate jeopardy noncompliance and the $110 per day CMP for non-immediate jeopardy noncompliance are reasonable enforcement remedies.

Discussion5

1.   Petitioner discharged at least four residents to the “House of Heavenly Angels” between April 1 and June 24, 2019.

2.   The House of Heavenly Angels is a private home that accepts boarders, meaning that it rents out rooms and provides brunch and dinner meals.

3.   The House of Heavenly Angels does not administer medications or provide nursing services.

4.   On or about June 20, 2019, Petitioner assessed that Resident # 1 was not steady and was only able to stabilize with staff assistance when walking and turning around.

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5.   At the time Petitioner discharged Resident # 1 on June 24, 2019, it documented that his health had improved sufficiently such that he no longer needed the services provided by the facility.

6.   Resident # 1’s physician did not document that his health had improved such that he no longer required the services provided by the facility.  To the contrary, the physician later reported that he did not give discharge orders for Resident # 1 and that Resident # 1 was not stable for discharge and required assistance with all activities of daily living (ADLs), to include requiring assistance with medication administration.

7.   Resident # 1, a tuberculosis patient, received discharge instructions that reported he had been prescribed Rifampin, along with a four-day supply of Rifampin, even though Rifampin had been discontinued in March 2019 due to a potential interaction with an anti-psychotic medication. 

8.   The county public health department had been assisting with the management of Resident # 1’s tuberculosis infection, to include sending a public health nurse to visit him at the facility.  Petitioner neither notified the public health department of Resident # 1’s discharge nor provided instructions for Resident # 1 to follow up with the public health department following his discharge.

9.   After the public health nurse and Resident # 1’s physician learned of his discharge from the facility, Petitioner sent staff to retrieve him from the private boarding home and re-admitted him to the facility on July 12, 2019.

10.   Petitioner documented that Resident # 1 did not take his medications during the 18 days between his June 24, 2019 discharge and July 12, 2019 re-admission to the facility.

11.   Resident # 2 was discharged from physical therapy and occupational therapy on March 27, 2019, and assessments completed that day revealed that she required “24 hour care,” had “severe dependence” with ADLs, and had only fair sitting and standing balance associated with reducing the risk of falls and safely participating in activities of interest.

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12.   Resident # 2’s discharge summary and guide for aftercare did not report a reason for discharge/transfer and reported that she required assistance with walking, bathing, and toileting.

13.   The record does not contain any evidence that Resident # 2 was discharged because her health had improved such that she no longer required the services of the facility.

14.   Resident # 2’s physician did not document that her health had improved such that she no longer required the services of the facility.

15.   Even though ADL logs reported through April 13, 2019, that staff had been providing Resident # 3 a one-person physical assist with toileting, bed mobility, transfers, walking in the room, and walking on the corridor, a discharge summary and guide for aftercare dated April 10, 2019, reported that Resident # 3 performed all ADLs independently.

16.   Resident # 3’s discharge summary lacks a reason for discharge/transfer, and a physician telephone order reports that Resident # 3 was discharged to a lower level of care.

17.   Resident # 3’s physician did not document she had been discharged because her health had improved such that she no longer required the services of the facility.

18.   An April 27, 2019 MDS assessment reports that Resident # 4 required as much as a one-person physical assist with all ADLs.

19.   Resident # 4 required hemodialysis three days per week.

20.   Petitioner listed “health improved” on a discharge summary and guide for aftercare for Resident # 4, but Resident # 4’s physician did not document that his health had improved such that he no longer required the services of the facility.

21.   Resident # 4’s May 3, 2019 discharge summary and guide for aftercare lacked any guidance or arrangements for continuation of his hemodialysis appointments.

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Resident # 1

Resident # 1, a man born in 1946, was initially admitted to the facility on March 14, 2019.  CMS Ex. 6 at 1.  Resident # 1 had been transferred to the facility from an acute care hospital (CMS Ex. 6 at 2), and had resided in an assisted living facility prior to his hospitalization.6   CMS Ex. 6 at 5.  Resident # 1’s primary admission diagnosis was tuberculosis.  CMS Ex. 6.  Additional current diagnoses included muscle weakness (generalized), other abnormalities of gait and mobility, other lack of coordination, chronic obstructive pulmonary disease, osteoarthritis of knee, polyneuropathy, unspecified psychosis, bipolar disorder, and unspecified protein-calorie malnutrition.  CMS Ex. 6 at 2 (admission face sheet); see CMS Ex. 6 at 3 (March 16, 2019 history and physical).

Resident # 1’s treatment for tuberculosis pre-dated his March 14, 2019 admission to the facility, and on or about March 13, 2019, the public health department recommended treatment with Rifabutin in place of Rifampin because of a potential interaction with an anti-psychotic medication.  CMS Ex. 6 at 7, 28; see CMS Ex. 6 at 17 (March 21, 2019 attending physician order discontinuing Rifampin).

An ADLs care plan implemented on March 21, 2019, reported that Resident # 1 required assistance with all ADLs, to include bed mobility, transfers, ambulation, locomotion, dressing, eating, toileting, personal hygiene, and bathing.  CMS Ex. 6 at 40.  The care plan reported that Resident # 1 was “at risk for fluctuating [secondary to diagnosis] of [tuberculosis] of lungs, muscle weakness, dysphagia, abnormalities of gait and mobility, lack of coordination, COPD, osteoarthritis, psychosis, [and] bipolar [disorder].”  CMS Ex. 6 at 40.  The care plan included numerous approaches, to include assisting with ADLs and administering medication as ordered.  CMS Ex. 6 at 40.

Petitioner conducted a minimum data set (MDS) assessment of Resident # 1 on June 20, 2019.  CMS Ex. 6 at 48-55.  Resident # 1 required as much as a one-person assist with walking in the room, walking in the corridor, locomotion on the unit, and dressing.  CMS Ex. 6 at 50.  Petitioner provided set-up assistance with personal hygiene, toilet use, eating, transfers, and bed mobility during the assessment period.  CMS Ex. 6 at 49-50.  Staff provided as much as “physical help in part of bathing activity” during the lookback period.  CMS Ex. 6 at 50.  Based on an observation of Resident # 1’s functional status for balance during transitions and walking, Petitioner assessed that Resident # 1 was not steady and was only able to stabilize with staff assistance when he walked and turned around.  CMS Ex. 6 at 51.

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Two days later, on June 22, 2019, a “License Nurse Weekly Summary” reported that Resident # 1 required supervision with the ADLs of eating, bathing, dressing, locomotion, hygiene, and transfers.  CMS Ex. 6 at 66.

The following day, on June 23, 2019, a “Daily Medicare License Nurse Record” reported that Resident # 1 required supervision with bed mobility, sit to stand transfer, gait/ambulation, dressing, eating, toilet use, and bathing.  CMS Ex. 6 at 68.  Resident # 1 was alert and oriented x 2.7   CMS Ex. 6 at 68.  The nurse who completed the assessment reported “no change in condition noted” in the past week.  CMS Ex. 6 at 69.

A June 24, 2019 telephone order documents that Resident # 1’s attending physician ordered that he be “discharge[d] to House of Heavenly Angels” with follow-up with a home health agency at an unspecified frequency of visitation or scope of services.  CMS Ex. 6 at 24.

A June 24, 2019 progress note reports “[o]rders received to discharge resident to House of Heavenly Angels . . . and to [follow up] with Faith and Hope Home Health. . . . ”  CMS Ex. 6 at 34.  Less than two hours later, the owner of the House of Heavenly Angels picked Resident # 1 up from the facility.  CMS Ex. 6 at 34.  Social Work progress notes report that following a June 18, 2019 assessment for “for possible placement” by “Winifred,” Resident # 1 was “discharged to House of Heavenly Angels” on June 24, 2019.  CMS Ex. 6 at 35.

A June 24, 2019 “Recapitulation of Care Discharge Summary/Guide for Aftercare” reported, for the first time since Resident # 1’s admission, that he independently performed the ADLs of bathing, dressing, feeding, oral care, shaving, and toileting, and independently ambulated stairs and transferred between a bed and a chair.  CMS Ex. 6 at 43.  Resident # 1 only required assistance with walking.  CMS Ex. 6 at 43.  The discharge summary reported that Resident # 1 had been given a supply of current medications, along with dosage instructions.  CMS Ex. 6 at 44.  Even though Rifampin had been discontinued more than three months earlier due to a potential adverse medication interaction, Petitioner discharged Resident # 1 with a 4-day supply of Rifampin with instructions to take that medication daily.  CMS Ex. 6 at 44.  The instructions directed Resident # 1 to follow-up with a listed home health agency, but did not provide contact information for a physician or the county public health department, to include the assigned public health nurse.  CMS Ex. 6 at 43-44; see CMS Ex. 6 at 33 (progress notes reflecting the involvement of a county public health nurse in Resident

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# 1’s care).  The form reported Resident # 1 had “fair” rehabilitation potential8 and that he was being discharged because his “[h]ealth has improved.”  CMS Ex. 6 at 43.

An undated “Physician Discharge Summary” reported that Resident # 1’s health had “improved sufficiently and [he] no longer needs the services provided by the facility.”  CMS Ex. 6 at 45.  Despite the caption of the form and field for a physician signature, Resident # 1’s physician did not sign the Physician Discharge Summary.  CMS Ex. 6 at 45.

Nineteen days later, on July 12, 2019, facility staff picked Resident # 1 up from the House of Heavenly Angels, and, with his consent, re-admitted him to the facility at approximately 12:25 pm.  CMS Ex. 6 at 70.  That same day, a county public health nurse initiated a complaint with the state survey agency.  CMS Ex. 10 at 1; see CMS Ex. 19 at 9 (testimony that the public health nurse reported that she had visited the facility to monitor Resident # 1 and discovered that he had been discharged, and that the facility “failed to notify her that Resident 1 was discharged even though she was monitoring Resident 1’s tuberculosis infection as part of the Prevention Tuberculosis Control Program”).  A complaint intake note reported the following information:

Resident is 73 [years] old and he was transferred to independent living on 6/24.  Resident had an unsafe transfer and no [primary medical doctor] to follow.  Resident does not have enough meds to complete TB treatment.  Resident is not oriented enough to take meds alone.

CMS Ex. 10 at 1.  The report documented that according to Resident # 1’s physician at the facility, “Resident 1 was re-admitted to the facility on 7/12/19, as soon as [the physician] found out the resident was inappropriately discharged.”  CMS Ex. 10 at 6.

The facility completed a monthly tuberculosis medical update, dated July 25, 2019, in which it documented that Resident # 1 had temporarily stopped taking his tuberculosis medication because he had “been discharged to boarding care” and “was not taking meds.”  CMS Ex. 6 at 57.

Resident # 2

Resident # 2, a woman born in 1990, was admitted to the facility on February 1, 2019.  CMS Ex. 7 at 1.  Prior to her admission to the facility, Resident # 2 had resided in another long-term care facility.  P. Ex. 2 at 9.  Resident # 2’s admitting diagnosis was human immunodeficiency virus (HIV) disease, and other diagnoses included muscle weakness,

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other lack of coordination, major depressive disorder, and schizophrenia.  CMS Ex. 7 at 1-2.

A February 7, 2019 MDS assessment reported that Resident # 2 required as much as a one-person physical assist with bed mobility, transfers, locomotion, dressing, eating, toilet use, and personal hygiene.  CMS Ex. 7 at 13-14.  Based on staff observation during the assessment, Resident # 2 was not steady and only able to stabilize with staff assistance when moving from a seated to standing position, moving on and off the toilet, and transferring.  CMS Ex. 7 at 15.

A March 21, 2019, licensed nurse weekly summary reported that Resident # 2 independently performed the ADLs of eating, dressing, and transfers, and required supervision with bathing, locomotion, and hygiene.  CMS Ex. 7 at 27.

Resident # 2 was discharged from physical therapy on March 27, 2019.  P. Ex. 2 at 4.  Upon discharge, Resident # 2’s static sitting balance (“spontaneously righting self when needed in order to facilitate upright posture, reduce the risk for falls and safely participate in activities of interest”) had improved from a baseline of “Fair – ” to a discharge level of “Fair +.”  P. Ex. 2 at 4.  Further, and upon discharge, Resident # 2’s static standing balance (“spontaneously righting self when needed in order to safely participate in activities of interest and reduce the risk of falls”) had improved from a baseline level of “Poor” to a discharge level of “Fair -.”  P. Ex. 2 at 4.  The physical therapist made a discharge recommendation of “24 hour care.”  P. Ex. 2 at 6.

Resident # 2 was discharged from occupational therapy on March 27, 2019, at which time her occupational therapist reported that her discharge destination was a long-term care setting.  P. Ex. 2 at 9-10.  The occupational therapist assigned a score of 26 out of a scale of 100 on a Modified Barthel Index Activities for Daily Living assessment, which the therapist reported corresponded to “severe dependence.”  P. Ex. 2 at 9.

An April 1, 2019 Recapitulation of Care Discharge Summary/Guide for Aftercare reports that the facility treated Resident # 2 for numerous conditions during her admission, to include a history of abdominal pain, hepatitis B, HIV, low back pain, psychosis, anxiety, muscle wasting and atrophy, pneumonia sepsis, schizophrenia, and left hip injury.  CMS Ex. 7 at 23.  Even though the form includes a field for the facility to list the “Reason for discharge/transfer,” the facility left this field blank.  CMS Ex. 7 at 23.  The discharge form indicated that Resident # 2 used a wheelchair. required assistance with walking, bathing, and toileting, and was unable to climb stairs.  CMS Ex. 7 at 23.

Resident # 2’s physician did not document that her health had improved such that she no longer required the services of the facility.  See CMS Ex. 7.  A telephone order reports that Resident # 2 was discharged “to lower level of care at House of Heavenly Angels.”  P. Ex. 2 at 13.

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Resident # 3

Resident # 3, a woman born in 1963, was admitted to the facility on March 15, 2019, with an admitting diagnosis of type 2 diabetes with other specified complication.  CMS Ex. 8 at 1.  Other current diagnoses included chronic obstructive pulmonary disease, bipolar disorder, and schizophrenia.  CMS Ex. 8 at 1-2.  Prior to her admission, Resident # 3 had been hospitalized from January 7 through March 15, 2019.  CMS Ex. 8 at 1.

A March 15, 2019 ADLs care plan reports that Resident # 3 required only supervision with transfers, ambulation, toileting, and bathing.  CMS Ex. 8 at 15.

A March 22, 2019 MDS assessment noted that Resident # 3 required as much as a one‑person assist with all ADLs.  CMS Ex. 8 at 9-10.  Based on staff observation, Resident # 3 was not steady and was only able to stabilize with staff assistance when moving from a seated to a standing position, walking, turning around, moving on and off the toilet, and transferring between surfaces.  CMS Ex. 8 at 11.

A licensed nurse weekly summary, dated April 3, 2019, reported that Resident # 3 received limited assistance with bathing, dressing, and hygiene and supervision with locomotion and transfers.  CMS Ex. 8 at 19.  Petitioner reported that only one ADL, eating, could be performed independently.  CMS Ex. 8 at 19.

An April 2019 ADL log reports that Petitioner provided Resident # 3 the support of a one-person physical assist with toileting on April 2, 3, 4, 5, 6, 7, 9, and 10.  CMS Ex. 8 at 31.  Petitioner documented that it provided the support of a one-person physical assist with bed mobility on April 2, 3, 4, 5, 6, 7, 9, and 12, and with transfers on April 2, 3, 4, 5, 6, 7, 9, 10, and 12.9   CMS Ex. 8 at 36.  Petitioner also documented that it provided Resident # 3 the support of a one-person physical assist when walking in the room on April 1, 2, 3, 4, 5, 6, 7, 9, 10, and 12 and with walking in the corridor on April 2, 3, 4, 5, 6, 7, 9, 10, 12, and 13.  CMS Ex. 8 at 36.

Contrary to Resident # 3’s repeatedly documented need for assistance with ADLs during the month of April 2019, a Recapitulation of Care Discharge Summary/Guide for Aftercare dated April 10, 2019 reports she performed all ADLs independently.  CMS Ex. 8 at 21.  Petitioner left blank the field for “Reason for discharge/transfer,” and did not report any information in the fields for “Brief Summary of Care” and “After Care Instructions.”  CMS Ex. 8 at 21-22.

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An April 10, 2019 telephone order reports that Resident # 3 was discharged “to a lower level of care today to House of Heavenly Angels.”  P. Ex. 3 at 7.

Resident # 4

Resident # 4, a man born in 1968, was admitted to the facility on January 17, 2019, upon his discharge from a hospital.  CMS Ex. 9 at 1.  Resident # 4 was homeless prior to his hospitalization.  P. Ex. 4 at 1.  Resident # 4’s admitting diagnosis was end stage renal disease.  CMS Ex. 9 at 1.  Other diagnoses at the time of admission included dependence on renal dialysis, sepsis, other abnormalities of gait and mobility, muscle weakness, other lack of coordination, major depressive disorder, and anxiety disorder.  CMS Ex. 9 at 1-2. 

A licensed nurse weekly summary completed on April 26, 2019, reported that Resident # 4 required supervision with all ADLs.  CMS Ex. 9 at 14.

An MDS assessment conducted on April 27, 2019, reported that Petitioner provided  Resident # 4 as much as a one-person physical assist with all ADLs.  CMS Ex. 9 at 5-6.  Further, Resident # 4 required as much as extensive assistance with transfers, dressing, and toilet use during the lookback period.  CMS Ex. 9 at 5-6.  Resident # 4 also required as much as physical help in part of the bathing activity.  CMS Ex. 9 at 6.

A Recapitulation of Care Discharge Summary/Guide for Aftercare completed on May 3, 2019, reported that Resident # 4 was being discharged because his health had improved.  CMS Ex. 9 at 8.  Petitioner did not report information in the “Brief Summary of Care” and “After Care Instructions” sections of the form.  CMS Ex. 9 at 9.  Although Resident # 4 received hemodialysis three days per week (see CMS Ex. 9 at 3; P. Ex. 4 at 3), the form did not provide any discharge instructions regarding future appointments.  CMS Ex. 9 at 8-11.

The House of Heavenly Angels is a private home that accepts boarders.

Petitioner claims the House of Heavenly Angels is a “freestanding independent senior housing facilit[y].”  P. Br.10   Inasmuch as the House of Heavenly Angels is a private home and three of the four residents Petitioner discharged to House of Heavenly Angels are not necessarily considered “seniors,” it is unclear why Petitioner identifies it as a senior housing facility.  CMS Ex. 19 at 4 (surveyor’s testimony that it is a home and not an assisted living facility); CMS Exs. 7 at 1 (reflecting that Resident # 2 was 28 years old at the time of admission to the facility); 8 at 1 (reflecting that Resident # 2 was 55 years old at the time of admission to the facility); 9 at 1 (reflecting that Resident # 4 was 50 years old at the time of admission to the facility).

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Petitioner, in an August 7, 2019 corrective action memo involving its social services designee, acknowledged that its social services designee violated policy and procedure and safety rules when she discharged Resident # 1, Resident # 2, Resident # 3, and Resident # 4 to the House of Heavenly Angels and failed to ensure they had been safely discharged.  CMS Ex. 15 at 5; see CMS Ex. 1 at 2 (Petitioner’s plan of correction reporting that “[d]isciplinary/corrective actions was given to facility’s Social Service Designee effective 8/7/19, by the facility’s Administrator”).  Subsequently, in a termination action dated August 12, 2019, Petitioner reported it “found several patients [discharged] to the same location,” which it had determined was an “unsafe location.”  CMS Ex. 15 at 1.  Curiously, Petitioner cited statements by the terminated social services designee to the surveyor in support of its claims that House of Heavenly Angels provided services such as medication administration.  P. Br. (“Furthermore, as documented in the surveyor’s notes, per the SSD as well as other registered nurses at Hyde Park, the owner of House of Heavenly [sic] regularly accepted residents from Hyde Park, assessed residents prior to transfer, and advised she provided meals, medications, and would take residents to follow-up MD appointments.”).  However, as Petitioner recognized in August 2019, the House of Heavenly Angels did not provide that level of care to its boarders.  See CMS Ex. 15 at 1 (reporting that Resident # 1 did not take his medications); 5 (listing objective to “ensure that res[idents] are safely discharge[d] to lower level through [interdisciplinary team]” and “visits to the place where res[idents] go”); see CMS Ex. 6 at 57 (report to the public health department that Resident # 1 did not take his medications during the 18 days he had been discharged from the facility).

The surveyor testified that the House of Heavenly Angels does not administer medications or assist with ADLs.  CMS Ex. 19 at 4.  The surveyor, based on her interview with the home’s owner, documented that the homeowner rents rooms in a “regular house” and provides brunch and dinner.  CMS Ex. 11 at 8.  When questioned about Resident # 1’s discharge to her home, the owner reported that she expected that he would be independent and not require assistance with medications.  CMS Ex. 11 at 8.

Petitioner’s policies

Petitioner has a “Discharge Summary and Plan” policy that it provide a discharge summary and post-discharge plan “to assist the resident to adjust to his/her new living environment.”  CMS Ex. 14 at 6.  The policy requires that the Care Planning/ Interdisciplinary team develop a post-discharge plan that includes a description of how the resident will access care following discharge.  CMS Ex. 14 at 7.  The policy further requires that the Care Planning/Interdisciplinary Team identify the specific needs of the resident after discharge.  CMS Ex. 14 at 7.  The policy also requires that the post‑discharge plan and summary be provided to the resident and filed in the resident’s medical records.  CMS Ex. 14 at 7.

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Petitioner has a “Discharging the Resident” policy that addresses transfers to home, a hospital, another long-term care facility, and a mortuary.  CMS Ex. 14 at 8-10.  The policy requires the facility “to ensure that [the] resident and/or responsible party receive teaching and discharge instructions.”  CMS Ex. 14 at 8.

Petitioner also has a “Transfer or Discharge Documentation” policy.  CMS Ex. 14 at 11.  The policy states that when a discharge “is appropriate because the resident’s health has improved sufficiently so that the resident no longer needs the services provided by the facility,” “the basis for the transfer or discharge must be documented in the resident’s clinical record by the resident’s Attending Physician.”  CMS Ex. 14 at 11 (emphasis in original).

22.   Petitioner failed to comply with 42 C.F.R. § 483.15(c)(1)(B) and its own policy when it discharged four residents to a private boarding home even though the residents’ health had not improved sufficiently such that they no longer required the services provided by the facility.

23.   Petitioner failed to comply with 42 C.F.R. § 483.15(c)(1)(B) and its own policy when it discharged four residents for whom a physician did not document that discharge was necessary because the residents’ health has improved sufficiently such that they no longer needed the services provided by the facility.

24.   Petitioner has not demonstrated that the finding of immediate jeopardy based on the discharge of four residents to a private boarding home when their health had not improved sufficiently such that they no longer required the services of the facility, and without supporting documentation by the residents’ attending physicians, is clearly erroneous.

25.   Because CMS has determined that the requirement at 42 C.F.R. § 483.15(c)(2) that a facility communicate certain information to a “receiving health care institution or provider” is applicable when “a resident is transferred or discharged to another health care setting,” that participation requirement is inapplicable to the discharges of Resident # 1, Resident # 2, Resident # 3, and Resident # 4 to a private home.

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Petitioner’s noncompliance with 42 C.F.R. § 483.15(c)(1) and (2) resulted in immediate jeopardy to resident health and safety.

Pursuant to 42 C.F.R. § 483.15(c)(1)(B), a facility must permit each resident to remain in the facility and may not transfer or discharge a resident unless “the transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility.”  Thus, a discharge based on improvement of a resident’s health where the resident no longer requires the services of the facility is a facility-initiated discharge that may result in an involuntary discharge.  To ensure there is an appropriate basis for the facility to carry out a facility-initiated discharge, 42 C.F.R. § 483.15(c)(2)(ii)(A) requires that the resident’s medical record “must include” documentation by the resident’s physician that the resident’s health has improved and the services of the facility are no longer needed.

Petitioner discharged Resident # 1 on June 24, 2019.  Records covering the timeframe immediately preceding Resident # 1’s discharge do not portray a resident who did not need the services of the facility.  To the contrary, a June 20, 2019 MDS assessment based on staff observation reported that Resident # 1 was not steady and could only stabilize with staff assistance when he walked and turned around.  CMS Ex. 6 at 51.  The assessment also reported that, during the lookback period over the preceding week, staff had provided as much as a one-person assist with walking, locomotion, and dressing, and set-up assistance with personal hygiene, toilet use, eating, transfers, and bed mobility.  CMS Ex. 5 at 49-50.  Subsequent records documented that Resident # 1 required staff supervision with ADLs.  CMS Ex. 6 at 66, 69.  And one day prior to Resident # 1’s discharge on June 24, 2019, Petitioner assessed that he was not oriented in all spheres.  CMS Ex. 6 at 68.  Petitioner’s discharge summary included a list of five medications that required administration between one and three times daily.  CMS Ex. 6 at 44.

Although Petitioner signed a discharge summary determining that Resident # 1’s “transfer/discharge was necessary due to . . . the resident’s health has improved sufficiently and no longer needs the services provided by the facility,” the field for Resident # 1’s physician to sign and date the form is conspicuously blank.  CMS Ex. 6 at 45 (capitalization omitted).  In fact, Resident # 1’s physician reported to the surveyor that “Resident 1 was re-admitted to the facility on 7/12/19, as soon as he found out the resident was inappropriately discharged.”  CMS Ex. 10 at 6; see CMS Ex. 6 at 70 (July 12, 2019 progress note reporting Resident # 1 was “re-admitted to the facility [at] approximately 12:25 pm accompanied by staff”).

In contravention of 42 C.F.R. § 483.15(c)(1)(B), Petitioner discharged Resident # 1 to a private boarding home when he still required assistance and supervision from facility staff.  The facility determined this inappropriate discharge was “necessary” without obtaining approval, much less documentation, from Resident # 1’s physician, as required by 42 C.F.R. § 483.15(c)(2) and its own policy.  See CMS Ex. 14 at 11.

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Petitioner similarly inappropriately discharged Resident # 2.  Several days prior to Resident # 2’s discharge, a physical therapist documented that Resident # 2 had  “Fair +” sitting balance and “Fair –” standing balance, at which time the physical therapist made a discharge recommendation of “24 hour care.”  P. Ex. 2 at 4-6.  Likewise, an occupational therapist documented that Resident # 2 required supervision and assistance with ADLs and had “severe dependence” based on a Modified Barthel Index Activities for Daily Living assessment.  P. Ex. 2 at 9-10.  A discharge summary and guide for aftercare reported that Resident # 2 used a wheelchair and required assistance with walking, bathing, and toileting and could not climb stairs.  CMS Ex. 7 at 23.

Not only did Resident # 2’s physician not document that her health had improved such that she no longer required the services of the facility, but Petitioner itself also did not document that it had made such a determination.  See CMS Ex. 7 at 23 (discharge summary providing no reason for Resident # 2’s discharge).  There is simply no indication that Resident # 2’s health had improved such that she no longer required the services of the facility, in contravention of 42 C.F.R. § 483.15(c)(1)(B) and (2).

Petitioner discharged Resident # 3 from the facility on April 10, 2019.  ADL logs document that Petitioner provided the support of a one-person assist with toileting, bed mobility, transfers, and walking (both in the room and in the corridor) almost every day in the week preceding Resident # 3’s discharge.  CMS Ex. 8 at 31, 36; but see CMS Ex. 8 at 22 (April 10, 2019 discharge summary reporting that Resident # 3 performed all ADLs independently).

Once again, Petitioner discharged a resident despite the lack of any indication that her health had improved such that she no longer required the services of the facility.  Not only did Petitioner not list a reason for discharging Resident # 3, but Petitioner failed to obtain documentation from Resident # 3’s physician that her health had improved such that she no longer required the services of the facility.  See CMS Ex. 8 at 21 (discharge summary providing no reason for Resident # 2’s discharge); P. Ex. 3 at 7 (telephone physician order reporting that Resident # 3 was discharged to a “lower level of care”).

Petitioner discharged Resident # 4 on May 3, 2019, and again failed to obtain documentation from the resident’s physician that his health had improved such that he no longer required the services of the facility.  See CMS Ex. 9 at 8 (reporting that the reason for discharge is that Resident # 4’s “[h]ealth improved”).  Significantly, within the week of his discharge, Petitioner assessed that Resident # 4 required as much as a one-person physical assist with all ADLs and as much as extensive assistance with transfers, dressing, and toilet use.  CMS Ex. 9 at 5-6.  However, only 6 days later, when Petitioner discharged Resident # 4, Petitioner determined that Resident # 4 performed all ADLs independently.  CMS Ex. 9 at 8.

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Petitioner repeatedly discharged residents to a private boarding home.  See P. Br. (“[T]he residents were transferred to free standing independent senior housing facilities, namely House of Heavenly Angels.”).  The unrefuted evidence indicates that the private boarding home did not provide nursing or ADL assistance.  CMS Ex. 11 at 8 (notes from interview with homeowner reporting that she rented out rooms to help with her mortgage, did not administer medications, and expected that Resident # 1 would be independent).  Although Petitioner argues “it is undeniable that [it] was in compliance with all applicable regulations at all relevant times,” it previously recognized that it had “[d]ischarge[d] patients to [an] unsafe location without proper documentation.”  CMS Ex. 15 at 1;  see CMS Ex. 1 at 1.

Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.  42 C.F.R. § 488.301.  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.”  42 C.F.R. § 498.60(c).  The Departmental Appeals Board 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)).

Petitioner discharged four residents to a private home even though their health had not improved such that they no longer required skilled nursing care.  All four residents had a documented need for assistance with ADLs, with Resident # 1 and Resident # 3 being unsteady and only able to stabilize with staff assistance when performing certain activities, Resident # 2 exhibiting requiring assistance with all ADLs, exhibiting “severe dependence,” and being recommended “24 hour care,” and Resident # 4 requiring as much as extensive assistance with several ADLs in the days leading up to his discharge and multiple days of hemodialysis per week.  CMS Exs. 6 at 51; 7 at 23; 8 at 11; 9 at 5-6; P. Ex. 2 at 6, 10.

Considering the mobility and ADL limitations of these four residents, alone, Petitioner, placed these residents at risk for significant harm of injury from causes such as unattended falls.  See CMS Br. at 11-14.  Residents who had required assistance with basic steadiness, essentially up to the point of discharge from the facility, were inappropriately forced out and left without the basic care that ensured they could safely ambulate, conduct personal hygiene, and eat.  Residents who were assessed as being unsteady, severely dependent, and/or requiring assistance with ADLs only days prior were cast off with no assistance, and their improper discharges amounted to real and significant risk for serious harm.  Petitioner has not demonstrated clear error in CMS’s determination that the improper discharges of these four residents amounted to immediate jeopardy to their health and safety.

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Further, aside from the risk of physical harm resulting from unattended injury, the record lacks any support for the proposition that Resident # 1, who was not fully oriented in all spheres, would be able to adhere to a daily medication regimen that included long‑term tuberculosis treatment.  It unfortunately comes as no surprise that Resident # 1 failed to take his tuberculosis medication during the 18 days following his discharge.  See CMS Exs. 6 at 57 (Petitioner’s monthly tuberculosis update for Resident # 1 to the public health department); 15 at 1 (“Patient was unable to administer medication in the accepting facility.”).  Additionally, Petitioner discharged Resident # 1 with a medication that had been previously discontinued due a potential adverse interaction.  CMS Ex. 6 at 7, 17, 28.  Petitioner has not shown that CMS’s determination that its improper discharge with the incorrect medications, and resulting gap in tuberculosis treatment, exposed Resident # 1 to a likelihood of serious harm or death is clearly erroneous.  See CMS Ex. 16 at 7 (Centers for Disease Control and Prevention “Questions and Answers About Tuberculosis”) (“If not treated properly, TB disease can be fatal.”); 20 (“If you don’t continue taking your medicines or you aren’t taking all you medicines regularly, this can be very dangerous.  The TB bacteria will grow and you will remain sick for a longer time.  The bacteria may also become resistant to the medicines you are taking.”).

Finally, Petitioner discharged Resident # 4, who required hemodialysis three times per week, without any instructions regarding how he would continue his treatments or obtain transportation for these appointments.  CMS Ex. 9 at 8-10.  Petitioner’s failure to provide Resident # 4 any guidance, much less documented arrangements, for continued hemodialysis treatments posed a likelihood of serious harm.

The deficiency cited under Tag F622 does not encompass a failure to communicate certain information required by 42 C.F.R. § 483.15(c)(2) because that requirement is inapplicable to the instant circumstances.

The statement of deficiencies addressed noncompliance with 42 C.F.R. § 483.15(c)(2), which requires that a facility transferring or discharging a resident under specified circumstances communicate certain information to a “receiving health care institution or provider.”  CMS’s SOM, addressing the requirement at section 483.15(c)(2), explained that section 483.15(c)(2) “specif[ies] the information that must be conveyed to the receiving provider for residents being transferred or discharged to another healthcare setting.”  CMS Pub. 100-7, Appendix PP (Rev. 173, Nov. 22, 2017).  Thus, CMS has determined that section 483.15(c)(2) is applicable when a resident is transferred or discharged to another healthcare setting.  While Petitioner inexcusably offered inadequate, and even erroneous, discharge guidance to four residents, CMS has not demonstrated that these lapses amount to noncompliance with section 483.15(c)(2). Because Resident # 1, Resident # 2, Resident # 3, and Resident # 4 were discharged to a private home, and not a healthcare setting, 42 C.F.R. § 483.15(c)(2) is inapplicable under the circumstances.

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26.   The statement of deficiencies indicates that immediate jeopardy was called on August 7, 2019 and abated on August 9, 2019.

27.   CMS, in its September 12, 2019 notice, concurred with the statement of deficiencies.

28.   The September 12, 2019 notice stated that the state agency called immediate jeopardy on August 7, 2019 and determined it was abated on August 9, 2019; the notice does not identify immediate jeopardy at any time other than between August 7 and 9, 2019.

29.   CMS’s brief and supplemental brief both state that “CMS determined that immediate jeopardy to a resident’s health and safety was identified on August 7, 2019 and abated on August 9, 2019”; CMS does not argue that immediate jeopardy existed at any time other than the August 7-9, 2019 timeframe.

30.   The period of immediate jeopardy noncompliance is from August 7-8, 2019, with immediate jeopardy abated on August 9, 2019.

The statement of deficiencies reports the following:

On 8/7/19 at 1:17 p.m., an Immediate Jeopardy . . . was declared for the facility’s unsafe discharge practices.  The facility’s Administrator and Director of Nursing (DON) were notified of the serious noncompliance that threatened the residents’ health and safety. On 8/9/19 at 4:24 p.m., after the team verified that the plan of action (POA) was implemented the [immediate jeopardy] was lifted.

CMS Ex. 1 at 1.  The statement of deficiencies reiterated, on page 6, that “[o]n 8/17/19 at 1:17 p.m., an Immediate Jeopardy ([IJ] a situation in which the facility’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) was declared for F622.”  The statement of deficiencies does not report that the survey team called immediate jeopardy prior to August 7, 2019, or that the survey team otherwise determined that an immediate jeopardy situation existed prior to August 7, 2019.  CMS Ex 1.  A worksheet completed by the surveyor, “State Critical Path, Does immediate jeopardy exist,” specifically documented that the survey team determined that immediate jeopardy began on August 7, 2019, at 11:30 am.  CMS Ex. 13 at 2.  As with the statement of deficiencies, the survey team worksheet lacks any indication that the survey team determined that immediate jeopardy existed prior to August 7, 2019.  CMS Ex. 13.

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CMS, in a letter dated September 12, 2019, reported that the state agency “survey findings documented that immediate jeopardy to resident’s health and safety was identified on August 7, 2019,” and that the “immediate jeopardy was abated on August 9, 2019.”  CMS explained, “[h]aving reviewed the September 10, 2019 survey findings and the State Survey Agency recommendations, this office has concluded that we concur with the findings documented during the survey completed on September 10, 2019 (and listed on the above-referenced Form CMS-2567 for that survey).”  CMS Ex. 3 at 1.  CMS did not determine that immediate jeopardy existed prior to August 7, 2019.  CMS Ex. 3.  However, in the section pertaining to imposition of remedies, CMS explained that it had imposed a per-day CMP of $8,830 beginning on July 13, 2019, which it reported was the “entry date of the date of the survey.”  CMS Ex. 3 at 2.

In the factual background presented in its principal brief, CMS stated, “CMS determined that immediate jeopardy to a resident’s health and safety was identified on August 7, 2019 and abated on August 9, 2019.”  CMS Br. at 2.  CMS did not argue, much less state, that immediate jeopardy existed at any time prior to August 7, 2019.

In its pre-hearing exchange, Petitioner specifically disputed whether CMS had a basis to impose a per-day CMP of $8,830 prior to August 7, 2019, arguing that “CMS is attempting to improperly impose a CMP of $8,830 per day from July 13, 2019, but there was no alleged immediate jeopardy until August 7, 2019, some 25 days later.”  P. Br.  In a brief filed after Petitioner raised this argument, CMS reiterated, “CMS determined that immediate jeopardy to a resident’s health and safety was identified on August 7, 2019 and abated on August 9, 2019.”  CMS Supp Br. at 1.  Addressing the per‑day CMP, CMS simply stated, “[t]he $8,830 per day CMP that CMS imposed is within that range and reasonable.”  CMS Supp. Br. at 8.  Thus, even with an opportunity to dispute Petitioner’s argument that immediate jeopardy was not cited prior to August 7, 2019, CMS declined to argue that immediate jeopardy existed prior to August 7, 2019. 

The record lacks any citation for noncompliance prior to August 7, 2019, much less immediate jeopardy noncompliance.  To the extent CMS imposed a per-day CMP at the immediate jeopardy level beginning on the “entry date of the date of the survey,” July 13, 2019, the record is silent for a finding of a deficiency at any level of severity dating back to July 13, 2019.11   If I were to determine that immediate jeopardy existed beginning on July 13, 2019, then I would be making an immediate jeopardy finding in the first instance.  Consistent with the record, the period of immediate jeopardy noncompliance is

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from August 7 through August 8, 2019, with abatement of immediate jeopardy on August 9, 2019.  CMS Exs. 1 at 1, 6; 3 at 1.

31.   Petitioner has not provided any basis to dispute CMS’s determination that it returned to substantial compliance on October 10, 2019.

In its September 10, 2019 notice, CMS informed Petitioner that although it had abated immediate jeopardy on August 9, 2019, it remained out of compliance with Medicare participation requirements.  CMS Ex. 3 at 1-2.  In a subsequent letter dated October 16, 2019, CMS explained that based on a follow-up survey conducted on October 10, 2019, it had determined that Petitioner had returned to substantial compliance.  CMS Ex. 4 at 2.

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.  Premier Living & Rehab Ctr., DAB No. 2146 at 23 (2008); 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); see also Grace Living Ctr. – Northwest OKC, DAB No. 2633 at 3 (2015) (citing Owensboro Place & Rehab. Ctr., DAB No. 2397 at 12 (2011)).  Noncompliance found during a survey is “presumed to continue until the facility demonstrates it has achieved substantial compliance.”  Taos Living Ctr., DAB No. 2293 at 20 (2009).

Because Petitioner has not argued that it returned to substantial compliance prior to October 10, 2019, there is no basis to disturb CMS’s determination that, based on a re‑visit survey, Petitioner returned to substantial compliance on October 10, 2019.

32.   CMS was authorized to impose a DPNA beginning on September 27, 2019, and continuing until Petitioner returned to substantial compliance on October 10, 2019.

CMS may impose a discretionary DPNA any time a facility is not in substantial compliance with Medicare participation requirements.  42 C.F.R. § 488.417(a).  When a facility does not have repeated instances of substandard quality of care, payments resume when the facility achieves substantial compliance.  Act § 1819(h)(3) (42 U.S.C. § 1395i‑3(h)(3)); 42 C.F.R. § 488.417(d).

In its September 10, 2019 notice, CMS advised that it intended to impose a discretionary DPNA pursuant to 42 C.F.R. § 488.417(a) if Petitioner remained out of compliance on September 27, 2019.  CMS Ex. 3 at 2.  Because Petitioner remained out of compliance through October 10, 2019, the DPNA went into effect on September 27, 2019 and continued until Petitioner returned to substantial compliance on October 10, 2019.  CMS

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Ex. 4 at 1.  Petitioner neither argues that CMS lacked a regulatory basis to impose a DPNA pursuant to 42 C.F.R. § 488.417(a) nor offers any evidence demonstrating that it returned to substantial compliance prior to October 10, 2019.  CMS was authorized to impose a DPNA from September 27, 2019, until Petitioner returned to compliance on October 10, 2019.

33.   A per-day CMP of $6,525 is a reasonable enforcement remedy for the immediate jeopardy noncompliance.

34.   A per-day CMP of $110 is a reasonable enforcement remedy for the period of substantial noncompliance through and inclusive of October 9, 2019.

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, Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (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 range of a

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CMP, $3,050 per day to $10,000 per day, as adjusted annually under 45 C.F.R. pt. 102, is reserved for deficiencies that pose immediate jeopardy to a facility’s residents and, in some circumstances, for repeated deficiencies.  42 C.F.R. § 488.438(a)(1)(i), (d)(2).  The lower range of CMP, $50 to $3,000 per day, as adjusted annually under 45 C.F.R. pt. 102, is reserved for deficiencies that do not pose immediate jeopardy, but either cause actual harm to residents, or cause no actual harm but have the potential for causing more than minimal harm.  42 C.F.R. § 488.438(a)(1)(ii).  The inflation-adjusted per-day CMP ranges applicable to this case are $6,525 to $21,393 for the period of immediate jeopardy noncompliance, and $107 to $6,418 for the period of substantial noncompliance.  45 C.F.R. § 102.3 (2018).  In assessing the reasonableness of a CMP amount, 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 (2010).  In this case, CMS imposed a per-day CMP of $8,830 for immediate jeopardy noncompliance, and a per-day CMP of $110 for substantial noncompliance that was not immediate jeopardy.

Because, as discussed above, CMS partially based its finding of immediate jeopardy noncompliance on an inapplicable provision of 42 C.F.R. § 483.15(c)(2), I reduce the per-day CMP for immediate jeopardy noncompliance accordingly.  See CMS Ex. 3; see also CMS Br. at 7-14.  A reduction by approximately one quarter is appropriate, with such a reduction yielding a CMP at the bottom of the applicable penalty range.  Although I have reduced the CMP because a portion of the basis underlying the immediate jeopardy determination is unsubstantiated, I reluctantly do so in the face of Petitioner’s history of noncompliance and abhorrent pattern of improperly discharging its residents to unsafe conditions.  See CMS Exs. 5; 15 at 1.  A per-day CMP of $6,525 for immediate jeopardy noncompliance is therefore appropriate.  See 42 C.F.R. §§ 488.408(e)(1)(iii); 488.438(a)(1)(i)); 45 C.F.R. § 102.3 (2018).

Petitioner has not offered any basis to dispute the near-minimum per-day CMP of $110 for the non-immediate jeopardy noncompliance.  The per-day CMP of $110 is reasonable.  See 42 C.F.R. § 488.438(f).

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IV.   Conclusion

For the reasons discussed above, I find that the facility was not in substantial compliance with the Medicare participation requirements.  A per-day CMP of $6,525 for immediate jeopardy noncompliance, from August 7 through August 8, 2019, a per-day CMP of $110 for non‑immediate jeopardy noncompliance from August 9 through October 9, 2019, and a DPNA from September 27 through October 9, 2019, are reasonable enforcement remedies.

1.  The per-day CMP ranges applicable to this case are $6,525 to $21,393 for immediate jeopardy-level deficiencies and $107 to $6,418 for deficiencies that do not constitute immediate jeopardy.  45 C.F.R. § 102.3 (2018).  The aforementioned CMP ranges reflect statutorily mandated amounts and ranges as adjusted for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015, 104 Pub. L. No. 114-74, § 701.  See 83 Fed. Reg. at 51,369-70, 51,380 (Oct. 11, 2018).
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2.  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.  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.  CMS Pub. 100-7, State Operations Manual (SOM), chap. 7, § 7400.3.1 (Factors That Must be Considered When Selecting Remedies), “Assessment Factors Used to Determine the Seriousness of Deficiencies Matrix” (table) (Rev. 63, effective November 16, 2018); see also 42 C.F.R. § 488.408.  As relevant here, a scope and severity level of “K” indicates a pattern of immediate jeopardy to resident health or safety.
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4.  Petitioner’s caustic accusations against the surveyor are largely unaccompanied by probative citations to the evidentiary record.  For example, Petitioner made the following unsupported accusations about the surveyor in its unpaginated brief:  She did not conduct the survey “properly or fairly”; engaged in “unprofessional misconduct and clear bias during the survey”; “blatantly abused her discretion”; “improperly chose to ignore and disregard” facts; provided testimony that is “outright false . . . and completely disproven by the credible evidence”; “blatantly ignored important and relevant evidence and misrepresented statements of percipient witnesses”; provided “unreliable” testimony; “issued a deficiency that was without basis and inconsistent with CMS’ scope and severity grid”; performed a “deficient investigation”; “failed to comply with the guidelines” in the SOM; “did not perform a proper and thorough investigation”; conducted an investigation and made findings that “are entirely predicated on assumptions, speculations, and statements and information that she cherry-picked and misconstrued in order to maintain a finding of immediate jeopardy”; made “[false] claims”; “refused to take . . . information into consideration”; “misquoted” information; “selectively reviewed, collected, and proffered” evidence; performed “an incomplete and lopsided investigation”; and predicated her investigation on “unsubstantiated statements.”  It is unlikely that any state agency survey is perfect and entirely free of error.  However, an ordinary error, such as a misstatement or failure to precisely adhere to a procedure, that is not outcome-determinative does not typically amount to professional misconduct, bias, or a misrepresentation that impugns the character and integrity the surveyor.  Absent substantiation of the aforementioned serious allegations, the accusations by Petitioner and its counsel reflect more on their professionalism than the professionalism of the surveyor.
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5.  Findings of fact and conclusions of law are in bold and italics.
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6.  A February 26, 2019 outpatient report documents ongoing homelessness.  CMS Ex. 6 at 5.
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7.  An individual who is alert and oriented x 2 is oriented to person and place.  Based on this assessment, Resident # 1 knew his name and location, but was not oriented to time (i.e., day of the week) or situation (i.e., why he was residing in the facility).
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8.  Petitioner defines rehabilitation potential as “the ability to improve independence in functional status through restorative care programs.”  CMS Ex. 14 at 7.
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9.  Petitioner discharged Resident # 3 on April 10, 2019.  CMS Ex. 8 at 21, 24; P. Ex. 3 at 1, 4, 7, 8.  There is no rational explanation for why, or how, Petitioner documented ADL performance over three shifts on April 11, 12, and 13, 2019.  See CMS Ex. 8 at 31, 32, 36 (three pages of logs documenting ADL performance through April 13, 2019).
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10.  Because Petitioner did not paginate its brief, I do not provide pinpoint citations.
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11.  It is unclear how the entry date of the survey, in and of itself, would be the onset date for immediate jeopardy noncompliance.  I note that the four residents whose discharges are the focus of the cited deficiency were improperly discharged on April 1 and 10, May 3, and June 24, 2019.  CMS Exs. 6 at 43; 7 at 23; 8 at 21; 9 at 8.
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