Donelson Place Care and Rehabilitation Center, DAB CR5132 (2018)

DECISION

Petitioner, Donelson Place Care and Rehabilitation Center, was not in substantial compliance with program participation requirements from December 1, 2014 to termination of its participation in Medicare on June 1, 2015, due to violations of multiple participation requirements established by 42 C.F.R. pt. 483.1  There is a basis for the imposition of enforcement remedies.  The following enforcement remedies are reasonable:

Termination of Petitioner’s provider agreement and participation in Medicare effective June 1, 2015;

Civil money penalty (CMP) of $200 per day from December 19, 2014 through January 25, 2015;

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CMP of $1200 per day from January 26, 2015 through February 24, 2015;

CMP of $2,050 per day from February 25, 2015 through April 21, 2015;

CMP of $6,800 per day from April 22, 2015 through June 1, 2015; and

Denial of payment for new admissions (DPNA) effective December 13, 2014 through termination on June 1, 2015.

I.  Background

Petitioner is located in Nashville, Tennessee.  Petitioner participated in Medicare as a skilled nursing facility (SNF) and Medicaid as a nursing facility (NF) prior to the termination of its provider agreement effective June 1, 2015.  Petitioner’s Proposed Findings of Fact and Conclusions of Law (PPFFCL) at 1 ¶ 1.

There were multiple surveys in this case. 

On December 1, 2014, a complaint investigation was completed at Petitioner’s facility – the first survey involved in this case.  The survey cited Petitioner for nine regulatory violations that posed immediate jeopardy beginning October 12, 2014, and were continuing at the time of the survey.  CMS Ex. 1 at 1-2.  The deficiency citations from the survey, the allegation that the deficiencies posed immediate jeopardy beginning October 12, 2014, and enforcement remedies based on the survey are not at issue before me because on February 5, 2015, Petitioner elected to waive its right to administrative law judge (ALJ) review and accepted a 35 percent reduction in the proposed CMP as authorized by 42 C.F.R. § 488.436.  PPFFCL at 2-3 ¶ 11-12; Amended Request for Hearing dated June 9, 2015 (June 9 RFH); CMS Ex. 5; Transcript (Tr.) 52-54.2  Even though Petitioner waived review, it is important to know that December 1, 2014, began a six-month survey cycle.  According to the Centers for Medicare & Medicaid Services (CMS), the six-month survey cycle expired without Petitioner returning to substantial compliance and that caused mandatory termination of Petitioner’s provider agreement and Medicare participation pursuant to section 1819(h)(2)(C) of the Social Security Act (Act) and 42 C.F.R. § 488.412(a).  A first revisit survey occurred on December 17, 2014,

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and the surveyors found Petitioner had abated immediate jeopardy but failed to return to substantial compliance with program participation requirements.  CMS Ex. 3.  A second revisit survey and complaint investigation concluded on January 29, 2015, determined that Petitioner corrected all deficiencies from the December 2014 surveys as of December 19, 2014.  CMS Ex. 7.  Based on the deficiencies cited by the December surveys, CMS imposed a $10,000 per instance CMP (PICMP); a $150 per day CMP effective December 11 through 18, 2014, and a discretionary DPNA that began on December 13, 2014, and continued until Petitioner returned to substantial compliance or its provider agreement was terminated.  CMS Exs. 14-15.

However, the second revisit survey that concluded on January 29, 2015, found new regulatory violations that posed a risk for more than minimal harm and amounted to noncompliance.  CMS Ex. 6.  CMS imposed a CMP $200 per day effective December 19, 2014, based on the new findings of noncompliance and the DPNA continued because Petitioner failed to return to substantial compliance.  CMS Ex. 16.

On March 4, 2015, a third revisit survey and complaint investigation were completed.  CMS Ex. 8.  The surveyors determined Petitioner:  had not returned to substantial compliance and failed to implement an approved plan of correction for a deficiency that began in October 2014 that was cited by the January 29, 2015 survey.  CMS Ex. 8.  CMS increased the $200 per day CMP in effect from December 19, 2014 through January 25, 2015, to $1200 per day effective January 26, 2015.  The DPNA that began on December 13, 2014, continued.  CMS Ex. 9.

On March 20, 2015, Petitioner’s annual survey and a complaint investigation were completed.  The surveyors concluded that Petitioner remained out of substantial compliance for regulatory violations that posed a risk for more than minimal harm, with some dating back to August 2014.  CMS Ex. 10.  CMS increased the accruing CMP of $1200 per day from January 26 through February 24, 2015, to $2050 per day beginning February 25, 2015.  CMS Ex. 17.

On May 22, 2015, the fourth and final revisit survey and complaint investigation were completed.  The surveyors again determined Petitioner was not in substantial compliance due to multiple regulatory violations that posed a risk for more than minimal harm and some posed immediate jeopardy.  CMS Ex. 13.

CMS notified Petitioner on May 29, 2015, that involuntary termination would occur on June 1, 2015, in accordance with 42 C.F.R. §§ 488.456(b)(1)(i) and 489.53.  CMS advised Petitioner that enforcement remedies continued.  The CMP was revised from $2050 per day for the period February 25, 2015 through April 21, 2015, to $6800 per day beginning April 22, 2015 and continuing through June 1, 2015 when Petitioner’s provider agreement was to be terminated.  The DPNA remained in effect from December 13, 2014 through termination.  CMS Ex. 18.

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Petitioner requested a hearing before an ALJ by letter dated April 10, 2015 (April 10 RFH).  Petitioner requested review of the findings of noncompliance and resulting remedies from the January 29, 2015, March 4, 2015, and March 20, 2015 surveys.  April 10 RFH.  On May 11, 2015, the case was assigned to me for hearing and decision, and an Acknowledgment and Prehearing Order (Prehearing Order) was issued.  Petitioner filed an amended request for hearing on June 9, 2015 (June 9 RFH), in which it requested review of the findings of noncompliance and resulting remedies from the May 22, 2015 survey, in addition to appealing the earlier surveys.  June 9 RFH.

The hearing was convened by video teleconference on July 13 through 16, 2015.  A transcript (Tr.) of the proceedings was prepared.  CMS offered CMS Exs. 1 through 53, and all were admitted as evidence.  Tr. 25-26.  Petitioner offered Petitioner’s exhibits (P. Exs.) 1 through 22 that were admitted as evidence.  Tr. 26-27.

CMS called the following witnesses:  Surveyor Heather McCurry, R.N.; Timothy Arms, the nephew of Resident 102; Surveyor Teresa Kirkpatrick, R.N.; Surveyor Cynthia Thomas, R.N.; Surveyor Bill Brasher, R.N.; Laura Brown, Tennessee State Long-Term Care Ombudsman; Surveyor Kenneth R. Trent, R.N.; state agency Social Counselor Laura Rich; and Surveyor Beverly Cox, R.N.  Petitioner called the following witnesses:  Joseph Steier, President and Chief Executive Officer, Signature Healthcare; Teri Fallon, R.N.; Donald Vollmer, M.D., Petitioner’s Medical Director; Ed Hogan, Petitioner’s former Administrator; Robert Weibbecke, L.P.N.; Gregory Hardy, R.N., Petitioner’s former Assistant Director of Nursing (ADON); Kristin Wright, Petitioner’s Director of Social Services; Lucy James, R.N., Petitioner’s former Director of Nursing (DON); William Blank, Regional Vice President of Operations, Signature Healthcare; and Alan Hall, Petitioner’s Administrator from December 2014 until March 2015.

Subsequent to the hearing, on August 11, 2015, CMS moved to admit as evidence two additional exhibits, CMS Exs. 54 and 55.  CMS argues it is appropriate to admit the documents as they are related to testimony offered during the hearing in this case and are necessary to complete the record.  Petitioner does not object to my consideration of CMS Exs. 54 and 55, and they are admitted.  Tr. 176-77.

On September 3, 2015, CMS filed a motion to admit CMS Exs. 56 and 57 as evidence in rebuttal of the testimony of Petitioner’s witness Teri Fallon, R.N., specifically at Tr. 703-08.  Petitioner admitted at hearing that it was raising the issue to which Nurse Fallon testified for the first time at hearing.  Tr. 707-08.  CMS argues that because the issue to which Nurse Fallon testified was raised for the first time at trial and because Nurse Fallon’s testimony was inaccurate or misleading, there are grounds for admitting rebuttal evidence post-hearing.  CMS Motion for Admission of Rebuttal Evidence.  CMS Ex. 56 is a copy of a Statement of Deficiencies (SOD) from the survey completed on May 22, 2015, that cites state deficiencies and includes Petitioner’s plan of correction with an

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alleged completion of correction date of June 24, 2015.  CMS Ex. 56.  Nurse Fallon testified, inconsistently with CMS Ex. 56, that Petitioner had alleged correction of the state deficiency citations as of June 1, 2015.  Tr. 703-04.  CMS Ex. 57 is a form that shows that the state agency concluded that Petitioner had corrected as of June 24, 2015, the deficiencies cited by the May 22, 2015 survey.  CMS Ex. 57.  R.N. Fallon testified inconsistently with CMS Ex. 57 that the state agency concluded that Petitioner had corrected the deficiencies and returned to substantial compliance as of June 1, 2015.  Tr. 704.  On September 8, 2015, Petitioner filed a reply to CMS’s September 3, 2015 motion for admission of rebuttal evidence.  Petitioner questions the relevancy and materiality of both CMS Exs. 56 and 57, but states that it has no objection to CMS Ex. 56.  CMS Exs. 56 and 57 show, contrary to R.N. Fallon’s testimony, that Petitioner alleged that it completed correction of the state citations from the May 22, 2015 survey as of June 24, 2015, and that is the date of correction found by the state agency.  Petitioner’s Reply to CMS’s Motion for Admission of Rebuttal Evidence.  CMS offers CMS Exs. 56 and 57 for the limited purpose of rebutting the inaccurate and potentially misleading testimony of Nurse Fallon.  CMS Exs. 56 and 57 are relevant and material given the limited purpose for which they are offered, there is no question as to the authenticity of the documents, and they are admitted.

On September 8, 2015, CMS filed a “Corrected CMS Ex. 49” and a motion to admit the corrected exhibit.  CMS stated that it inadvertently omitted pages from the original CMS Ex. 49.  CMS filed the original CMS Ex. 49, consisting of 52 pages, as part of its prehearing exchange on July 1, 2015.  The Corrected CMS Ex. 49 includes 357 pages.  Petitioner has not objected to CMS’s motion, and the Corrected CMS Ex. 49 is admitted as evidence.

The parties filed post-hearing briefs on September 8, 2015 (Petitioner’s Brief (P. Br.) and CMS Brief (CMS Br.), respectively).  The parties filed post-hearing reply briefs on October 5, 2015 (Petitioner’s Reply (P. Reply) and CMS Reply, respectively).

II.  Discussion

A.  Issues

Whether there is a basis for the imposition of an enforcement remedy; and, if so,

Whether the remedy imposed is reasonable.

B.  Applicable Law

The statutory and regulatory requirements for participation of a SNF in Medicare are at section 1819 of the Act and 42 C.F.R. pt. 483.  Section 1819(h)(2) of the Act authorizes

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the Secretary to impose enforcement remedies against a SNF for failure to comply substantially with the federal participation requirements established by sections 1819(b), (c), and (d) of the Act.3 The Act requires that the Secretary terminate the Medicare participation of any SNF that does not return to substantial compliance with participation requirements within six months of being found not to be in substantial compliance.  Act § 1819(h)(2)(C).  In this case, Petitioner was determined not to be in substantial compliance by the survey completed on December 1, 2014.  Petitioner’s Medicare provider agreement and participation were terminated pursuant to the statute six months later on June 1, 2015.  The Act also requires that the Secretary deny payment of Medicare benefits for any beneficiary admitted to a SNF if the SNF fails to return to substantial compliance with program participation requirements within three months of being found not to be in substantial compliance – commonly referred to as the mandatory or statutory DPNA.  Act § 1819(h)(2)(D).  The Act grants the Secretary discretionary authority to terminate a noncompliant SNF’s participation in Medicare, even if there has been less than 180 days of noncompliance.  The Act also grants the Secretary authority to impose other enforcement remedies, including a discretionary DPNA, CMPs, appointment of temporary management, and a directed plan of correction.  Act § 1819(h)(2)(B).  CMS imposed a discretionary DPNA in this case beginning December 13, 2014.  Whether it was reasonable to continue the DPNA until termination on June 1, 2015, is an issue in this case.

The Secretary has delegated to CMS and the states the authority to impose remedies against a long-term care facility that is not complying substantially with federal participation requirements.  “Substantial compliance [complying substantially] means a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301 (italics in original).  A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Act or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B.  Therefore, a facility may violate a statutory or regulatory requirement, but it is not subject to enforcement remedies if the violation does not pose a risk for more than minimal harm.  The term “noncompliance” refers to any deficiency (statutory or regulatory violation) that causes a facility not to be in substantial compliance; that is, a deficiency that poses a risk for more than minimal harm.  42 C.F.R. § 488.301.  State survey agencies survey facilities that participate in

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Medicare on behalf of CMS to determine whether the facilities are complying with federal participation requirements.  42 C.F.R. §§ 488.10-.28, 488.300-.335.  The regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance with Medicare requirements.  42 C.F.R. § 488.406.

The Act and regulations make a hearing before an ALJ available to a long-term care facility against which CMS has determined to impose an enforcement remedy.  Act §§ 1128A(c)(2), 1866(h); 42 C.F.R. §§ 488.408(g), 498.3(b)(13).  A facility has a right to appeal a “certification of noncompliance leading to an enforcement remedy.”  42 C.F.R. §§ 488.408(g)(1), 488.330(e), 498.3(b)(13).  However, the choice of remedies, or the factors CMS considered when choosing remedies, are not subject to review.  42 C.F.R. § 488.408(g)(2).  A facility may only challenge the scope and severity level of noncompliance determined by CMS if a successful challenge would affect the range of the CMP that may be imposed or impact the facility’s authority to conduct a NATCEP.  42 C.F.R. § 498.3(b)(14), (d)(10)(i).  The CMS determination as to the level of noncompliance, including the finding of immediate jeopardy, “must be upheld unless it is clearly erroneous.”  42 C.F.R. § 498.60(c)(2); Woodstock Care Ctr., DAB No. 1726 at 9, 38 (2000), aff’d, 363 F.3d 583 (6th Cir. 2003).  The Board has long held that the net effect of the regulations is that a provider has no right to challenge the scope and severity level assigned to a noncompliance finding, except in the situation where that finding was the basis for an immediate jeopardy determination.  See, e.g., Ridge Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000).  ALJ review of a CMP is subject to 42 C.F.R. § 488.438(e).

The hearing before an ALJ is a de novo proceeding, i.e., “a fresh look by a neutral decision-maker at the legal and factual basis for the deficiency findings underlying the remedies.”  Life Care Ctr. of Bardstown, DAB No. 2479 at 32 (2012) (citation omitted); The Residence at Salem Woods, DAB No. 2052 (2006); Cal Turner Extended Care Pavilion, DAB No. 2030 (2006); Beechwood Sanitarium, DAB No. 1906 (2004); Emerald Oaks, DAB No. 1800 at 11 (2001); Anesthesiologists Affiliated, DAB No. CR65 (1990), aff’d, 941 F.2d 678 (8th Cir. 1991).  The regulations that establish the procedures for adjudication of this case at 42 C.F.R. pt. 498 do not specify the standard of proof or quantum of evidence or the allocation of the burden of persuasion.  The Board has determined in prior decisions that the standard of proof is a preponderance of the evidence.  The Board has also determined that CMS has the burden of coming forward with the evidence and making a prima facie showing of a basis for the imposition of an enforcement remedy.  If CMS makes a prima facie showing, then Petitioner bears the burden of persuasion to show by a preponderance of the evidence that it was in substantial compliance with participation requirements or any affirmative defense.  Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800; Cross Creek Health Care Ctr., DAB No. 1665 (1998); Hillman Rehab. Ctr., DAB No. 1611 (1997) (remand), DAB No. 1663 (1998) (aft.

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remand), aff’d, Hillman Rehab. Ctr. v. United States, No. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999).

C.  Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold text followed by my findings of fact and analysis.  I have carefully considered all the evidence and the arguments of both parties, although not all may be specifically discussed in this decision.  I discuss the credible evidence given the greatest weight in my decision-making.4  I also discuss any evidence that I find is not credible or worthy of weight.  The fact that evidence is not specifically discussed should not be considered sufficient to rebut the presumption that I considered all the evidence and assigned such weight or probative value to the credible evidence that I determined appropriate within my discretion as an ALJ.  There is no requirement for me to discuss the weight given every piece of evidence considered in this case, nor would it be consistent with notions of judicial economy to do so.  Charles H. Koch, Jr., Admin. L. & Prac. § 5:64 (3d ed. 2013).

Following the presentation of the CMS case-in-chief, Petitioner moved for a judgment, similar to a motion for judgment on partial findings as authorized under Fed. R. Civ. P. 52(c).  Tr. 547-68.  Petitioner cited as grounds that CMS failed to make a prima facie showing of noncompliance and the scope and severity alleged.  I deferred a ruling until such time as the parties could file proposed findings of fact and conclusions of law and their briefs, and I could issue written findings and conclusions as required by 5 U.S.C. § 557(c) and 42 C.F.R. § 498.74(a).  Tr. 575-78.  Petitioner’s motion is resolved adversely by this decision.

1.  It is not disputed that Petitioner was not in substantial compliance during the period December 1 through 18, 2014, because Petitioner waived ALJ review of the allegation of noncompliance during that period as alleged by the surveys completed on December 1 and 17, 2014.

2.  The six-month survey cycle began in this case on December 1, 2014.

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3.  The state agency did not certify that Petitioner returned to substantial compliance on December 19, 2014; therefore, the six-month survey cycle did not end on December 19, 2014.

The survey that concluded on December 1, 2014, found that Petitioner was not in substantial compliance with program participation requirements.  Pursuant to section 1819(h)(2)(C) of the Act and 42 C.F.R. § 488.412(a), the Secretary and CMS are granted discretion to continue to pay a SNF for services to Medicare beneficiaries for no more than six months after the initial finding of noncompliance if there is no return to substantial compliance during that six-month period.  The six-month period, commonly referred to in the industry as the survey cycle, generally involves multiple revisit surveys as occurred in this case.  Petitioner does not deny that a survey cycle was triggered on December 1, 2014, with revisit surveys on December 17, 2014 and January 29, 2015.  But Petitioner argues that there was no continuous period of noncompliance of six months that required termination of Petitioner’s provider agreement and participation in Medicare.  Petitioner argues that the survey cycle that began on December 1 ended on December 19, 2014, based on the findings of the state agency.  P. Br. at 5, 8-9.  Petitioner is in error.

DECEMBER 2014 SURVEYS AND ENFORCEMENT REMEDIES

On December 1, 2014, the state agency completed a complaint investigation at Petitioner’s facility.  The state agency found that Petitioner was not in substantial compliance with program participation requirements due to violations of 42 C.F.R. §§ 483.10(b)(11) (Tag F1575) at a scope and severity6 (s/s) of K; 483.20(b)(1) (Tag F272,

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s/s K); 483.20(d)(3) and 483.10(k)(2) (Tag F280, s/s K); 483.20(k)(3)(i) (Tag F281, s/s K); 483.25 (Tag F309, s/s K); 483.25(k) (Tag F328, s/s K); 483.75 (Tag F490, s/s K); 483.75(l)(1) (Tag F514, s/s K); and 483.75(o)(1) (Tag F520, s/s K), all of which were alleged to pose immediate jeopardy to Petitioner’s residents.  All the deficiency citations related to failure to ensure a number of residents received physician ordered bi-level positive airway pressure (Bi-PAP) or continuous positive airway pressure (CPAP) devices and to ensure staff administered the devices correctly.  CMS Ex. 1.  CMS notified Petitioner on December 11, 2014, of the findings and conclusions of the December 1, 2014 survey.  CMS advised Petitioner that it was imposing enforcement remedies, including:  termination of Petitioner’s provider agreement and participation in Medicare effective December 24, 2014, if Petitioner did not abate the immediate jeopardy before that date; a PICMP of $10,000; and a discretionary DPNA, effective December 13, 2014, if Petitioner did not return to substantial compliance by that date.  CMS also advised Petitioner that it was ineligible to conduct a Nurse Aide Training and Competency Evaluation Program (NATCEP).  CMS Ex. 14.

The state agency completed a revisit survey on December 17, 2014, that determined immediate jeopardy was abated on December 11, 2014.  CMS Ex. 3 at 2.  But, the surveyors found during the revisit survey that noncompliance continued under all the same deficiency citations as the December 1 survey but, the deficiencies were cited as posing a risk for more than minimal harm without actual harm or immediate jeopardy.  CMS Ex. 3.  On December 23, 2014, CMS issued an amended notice of a change in remedies to Petitioner.  CMS advised Petitioner of the results of the December 17, 2014 revisit survey, including the conclusions that immediate jeopardy was abated on December 11, 2014, but noncompliance continued.  CMS advised Petitioner that:  the $10,000 PICMP was unchanged; a per day CMP of $150 was imposed effective December 11, 2014, that continued until Petitioner returned to substantial compliance;

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the DPNA that began on December 13, 2014, continued; and Petitioner was ineligible to be approved to conduct a NATCEP.  CMS Ex. 15.  Neither the December 11 nor the December 23 notice advised Petitioner that mandatory termination of its provider agreement and Medicare participation was required after six months of not being in substantial compliance.  I conclude that Petitioner was not prejudiced by the fact the notices did not mention mandatory termination after six months of noncompliance, as Petitioner is on notice by virtue of publication of that requirement in section 1819(h)(2)(C) of the Act and 42 C.F.R. § 488.412(a).  A second revisit survey on January 29, 2015, found that Petitioner had corrected all deficiencies cited by the December 1 and 17, 2014 surveys as of December 19, 2014.  CMS Ex. 7.

Petitioner cites the Post-Certification Revisit Report completed by state agency surveyors dated January 28, 2015 (CMS Ex. 7), as evidence that the state agency found Petitioner returned to substantial compliance on December 19, 2014.  Petitioner misrepresents the evidence however.  The instructions on the face of the form clearly indicate that it is used to show that deficiencies cited by a prior survey have been corrected and the date of correction.  The form is not a certification of compliance within the meaning of 42 C.F.R. § 488.330, as it does not show any decision by the state agency or CMS that the Petitioner returned to substantial compliance as of December 19, 2014.  In fact, Petitioner cannot deny that during the revisit survey completed on January 29, 2015, which determined Petitioner corrected the deficiencies from the December 1 and 17, 2014 surveys, the state agency surveyors alleged that Petitioner was noncompliant under Tag F166 as early as October 2014.  CMS Ex. 6 at 1-3.  Thus, the evidence supports my conclusion that the state agency did not conclude that Petitioner returned to substantial compliance on December 19, 2014; rather, the state agency only found that Petitioner had corrected the deficiency citations from the December 1 and 17, 2014 surveys.

As already noted, Petitioner waived ALJ review of the December 2014 surveys, related enforcement remedies, and the determination that Petitioner corrected those deficiencies as of December 19, 2014.  CMS has offered no evidence that CMS rejected Petitioner’s election under 42 C.F.R. § 488.436.  Therefore, there is no dispute that Petitioner was first found not in substantial compliance by the survey that ended on December 1, 2014, and that triggered that six-month survey cycle.  Contrary to Petitioner’s arguments, the state agency did not certify on January 28, 2015, that Petitioner returned to substantial compliance on December 19, 2014.  Rather, the state agency cited a deficiency that arose in October 2014, which is consistent with the state agency not certifying that Petitioner returned to substantial compliance after December 1, 2014.7

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4.  Petitioner waived review of the allegations of noncompliance of the March 20, 2015 survey, which alleged noncompliance beginning prior to December 19, 2014.

5.  Petitioner has by failure to defend the allegations of deficiencies from the March 20, 2015 survey, waived arguments that it was in substantial compliance at any point during the period December 1, 2014 through at least March 18, 2015.

6.  There is a basis for the imposition of enforcement remedies from December 19, 2014 through at least March 18, 2015.

MARCH 2015 SURVEYS AND ENFORCEMENT REMEDIES

On March 4, 2015, the revisit survey and a complaint investigation were completed.  CMS Ex. 8.  The state agency again cited Petitioner for violation of 42 C.F.R. § 483.10(f)(2) (Tag F166) based on the example of Resident 8 from October 2014, and changed the scope and severity to E from D as it was cited by the survey that ended on January 29, 2015.  The SOD states that the citation and increased scope and severity was

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based on Petitioner’s failure to implement its approved plan of correction for the deficiency cited by the survey that ended on January 29, 2015.  CMS Ex. 8 at 1-2.  The surveyors also cited Petitioner for violations of 42 C.F.R. § 483.13(c) (Tag F224, s/s G); 483.13(c) (Tag F226, s/s D); 483.15(a) (F241, s/s G); 483.25(a)(3) (Tag F312, s/s G); 483.30(e) (Tag F356, s/s F); 483.65 (Tag F441, s/s D); 483.75 (Tag F490, s/s G); and 483.75(o)(1) (Tag F520, s/s G), all of which are based on examples from the period of January 2015 to the end of the survey on March 4, 2015.  CMS Ex. 8.

On March 13, 2015, CMS notified Petitioner that the revisit and complaint survey completed on March 4, 2015, determined that Petitioner had not returned to substantial compliance.  CMS reminded Petitioner that mandatory termination would occur on June 1, 2015, if Petitioner did not return to substantial compliance before that date.  CMS reminded Petitioner of the $10,000 PICMP and the $150 per day CMP from December 11 through 18, 2014, both of which were subject to Petitioner’s waiver of ALJ review and the 35 percent reduction of the CMP.  CMS advised Petitioner that the CMP of $200 per day was effective December 19, 2014 through January 25, 2015.  CMS also advised Petitioner that the CMP increased to $1200 per day, effective January 26, 2015, and it would continue at that rate until Petitioner returned to substantial compliance, the CMP rate was further revised by CMS, or Petitioner’s provider agreement was terminated.  CMS advised Petitioner that the DPNA remained in effect.  CMS Ex. 9.

On March 20, 2015, Petitioner’s annual survey and a complaint investigation were completed.  CMS Ex. 10.  The state agency determined that Petitioner remained out of substantial compliance with program participation requirements due to the following regulatory violations:  42 C.F.R. §§ 483.10(b)(11) (Tag F157, s/s D); 483.13(c) (Tag F224, s/s G); 483.15(a) (Tag F241, s/s G); 483.20(g)-(j) (Tag F278, s/s D); 483.20(d) (Tag F279, s/s D); 483.20(k)(3)(i) (Tag F281, s/s D); 483.25 (Tag F309, s/s D); 483.25(a)(3) (Tag F312, s/s G); 483.25(c) (Tag F314, s/s G) (the allegation of the SOD is this deficiency commenced in November 2014 (CMS Ex. 10 at 27-29)); 483.25(d) (Tag F315, s/s F); 483.25(h) (Tag F323, s/s D); 483.25(i) (Tag F325, s/s G) (the allegation of the SOD is this deficiency commenced in October and November 2014 (CMS Ex. 10 at 33-36)); 483.25(l) (Tag F329, s/s D) (the allegation of the SOD is the deficiency commenced in August and September 2014 (CMS Ex. 10 at 38-39)); 483.55(b) (Tag F412, s/s D) (the allegation of the SOD is that the deficiency commenced upon admission of the resident in April 2014 (CMS Ex. 10 at 40)); 483.60(c) (Tag F428, s/s D) (the allegation of the SOD is that the deficiency commenced in November 2014 (CMS Ex. 10 at 41-43)); 483.75 (Tag F490, s/s G); 483.75(e)(8) (Tag F497, s/s F); 483.75(f) (Tag F498, s/s F); 483.75(i) (Tag F501, s/s F); 483.75(j)(1) (Tag F502, s/s D) (the SOD alleges that the deficiency commenced in November 2014 (CMS Ex. 10 at 48-50)); 483.75(j)(2)(ii) (Tag F505, s/s D); 483.75(l)(1) (Tag F514, s/s D); and 483.75(o)(1) (Tag F520, s/s G) (the SOD alleges noncompliance commenced in December 2014 (CMS Ex. 10 at 54-55)).  CMS Ex. 10.

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CMS notified Petitioner by letter dated March 31, 2015, that the March 20, 2015 survey determined Petitioner had not returned to substantial compliance.  CMS advised Petitioner that the remedies imposed in the previous notice letters remained in effect, but the accruing CMP was revised from $1200 per day effective January 26, 2015 through February 24, 2015, to $2050 per day beginning February 25, 2015, and continuing until Petitioner returned to substantial compliance, the CMP rate was further revised, or its provider agreement was terminated.  CMS again advised Petitioner that termination would occur on June 1, 2015.  The DPNA remained in effect.  CMS Ex. 17.

Petitioner elected not to present evidence and, thus, does not contest the deficiency citations from the March 4 and 20, 2015 surveys or that they are a basis for the imposition of reasonable enforcement remedies.  P. Br. at 5.  Petitioner also states that it accepts the CMP for the period March 20, 2015 through May 18, 2015, the latter date being the date Petitioner asserts is the date it corrected all deficiencies from the March surveys.  P. Br. at 6.  The SOD for the survey completed on March 4, 2015, alleged multiple deficiencies, most alleged to have begun in early 2015.  However, the state agency again cited Petitioner for violation of 42 C.F.R. § 483.10(f)(2) (Tag F166) based on the example of Resident 8 from October 2014, changing the scope and severity to E from D as it was cited by the survey that ended on January 29, 2015.  The SOD states that the citation and increased scope and severity were based on Petitioner’s failure to implement its approved plan of correction for the deficiency cited by the survey that ended on January 29, 2015.  CMS Ex. 8 at 1-2.  Petitioner’s failure to present evidence and contest the March 4, 2015 survey amounts to a waiver of any challenge to the surveyors’ findings that Petitioner failed to implement its plan of correction for the deficiency cited under Tag F166 by the January 29, 2015 survey, and the conclusion that Petitioner was not in substantial compliance under Tag F166 before December 1, 2014.  Accordingly, I conclude that Petitioner was continuously not in substantial compliance with program participation requirements through March 4, 2015.

Petitioner also did not contest the allegations of the annual survey and a complaint investigation completed on March 20, 2015.  The state agency determined that Petitioner remained out of substantial compliance with program participation requirements due to multiple regulatory violations that posed risk for more than minimal harm.  The SOD alleges a violation of 42 C.F.R. § 483.25(c) (Tag F314, s/s G) and alleges this deficiency commenced in November 2014.  CMS Ex. 10 at 27-29.  The SOD alleges a violation of 42 C.F.R. § 483.25(i) (Tag F325) (s/s G) and that this deficiency commenced in October and November 2014.  CMS Ex. 10 at 33-36.  The SOD alleges a violation of 42 C.F.R. § 483.25(l) (Tag F329) (s/s D) and that the deficiency commenced in August and September 2014.  CMS Ex. 10 at 38-39.  The SOD alleges a violation of 42 C.F.R. § 483.55(b) (Tag F412) (s/s D) and that the deficiency commenced upon admission of the resident involved in April 2014.  CMS Ex. 10 at 40.  The SOD alleges a violation of 42 C.F.R. § 483.60(c) (Tag F428) (s/s D) and that the deficiency commenced in November 2014 (CMS Ex. 10 at 41-43)).  The SOD alleges a violation of 42 C.F.R. § 483.75(j)(1)

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(Tag F502) (s/s D) and that the deficiency commenced in November 2014.  CMS Ex. 10 at 48-50.  The SOD alleges a violation of 42 C.F.R. § 483.75(o)(1) (Tag F520) (s/s G) and that the deficiency commenced in December 2014.  CMS Ex. 10 at 54-55.

The SODs for the March surveys, the documentary evidence, and the testimonial evidence presented by CMS show it more likely than not that Petitioner was not in substantial compliance as alleged by the deficiencies cited in the SODs.  Petitioner did not present evidence and failed to meet its burden to show by a preponderance of the evidence that it was in substantial compliance or had an affirmative defense.  Petitioner affirmatively waived review as to the allegations of the SODs that deficiencies commenced before December 1, 2014, and the alleged scope and severity of the deficiency citations.  Accordingly, I conclude that Petitioner was not in substantial compliance with program participation requirements as alleged by the March surveys from not later than December 1, 2014 through at least March 20, 2015.

I have concluded that Petitioner waived review of the allegations of noncompliance from the March surveys and, thereby, has effectively conceded continuing noncompliance from prior to December 1, 2014 through at least May 18, 2015.  Therefore, I could limit my review to the allegations from the May 22, 2015 survey for purposes of determining whether Petitioner returned to substantial compliance prior to termination on June 1, 2015, or in Petitioner’s parlance, whether Petitioner was in substantial compliance on June 1, 2015.  However, for purpose of assessing the reasonableness of the remedies, it is necessary for me to consider the deficiency allegations from the survey completed on January 29, 2015, which Petitioner has not conceded.

Counsel for CMS created one additional issue that must be resolved prior to moving on to the deficiency citations from the January and May surveys.  On June 26, 2015, 25 days after termination of Petitioner’s Medicare provider agreement and participation, counsel for CMS notified Petitioner’s counsel that CMS was asserting two additional deficiencies based on the factual allegations of the survey that ended on May 22, 2015, specifically noncompliance with 42 C.F.R. §§ 483.13(c) (Tag F225, s/s D) and 483.20(l)(3) (Tag F284, s/s J).  CMS Ex. 44; P. Ex. 22.  In support of its position that it was permissible for counsel to add the deficiency citations, CMS cited Azalea Court, DAB No. 2352 at 12 (2010), aff’d, Azalea Court v. United States Dep’t of Health & Human Servs., 482 Fed. Appx. 460 (11th Cir. 2012).  During the hearing, CMS counsel admitted that a revised SOD was not issued to Petitioner to give notice that two deficiency citations were added for Petitioner to defend.  Tr. 38-43.  Under the regulations, CMS must comply with specific notice requirements when it intends to impose an enforcement remedy and must give notice of its initial determination to impose a remedy.  Tr. 39-40; 42 C.F.R. § 488.402(f); 42 C.F.R. § 498.20(a)(1).  Whether CMS provided Petitioner required notice even without issuance of an initial determination by CMS or whether the failure of CMS to give notice amounted to a deprivation of Petitioner’s right to due process are not issues I need to resolve in this case.  I conclude that there is a proper basis for the

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imposition of the enforcement remedies imposed in this case and the termination of Petitioner’s Medicare participation and provider agreement.  Therefore, consideration of the additional allegations of noncompliance by CMS is simply unnecessary.  Out of an abundance of caution to avoid any potential violation of Petitioner’s due process rights and in the interest of judicial economy, I decline to consider the two additional allegations of noncompliance urged by counsel for CMS.  I express no opinion regarding whether the action of CMS posed a potential violation of Petitioner’s right to due process under the Act or regulations.  I also express no opinion on whether the Board by its opinion in Azalea Court, intended to permit or encourage such deviations from due process procedures established by the Secretary and CMS by regulation.

JANUARY 29, 2015 SURVEY AND RELATED ENFORCEMENT REMEDIES

On January 29, 2015, the second revisit survey and complaint investigation were completed.  The following citations are alleged in the SOD for the January 29, 2015 survey:  42 C.F.R. § 483.10(f)(2) (Tag F166, s/s D); 42 C.F.R. § 483.60(b), (d), (e) (Tag F431, s/s D); and 42 C.F.R. § 483.65 (Tag F441, s/s D).  CMS Ex. 6.

It is important to recall that Petitioner is not contesting the deficiency citations from the first revisit survey conducted on December 17, 2014, which found noncompliance with the conditions of participation under the same Tags as cited by the December 1, 2014 survey but not at the level of immediate jeopardy.  The second revisit survey found all those deficiencies corrected as of December 19, 2014.  CMS Ex. 7.  However, the second revisit survey found Petitioner not in substantial compliance based on three regulatory violations that amounted to noncompliance.  The state agency cited Petitioner for violations of 42 C.F.R. §§ 483.10(f)(2) (Tag F166, s/s D); 483.60(b), (d), (e) (Tag F431, s/s D); and 483.65 (Tag F441, s/s D).  CMS Ex. 6.  The SOD for the survey concluded on January 29, 2015, alleges that noncompliance began:  under Tag F166 – on about October 21, 2014, when Petitioner failed to promptly resolve a grievance made  by a family member (CMS Ex. 6 at 1); under Tag F431 – on January 26, 2015 (CMS Ex. 6 at 4-5); and under Tag F441 – on January 26, 2015 (CMS Ex. 6 at 6).  It is important to note for purposes of understanding Petitioner’s arguments that, but for the alleged noncompliance under Tag F166 that began on about October 24, 2014, Petitioner’s position is that it was in substantial compliance from December 19, 2014 to January 26, 2015, as there were no other allegations of noncompliance during that period.

CMS notified Petitioner by letter dated February 11, 2015, that the revisit and complaint survey completed on January 29, 2015, found that Petitioner continued not to be in substantial compliance.  CMS advised Petitioner that mandatory termination would occur effective June 1, 2015, if Petitioner did not return to substantial compliance before that date.  CMS reminded Petitioner of the $10,000 PICMP based on the December 1, 2014 survey.  CMS also advised Petitioner that the $150 per day CMP was in effect from December 11, 2014 through December 18, 2014, and that the CMP was increased to $200

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per day beginning December 19, 2014, and continuing until Petitioner achieved substantial compliance or further action by CMS.  CMS also stated that the DPNA that began December 13, 2014, continued.  CMS also reminded Petitioner it was ineligible to be approved to conduct a NATCEP.  CMS Ex. 16.

7.  Petitioner violated 42 C.F.R. § 483.10(f)(2) (Tag F166) and the violation posed a risk for more than minimal harm as alleged by the survey completed on January 29, 2015.

a.  Facts

The allegations cited by the surveyors under 42 C.F.R. § 483.10(f)(2), Tag F166, focus on the manner in which Petitioner handled a grievance submitted by Resident 8’s family related to Resident 8’s care.

Resident 8 was admitted to Petitioner’s facility on October 14, 2014.  She had multiple diagnoses, which included rehabilitation after a left tibia/fibula fracture, septic shock, acidosis, acute kidney failure, Type II diabetes mellitus, hypertension, non-Alzheimer’s dementia, and chronic obstructive pulmonary disease.  CMS Ex. 49 at 118-19, 121, 198-99.  At the time of admission, Resident 8 did not have a Foley catheter (urinary tract catheter) in place nor did she have a physician’s order for one.  CMS Ex. 49 at 127, 197.  Her minimum data set (MDS), with an assessment reference date of October 21, 2014, indicated that she was cognitively intact and required extensive assistance with her activities of daily living and mobility.  CMS Ex. 49 at 187, 195-196.  On November 4, 2014, Resident 8 went to a medical appointment and was admitted to the hospital.  She did not return to Petitioner’s facility.  CMS Ex. 49 at 117, 179.

The record contains a Complaint/Grievance Report, which documents that, sometime on or before October 19, 2014, Resident 8 and her daughter requested a catheter for Resident 8 because she was “wet.”  The report states that an order for a catheter was obtained from the on-call nurse practitioner and that Resident 8 would be re-evaluated on October 20, 2014, when the regular nurse practitioner or physician was available to assess her.  The report states that an attempt to place the catheter during the evening shift on October 19 to 20, 2014,was unsuccessful.  It was then determined that there was no need or diagnosis that required a catheter documented in the resident’s record.  The report indicates that the nurse practitioner was called back and requested to do further evaluation of the need for the catheter.  P. Ex. 19 at 1.  The report also documents that, on October 21, 2014, Resident 8’s family member and/or daughter complained to the Social Service Director that Resident 8 was supposed to have a catheter, but she did not, and that her diapers were left on all night.  P. Ex. 19 at 1.  The “Resolution” section of the Complaint/Grievance Report was completed on October 27, 2014, to show that the complaint/grievance was resolved because the family had spoken with “Ben.”  P. Ex. 19 at 1; Tr. 386.  I infer that the name “Ben” on the form refers to Petitioner’s administrator

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at the time, which is consistent with the testimony of Surveyor Trent at hearing.  Tr. 385-86.

Clinical records for Resident 8 obtained by the surveyors include an order dated October 19, 2014, to use a catheter until the resident’s nurse practitioner or physician followed up with a new order on October 20, 2014.  CMS Ex. 49 (corrected) at 161.  On October 23, 2014, the resident’s physician, Dr. Vollmer, ordered a Foley catheter for urine retention.  CMS Ex. 49 (corrected) at 300.  According to a nurse’s note dated October 23, 2014, Resident 8 received the Foley catheter and tolerated the procedure well.  CMS Ex. 49 (corrected) at 80.  A nurse’s note dated October 24, 2014, states that the Foley catheter is in place, draining, and that Resident 8 had no complaints and was not in any distress.  CMS Ex. 49 (corrected) at 82.  A nurse’s note dated October 27, 2014, indicates that the Foley catheter had been removed.  CMS Ex. 49 (corrected) at 88.

According to CMS, Resident 8’s daughter filed a complaint with CMS on December 4, 2014, regarding the manner in which Petitioner handled the October 2014 grievance.  CMS Br. at 2.  The filing of the complaint happened after the December 1, 2014 survey ended, and several weeks after Resident 8 left the facility.  The complaint did not result in a deficiency citation by the revisit survey completed on December 17, 2014.  I note, however, that the SOD for the revisit survey shows that the survey team focused upon the noncompliance previously cited by the survey completed on December 1, 2014, and whether Petitioner had abated immediate jeopardy related to that noncompliance.  CMS Ex. 3 at 1-2.

The surveyors allege that, in handling the grievance, Petitioner failed to follow its policy, titled “Investigating a Resident Grievance or Complaint,” effective December 2010.  This policy directed appropriate facility staff to investigate all grievances and complaints and record them on the grievance/complaint log.  Under the policy, the Administrator was required to review the grievance/complaint investigation report “within 3 working days of the receipt of the grievance or complaint.”  The policy further required that staff would inform the resident or person acting on behalf of the resident of the investigation findings, as well as any corrective actions.  CMS Ex. 6 at 2; P. Ex. 20 at 20.

Surveyor Trent testified that he participated in the revisit survey and complaint investigation at Petitioner’s facility on January 29, 2015.  He testified that he investigated the complaint that was made on December 4, 2014, by the resident’s daughter, related to Resident 8 and the grievance her family filed.  Tr. 359-60, 402.  He testified that the Resident Grievance or Complaint Form (P. Ex. 19) indicates that the grievance or complaint was resolved because Petitioner’s administrator at the time spoke with the family.  Surveyor Trent opined that speaking to the administrator is not an adequate resolution.  Tr. 361.  He testified that the deficiency was cited, in part, because there is no evidence that facility staff actually explained why Resident 8 should not have a catheter or the risk associated with a catheter or that staff resolved any misunderstanding the

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family may have had about the resident’s care.  Tr. 364, 384.  Surveyor Trent opined that there was a risk for more than minimal harm because the resident subsequently developed a urinary tract infection.  Tr. 377, 382.

Petitioner’s former Director of Nursing, Lucy James, testified regarding this deficiency citation.  DON James testified that the grievance relating to Resident 8 was brought to her attention after Resident 8 had left the facility.  Tr. 915.  DON James testified that she reviewed Resident 8’s records and that Resident 8 did not have an order for a catheter when she arrived at the facility and she did not have a diagnosis that justified the placement of a catheter at that time.  DON James stated that a catheter placement requires a proper diagnosis because there are risks associated with using a urinary catheter.  DON James testified that Resident 8’s family complained to the ADON that they wanted Resident 8 to have a catheter due to her continued urinary incontinence and they did not want her to be constantly wet.  DON James testified that Resident 8 could not receive a catheter because she did not have an appropriate diagnosis and then a grievance was submitted.  DON James testified that Resident 8’s physician ordered a catheter until he could evaluate her.  But the catheter was subsequently removed because it was not supported by a diagnosis that required a catheter.  Tr. 915-18.  On cross-examination, DON James testified that Resident 8 and her family were concerned because she was frequently wet.  She testified that did not investigate the grievance herself and was unaware whether the results of the investigation were communicated to anyone.  Tr. 971.

b.  Analysis

I conclude that CMS has made a prima facie showing of noncompliance under 42 C.F.R. § 483.10(f)(2) (Tag F166).  I further conclude that Petitioner did not rebut the CMS prima facie showing or establish an affirmative defense.

The evidence shows that the grievance filed by the family had two components:

(1) Resident 8 suffered from urinary incontinence, diapers were used and left on all night, and she was frequently wet which caused concern for the resident and her family; and

(2) Resident 8 and family members requested that a urinary catheter be used but it was not.

The regulation provides that a resident has the right to prompt efforts by the facility to resolve grievances.  42 C.F.R. § 483.10(f)(2).  Petitioner’s Complaint/Grievance Report shows that after receiving the request for a catheter from Resident 8 and her daughter, staff obtained an order for a catheter from the on-call nurse practitioner.  Placement was unsuccessful during the evening shift on October 19 to 20, 2014.

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The Complaint/Grievance form suggests that the grievance was made to the Social Service Director on October 21, 2014.  However, the form shows that the grievance was actually made, probably orally, on or about October 19, 2014, which is when the order for catheterization was obtained from the on-call nurse practitioner and insertion was attempted but failed.  It was not until October 23, 2014, that Petitioner was able to get an order from the resident’s physician for a catheter and it was placed the same day.  A reasonable reading of the grievance or complaint is that Resident 8 was being left for extended periods in wet diapers and the resident and the family wanted her to have a catheter so she would not be wet all the time.  It took nearly four days for the grievance to be addressed by the resident’s physician who ordered the catheter.  I do not accept that prompt action occurred.  On October 27, 2014, it was ordered that the catheter be removed.  There is no evidence that Petitioner investigated or addressed the part of the grievance that the resident was being left in wet diapers for extended periods when she suffered from incontinence.  There is no evidence that Petitioner’s staff investigated whether Resident 8 was being regularly checked for a wet diaper, particularly at night.  There is no evidence how the grievance was addressed after October 27, 2014, after the catheter was removed.  Petitioner argues that the evidence shows that the grievance was resolved.  P. Br. at 9-10; P. Reply at 7-8.  But, Petitioner’s argument is not supported by the evidence of record.  The evidence shows that a catheter was placed but subsequently removed.  The evidence does not show that Petitioner addressed:  the resident and family’s complaint that the resident was frequently wet; the risk and benefits associated with placing a catheter to address urinary incontinence; or the need to remove the catheter and how the resident’s incontinence would be addressed without the catheter.

The surveyors alleged that Petitioner’s noncompliance posed a risk for more than minimal harm.  Surveyor Trent testified that the evidence does not show that the family and resident were educated in response to the complaint of the risk for harm associated with using a catheter.  Surveyor Trent also testified that the resident developed a urinary tract infection, but I note, the facility was not cited for actual harm.  Further, there can be no dispute that there is some discomfort associated with wearing a wet diaper for even a brief period and even absent evidence of an increased risk for skin breakdown and infection.  Petitioner has not presented evidence to rebut the surveyors’ opinion that the deficiency posed a risk for more than minimal harm.

Petitioner argues that the grievance had been reviewed in connection with the December 1, 2014 survey and no deficiency was cited.  Petitioner also argued that Petitioner had taken remedial action and the state agency had accepted that the deficiency was

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corrected.  P. Br. at 9-10.  Petitioner cites neither evidence nor legal authority in support of its arguments.8

8.  Petitioner violated 42 C.F.R. § 483.60(b), (d), (e) (Tag F431) and the violation posed a risk for more than minimal harm as alleged by the survey completed on January 29, 2015.

a.  Facts

Under 42 C.F.R. § 483.60(b), (d), (e), Tag F431, the surveyors allege that Petitioner failed to ensure that medications were stored in a secure manner in a medication cart.  According to the SOD, a locked medication cart in the hallway was observed to have a top drawer opened, and, in this unlocked drawer there was an opened 50 ml bottle “labeled insulin (medication used for elevated blood sugars) 10 units/ml.”  CMS Ex. 6 at 4-5.

Surveyor Trent testified briefly regarding this deficiency citation, confirming the facts, and opining that there was a risk for more than minimal harm.  Surveyor Trent was uncertain whether orally ingesting 50 ml of insulin would necessarily cause harm, but he was clear that in his opinion unsecured medications of any type present the risk for more than minimal harm.  Tr. 408-13.

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b.  Analysis

The SOD alleges under Tag F431, a violation of 42 C.F.R. § 483.60(b), (d), and (e).  However, I conclude that only 42 C.F.R. § 483.60(e) is actually applicable in this case.  The regulation requires:

(e) Storage of drugs and biologicals.

(1) In accordance with State and Federal laws, the facility must store all drugs and biologicals in locked compartments under proper temperature controls, and permit only authorized personnel to have access to the keys.

(2) The facility must provide separately locked, permanently affixed compartments for storage of controlled drugs listed in Schedule II of the Comprehensive Drug Abuse Prevention and Control Act of 1976 and other drugs subject to abuse, except when the facility uses single unit package drug distribution systems in which the quantity stored is minimal and a missing dose can be readily detected.

42 C.F.R. § 483.60(e).

It is alleged in the SOD that Petitioner violated the regulation because the surveyors observed a medication cart with an unlocked, open top drawer in a hallway.  The surveyors noted that the unlocked drawer contained an opened 50 ml bottle of insulin.  CMS did not discuss this deficiency in its post-hearing briefs but asserted at hearing that CMS did not intend to waive the deficiency citation.  Tr. 406-07.

Petitioner does not deny the allegations.  But, Petitioner argues that this violation does not rise to the level of noncompliance because there was no risk for more than minimal harm posed.  Petitioner argues that the broken lock on the drawer was fixed promptly, staff received in-service education regarding medication cart maintenance, and no unsecured syringes were found on the premises that might have been used to inject the insulin.  P. Br. at 11; Tr. 921-22.

At the hearing, Surveyor Trent testified that insulin is typically administered subcutaneously via injection.  Tr. 408-09.  Surveyor Trent testified that a situation where a resident could have access to insulin or any medication in an unlocked medication drawer presented the potential for more than minimal harm.  Tr. 408.  Although he stated that he did not find any unsecured needles or syringes on the medication cart or anywhere in Petitioner’s facility, Surveyor Trent testified that it was possible that a resident may use a needle to self-administer insulin.  Tr. 409, 411.  Surveyor Trent acknowledged that

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it was not plausible that a resident might drink insulin from the bottle, but when asked what the effect would be from ingesting insulin, testified that it may result in lowering one’s blood sugar level.  Tr. 409, 411-12.  Surveyor Trent testified that he considered unsecured medications in general to pose a potential for harm in that they could be ingested orally.  Tr. 412.  I construe Surveyor Trent’s opinion to be that, regardless of what the unlocked medicine drawer contained, the risk for more than minimal harm is posed by any unlocked or unsecured medicine cabinet or container accessible to residents.

Petitioner’s DON, Lucy James, testified that it was not plausible for a resident to drink a bottle of insulin.  Tr. 921.  When asked what corrective actions Petitioner took in response to this citation, DON James testified that, among other things, staff removed all the orally-administered medications from the unsecured drawer and put them in drawers that would lock.  Tr. 921.

I conclude that CMS has made a prima facie showing of a violation of 42 C.F.R. § 483.60(e)(1), which amounted to noncompliance.  It is undisputed that there was an unattended and unsecured medication cart in the hallway, which had an unlocked, open drawer.  Regardless of what drugs were in the drawer, whether insulin or another drug, an unsecured medication cart created a potentially dangerous situation for Petitioner’s residents.  The weight of the evidence supports a conclusion that if a resident gained access to drugs from a medication cart and accidentally ingested them, there is a potential for more than minimal harm.  Accordingly, I conclude that Petitioner violated 42 C.F.R. § 483.60(e)(1) and the violation posed a risk for more than minimal harm.

9.  Petitioner violated 42 C.F.R. § 483.65 (Tag F441) and the violation posed a risk for more than minimal harm as alleged by the survey completed on January 29, 2015.

a.  Facts

Under 42 C.F.R. § 483.65, Tag 441, the surveyors allege that, in one of the resident’s rooms, they observed “a large amount of dried stool on the floor and smeared up the wall approximately 3 feet.”  CMS Ex. 6 at 6.  According to the SOD, the CNA who was with the surveyors acknowledged the dried stool and stated that it should already have been cleaned up.  The surveyors allege that Petitioner’s policy on cleaning and disinfecting rooms, revised August 2013, stated that “[h]ousekeeping surfaces (e.g. floors, tabletops) will be cleaned on regular basis . . . when these surfaces are visibly soiled . . . . Walls, blinds, and window curtains in resident’s area will be cleaned when these surfaces are visibly contaminated or soiled.”  CMS Ex. 6 at 7.

With respect to this deficiency, Petitioner’s DON, Lucy James, testified that the resident of the room in question was mentally-impaired and would have bowel movements in a

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corner or against the wall.  Tr. 923.  Ms. James testified that the resident had just had a bowel movement when the surveyors came through the area, and that the CNAs were in the process of getting the supplies to clean it up.  According to Ms. James, the feces had been on the wall for “ten, fifteen minutes.”  Tr. 923-24.

b.  Analysis

Petitioner is required to “establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of disease and infection.”  42 C.F.R. § 483.65.

CMS offered no evidence at the hearing regarding this deficiency, nor did it address this deficiency in either its post-hearing brief or post-hearing reply brief.9 CMS apparently seeks to rely upon the allegations in the SOD to make its prima facie case of a deficiency.  See Guardian Health Care Ctr., DAB No. 1943 at 15 (2004) (holding that a prima facie showing of noncompliance may be based on the SOD, if the factual findings and allegations it contains are specific, undisputed, and not inherently unreliable).

Petitioner has not disputed the allegations that a large amount of dried feces was observed on the floor and wall of a resident’s room.  Petitioner, however, attempts to minimize the situation, merely describing it as “unpleasant” and stating that it did not pose any potential for harm to residents.  P. Br. at 12.  Petitioner argues that CMS offered no evidence of any “governing standard” or how it was violated by Petitioner’s staff, and also failed to show that any of Petitioner’s residents were “exposed to any hazard.”  Petitioner asserts that a CNA was preparing to clean up the room when the surveyor made the observation, and that no other incidents were cited.  P. Br. at 12.

I conclude that, based on these facts, CMS has made a prima facie showing that Petitioner violated 42 C.F.R. § 483.65 and that the violation posed a risk for more than minimal harm.  I further conclude that Petitioner failed to rebut CMS’s prima facie showing as to this citation or to establish any affirmative defense.

Although Petitioner complains that CMS offered no evidence of any “governing standard,” the surveyors alleged in the SOD that Petitioner had an infection control policy

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titled “Cleaning and Disinfecting Resident’s Rooms,” which was revised August 2013.10 Petitioner does not deny that its staff was required to follow this policy at the time of the January 2015 survey.  As stated in the SOD, Petitioner’s policy required staff to clean all housekeeping surfaces (e.g. floors, tabletops) on a “regular basis, when spills occur, and when these surfaces [were] visibly soiled.”  The policy also required staff to clean “walls, blinds, and window curtains in resident’s area” when they were “visibly contaminated or soiled.”  CMS Ex. 6 at 7.

Although the evidence shows Petitioner may have satisfied the regulatory requirement that it have an infection control policy, its staff obviously failed to comply with its policy when they failed to clean the resident’s room’s floor and wall, which were visibly contaminated by dried feces.  Petitioner thus failed to ensure that its infection control program was adequately implemented in order to control and prevent infections in the facility, in violation of 42 C.F.R. § 483.65(a)(1).

Petitioner argues that none of its residents were exposed to any hazards associated with the contaminated floor and wall.  I note that the surveyors cited this deficiency at a scope and severity level of D, which means that there was no actual harm or immediate jeopardy but a risk for more than minimal harm.  CMS Ex. 6 at 5.  I conclude that Petitioner’s staff’s failure to promptly clean the dried feces from the resident’s room’s floor and wall placed residents and staff at risk for more than minimal harm.  Although DON James claimed that the CNAs were in the process of cleaning it up, and that the feces had been on the wall for “ten, fifteen minutes,” I give little weight to her testimony in the absence of any contemporaneous evidence supporting her assertions.  Regardless of how long the feces had been on the floor and the wall, Petitioner presented no evidence that dried feces do not pose a risk for more than minimal harm because they do not contain pathogens which could be transmitted to others in the facility.  Indeed, if someone in the room, either another resident or a staff person, was not paying attention, it would be possible for his or her shoes, clothing, or even skin to come into contact and be contaminated with the dried feces on the floor and wall, which could then lead to the unknowing transfer of fecal matter to other surfaces, staff members, and residents.

I conclude that CMS has made a prima facie showing of a violation of 42 C.F.R. § 483.65 which Petitioner has not rebutted.  The evidence shows that Petitioner clearly failed to follow infection control practices to provide a safe and sanitary environment and prevent the transmission of disease and infection, in violation of 42 C.F.R. § 483.65.

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10.  Petitioner violated 42 C.F.R. § 483.12(a)(2) (Tag F201) and the violation posed a risk for more than minimal harm as alleged by the survey completed on May 22, 2015.

11.  Petitioner violated 42 C.F.R. § 483.12(a)(3) (Tag F202) and the violation posed a risk for more than minimal harm as alleged by the survey completed on May 22, 2015.

12.  Petitioner violated 42 C.F.R. § 483.12(a)(4)-(6) (Tag F203) and the violation posed a risk for more than minimal harm as alleged by the survey completed on May 22, 2015.

13.  Petitioner violated 42 C.F.R. § 483.12(a)(7) (Tag F204) and the violation posed a risk for more than minimal harm as alleged by the survey completed on May 22, 2015.

14.  Petitioner violated 42 C.F.R. § 483.75 (Tag F490) and the violation posed a risk for more than minimal harm as alleged by the survey completed on May 22, 2015.

MAY 22, 2015 SURVEY AND ENFORCEMENT REMEDIES

The fourth revisit survey and complaint investigation completed on May 22, 2015, is at issue before me.  The state agency found that Petitioner remained out of substantial compliance with participation requirements and cited deficiencies that posed immediate jeopardy.  CMS Ex. 13 at 1-2.  The SOD alleges the following violations that amount to noncompliance:  42 C.F.R. §§ 483.12(a)(2) (Tag F201, s/s J); 483.12(a)(3) (Tag F202, s/s J); 483.12(a)(4)-(6) (Tag F203, s/s J); 483.12(a)(7) (Tag F204, s/s J); 483.12(b)(1)-(2) (Tag F205, s/s E); 483.13(c) (Tag F224, s/s K); 483.13(c) (Tag F226, s/s D); 483.15(a) (Tag F241, s/s G); 483.15(e)(1) (Tag F246, s/s D); 483.15(g)(1) (Tag F250, s/s J); 483.25(a)(3) (Tag F312, s/s K); 483.25(f)(1) (Tag F319, s/s D); 483.30(a) (Tag F353, s/s K); 483.30(e) (Tag F356, s/s F); 483.75 (Tag F490, s/s K); 483.75(d)(1)-(2) (Tag F493, s/s K); 483.75(i) (Tag F501, s/s K); 483.75(o)(1) (Tag F520, s/s K).  CMS Ex. 13.

a.  Facts

The alleged deficiencies from the May 22, 2015 survey which I review and discuss in this decision arise from the April 22, 2015 discharge of Resident 102 from Petitioner’s facility.  Resident 102 was not cited as an example by the surveyors under Tags F205, F224, F226, F241, F246, F312, F353, or F356.  However, the deficiency citations involving Resident 102 show continuing noncompliance through June 1, 2015, the date of termination of Petitioner’s Medicare provider agreement and Medicare participation and

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provide an ample basis for the CMP and continuing DPNA; I conclude it is not necessary to discuss all 18 deficiency citations from the May 22, 2015 survey.

The findings of fact set forth here are based on Resident 102’s clinical records and testimony received at the hearing.

Resident 102 was admitted to Petitioner on October 23, 2012.  CMS Ex. 24 at 5.  He was 66 years old at admission.  CMS Ex. 24 at 5.  Among other diagnoses, he suffered from cellulitis, an open leg wound, methicillin-resistant staphylococcus aureus (MRSA), edema, muscle weakness, history of fall, joint pain, depressive disorder, and bi-polar disorder.  CMS Ex. 24 at 6, 8, 10, 86.

Resident 102’s MDS, with an assessment reference date of January 26, 2015, indicated, among other things, that he was not cognitively impaired, had no signs of a change in his mental status, and had not exhibited any physical or verbal behavioral symptoms, such as hitting or cursing others.  CMS Ex. 24 at 406, 407, 410.  According to the MDS, Resident 102 required extensive assistance with bed mobility, transfers, toilet use, and personal hygiene.  CMS Ex. 24 at 411.  Resident 102 required limited assistance with ambulation with a walker, dressing, and eating.  CMS Ex. 24 at 411, 412.  He required physical help with bathing and was occasionally incontinent of bowel and bladder.  CMS Ex. 24 at 412, 413.  In noting Resident 102’s active diagnoses on the MDS, staff indicated that Resident 102 suffered from “[d]epression (other than bipolar).”  CMS Ex. 24 at 415.  His medications included an antipsychotic and an antidepressant.  CMS Ex. 24 at 423.  The MDS indicated that, as of January 26, 2015, there was no active planning in place to discharge Resident 102 to the community.  CMS Ex. 24 at 428.  In response to the question, “Do you want to talk to someone about the possibility of leaving this facility and returning to live and receive services in the community?” Resident 102’s response was “No.”  CMS Ex. 24 at 429.

On April 8, 2015, a hospitality aide who was making the rounds at Petitioner’s facility learned that several weeks prior, Resident 102 had engaged in a verbal altercation with two other male residents, Residents 23 and 72.  Resident 102 had allegedly been verbally offensive toward the residents, hit his back scratcher on the dining room table, and threatened them.  No one was injured, and there were no other witnesses to this incident.  Petitioner’s staff investigated the incident as possible resident-to-resident abuse and identified Resident 102 as the alleged perpetrator.  CMS Ex. 24 at 82-85, 86.  Staff interviewed all three residents, and Petitioner’s internal report dated April 10, 2015, states that there had been no further issues and the residents now avoided each other.  CMS Ex. 24 at 83-84.  Resident 102, however, was placed on one-on-one supervision so that he could be monitored for any type of behaviors or aggression.  CMS Ex. 24 at 84, 87, 141, 176-178.  According to Petitioner’s report, Resident 102 was evaluated by psychiatric services, which found that he was not a threat to himself or others.  CMS Ex. 24 at 84.  Petitioner’s staff updated Resident 102’s care plan on April 8, 2015, noting that

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he was at risk for socially inappropriate and verbally abusive behaviors.  CMS Ex. 24 at 460.

The record shows that, on April 1, 2015, Resident 102 had his weekly session with his psychologist, Dr. John Gurski.  CMS Ex. 24 at 168.  In the progress note for this visit, Dr. Gurski noted, among other things, that Resident 102 “[d]emonstrate[d] good therapeutic rapport,” was anxious, and exhibited no behavioral disturbances, including socially or sexually inappropriate behavior.  CMS Ex. 24 at 168.  A focus of the session was Resident 102’s grief over the death of his companion.  Dr. Gurski noted that Resident 102 “has made friends with female resident [Resident 57] . . . and wanted to discuss his role in the relationship and how it relates to loss of his partner last year.”  CMS Ex. 24 at 168.

On or about April 9, 2015, the female resident, Resident 57, reported to staff that Resident 102 had kissed her and touched her breast without her consent.  CMS Ex. 24 at 101, 106, 113, 115-116, 141, 176; CMS Ex. 25 at 37-38, 39, 54-55, 69-70.  There were no witnesses to this incident.  Petitioner’s staff conducted an investigation and reported the incident to Resident 102’s nephew, the state agency, and the residents’ physicians.  CMS Ex. 24 at 94-97, 101-19, 108.

Petitioner’s internal report of the investigation noted that Resident 102 and Resident 57 had developed a friendship and that they spent time together in Resident 57’s room “listening to music and talking.”  CMS Ex. 24 at 111, 116.  According to the report, Resident 102 admitted that he had kissed Resident 57 but stated that it was consensual.  The report stated that Resident 102 volunteered for a psychiatric evaluation at the hospital and he was placed on one-on-one monitoring.  CMS Ex. 24 at 108, 109, 112.  Resident 102 was sent to the hospital for the evaluation that night and he returned the next morning.  CMS Ex. 24 at 101-02, 142, 176, 178, 460.  He was prohibited from having any further contact with Resident 57.  CMS Ex. 24 at 101-02.  According to Petitioner’s staff, Resident 102 enjoyed the one-on-one monitoring and did not exhibit any inappropriate behavior during the period he was under supervision.  CMS Ex. 24 at 143, 144, 145, 146, 174, 177, 182.  Resident 102 remained on one-on-one monitoring until he was discharged on April 22, 2015.  CMS Ex. 24 at 102, 141-46, 172-74, 176-78, 327-371.

On April 10, 2015, Petitioner’s staff prepared a discharge care plan for Resident 102, and noted a target date of July 10, 2015.  CMS Ex. 24 at 489-90.  On the plan, staff noted that a “resident, relative, or representative” had expressed a wish for discharge to another long-term care facility.  Staff noted that Resident 102’s attending physician had determined that Resident 102 needed a “[l]ong term stay.”  Staff indicated that they would take the following approaches:  “discuss with resident/family/representative discharge planning process”; “[a]ssess future placement setting to determine if resident’s needs can be met”; and “discharge to another nursing/rehabilitation center.”  Additionally, with respect to a discharge to another facility, staff stated that they would

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arrange for the resident and/or representative to visit, determine a discharge date, arrange transportation, and prepare all the documents that would accompany the resident, which consisted of advanced directives, history/physical, current medications, current lab reports, and the resident transfer form.  CMS Ex. 24 at 489.

On April 15, 2015, a care plan conference was held, and in attendance were Resident 102; his nephew, Timothy Arms; Dr. Gurski; Petitioner’s Administrator, Alan Hall; the Social Services Director, Kristin Wright; staff person Joann Brown; and ADON Greg Hardy.  CMS Ex. 24 at 180-83.  According to the written summary of the conference, the purpose of the meeting was to explain to Resident 102 that due to his incident with another resident (i.e. Resident 57), Petitioner would have to transfer him to another facility.  The summary stated that Petitioner had “made arrangements for [Resident 102] [to] transfer to Clarksville” and that his nephew would take him to the facility.  Petitioner advised Resident 102 that “because of protocol [they] have to take this action to ensure safety of both residents.”  CMS Ex. 24 at 180.

The testimony of Resident 102’s nephew, Mr. Arms, is consistent with the written summary of the conference.  Mr. Arms testified that there was discussion of transferring Resident 102 to the Spring Meadows nursing facility in Clarksville, Tennessee, which was about 45 minutes away from Petitioner’s facility.  According to Mr. Arms, he had found Spring Meadows and passed on this information to Joann Brown.  Mr. Arms testified that he had been told by a Spring Meadows representative that they would be able to accept Resident 102, but that a pre-admission screen, known as a Pre-Admission Screen and Resident Review (PASSR) would first need to be done, which would take approximately ten days.  According to Mr. Arms, Petitioner’s staff had communicated with Spring Meadows staff and initiated the transfer process.  Mr. Arms stated that he believed that Resident 102 would be transferred to Spring Meadows “in the next two weeks.”  Tr. 140-43.

In a progress note dated April 15, 2015, the Social Services Director, Ms. Wright, documented that the care plan conference took place and stated, “[Resident 102] will be transferring to another facility.  The meeting went very well . . . [Resident 102] is understanding of the reasons.”  CMS Ex. 24 at 182.

Also, on April 15, 2015, Resident 102 had a session with Dr. Gurski.  In the progress notes, Dr. Gurski states that Resident 102 “learned he would need to move to Clarksville, the fallout from the inappropriate behavior toward female resident last week – very sad, anxious at first resistant but finally cooperated.”  CMS Ex. 24 at 179.  Dr. Gurski noted that Resident 102 might not be able to transfer for ten days.  CMS Ex. 24 at 179.  On April 16, 2015, Resident 102’s physician ordered that Resident 102 be discharged to another long-term care facility when a bed became available.  CMS Ex. 24 at 247.

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In a Social Service progress note dated April 19, 2015, the Social Services Director, Ms. Wright, noted that “[Resident 102] states that he does not want to leave but knows he has to.”  CMS Ex. 24 at 182.  On April 20, 2015, despite the fact that he was on one-on-one monitoring, Resident 102 apparently went down the hall where Resident 57 resided, and was reprimanded by Petitioner’s Social Services Director, Ms. Wright.  In her progress note, she wrote, among other things, that Resident 102 “understood that he was not allowed to go down the hallway yet he cont[inues] to try.”  Ms. Wright told Resident 102 that “new placement” would have to be found for him because of these attempts.  Ms. Wright stated that she called Resident 102’s nephew and stepbrother “in hopes of someone being able to shelter [Resident 102] until he can transfer to Spring Meadows as planned pending the PASSR.”  CMS Ex. 24 at 184-85.  Ms. Wright admitted that she told Mr. Arms that the resident “can’t stay here.”  CMS Ex. 24 at 19.

On April 21, 2015, around 5:30 p.m., Resident 57 was sent to the hospital for a psychiatric evaluation because she had been having paranoid thoughts.  CMS Ex. 25 at 44, 427-428, 463.  According to the hospital records, Resident 57 told staff that she “was almost raped” by another resident at the facility and she “couldn’t stop crying about it so they wanted to send me to [the hospital].”  CMS Ex. 25 at 432, 440, 443.  A crisis counselor with the Davidson County Mobile Crisis Response Team, who evaluated the information regarding Resident 57, recommended that Resident 57 return to Petitioner’s facility.  CMS Ex. 25 at 428, 437, 460, 467.  Resident 57 returned to the facility around 5:00 a.m. on April 22, 2015.  CMS Ex. 25 at 44, 442, 460.

According to the record, while Resident 57 was at the hospital, a mental health caseworker contacted Petitioner’s staff around 4:30 a.m. to obtain more information about Resident 57, and at that time, stated that Resident 57 had reported that she had almost been raped at Petitioner’s facility.  CMS Ex. 24 at 90, 267.  The record also contains a nursing note dated April 22, 2015, at 5:00 a.m., which documents that a call was received from a mental health caseworker “requesting more information on [Resident 57].”  This note makes no mention of any allegation by Resident 57 that she was almost raped.  CMS Ex. 25 at 45.

Around 4:45 p.m. on April 21, 2015, Resident 102 was sent to the hospital for a voluntary psychiatric evaluation.  CMS Ex. 24 at 146, 184-85, 247.11 Petitioner’s staff notified his

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nephew.  After Resident 102 was examined by the psychiatrist, the hospital sent him back to the facility, noting that he did not meet the criteria for commitment.  The hospital noted that the nursing home “[would] take care of other social issues and legal issues.”  CMS Ex. 24 at 220, 261.  Around 9:00 p.m. on April 21, 2015, Resident 102 returned to the facility.  He had no new orders, and his one-to-one monitoring resumed.  CMS Ex. 24 at 146.

Upon Resident 57’s return to the facility on April 22, 2015, staff conducted an investigation and reported the alleged attempted rape to Resident 57’s physician, the ombudsman’s office, police, adult protective services, and the state agency.  CMS Ex. 24 at 78-81, 92-93, 100, 120-126, 267.  Around 8:15 a.m., Nurse Teri Fallon interviewed Resident 57 about her statement to the hospital that she was almost raped.  According to the nursing notes, Resident 57 stated that Resident 102 had tried to climb into bed with her, and she pushed him off.  Resident 57 said that they were both clothed and that Resident 102 did not touch her anywhere.  CMS Exs. 24 at 99; 25 at 44.  At 8:30 a.m., Petitioner’s Administrator, Ed Hogan, interviewed Resident 102.  At 9:15 a.m., Dr. Gurski interviewed both Resident 57 and Resident 102.  Resident 57 recanted her statement that Resident 102 had almost raped her and stated that Resident 102 “had just tried crawling in the bed with her.”  CMS Ex. 24 at 267.

Petitioner’s internal report of its investigation identified Resident 102 as the alleged perpetrator and stated the following in the summary of findings:

[Resident 57] was “not raped.”  [Resident 102] and [Resident 57] had kissed on other occasions prior to this event.  She reports that this time he went to [sic] far and she pushed him away.  There was another incident that was reported on 4/9/15 related to [Resident 102] kissing her and fondling her breast.  She had not reported this ‘almost rape’ until 4/22/15.

CMS Ex. 24 at 80.  The report noted that Resident 102 was placed on one-on-one monitoring after the incident on April 9, 2015, and had remained on one-on-one monitoring since then.  CMS Ex. 24 at 80.

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Around 10:50 a.m., the police arrived at Petitioner’s facility and interviewed both Resident 57 and Resident 102.  CMS Ex. 24 at 98, 121-124, 267.  According to the police report, Resident 57 told the police officer that “everything was fine” and “made no statements about unwanted contact or alleged rape from [Resident 102].”  The police report states that Resident 102 was not questioned, but he admitted that he had kissed Resident 57 before and touched her breast once while in her room.  The report notes that Resident 102 stated that “the contact was mutual.”  CMS Ex. 24 at 123.  Teri Fallon, who was present at the interviews, noted that the police officer told Resident 102 that “nothing was going to come of this as [Resident 57] told him nothing happened.”  CMS Ex. 24 at 98.

At some point, either during the evening of April 21, 2015 or the morning of April 22, 2015, Petitioner’s Administrator, Mr. Hall, called Mr. Arms to inform him that the allegations against Resident 102 had “escalated,” that Resident 102 could no longer stay at the facility, and that he needed to pick up Resident 102.  Tr. 143.  In testifying about their conversation, Mr. Arms stated that he asked whether Petitioner could wait until Resident 102 was transferred to Spring Meadows, but, in response, Mr. Hall stated that  Mr. Arms lacked a sense of urgency, and that if they were unable to find another facility for Resident 102, they would discharge him to the Rescue Mission, a homeless shelter in downtown Nashville.  Tr. 143, 145; CMS Ex. 45 at 2.  According to Mr. Arms, Mr. Hall called him again on April 22, 2015, to find out when he would be coming to the facility to pick up Resident 102, and Mr. Arms stated that he would be there at 1:30 p.m.  Tr. 144.  Mr. Arms stated that Mr. Hall did not mention that the police had been called during either of their telephone conversations.  Tr. 143-44.  Mr. Arms stated that, after he arrived at the facility, he learned from Resident 102 that the police had been there and interviewed him.  Tr. 144-45.

Petitioner disputes CMS’s claim that Mr. Hall called Mr. Arms during the evening of April 21, 2015, to inform him that he needed to remove Resident 102 from the facility.  According to Petitioner, given the chronology of events, this telephone conversation could not have taken place at that time because Petitioner’s managers did not become aware of Resident 57’s allegation that Resident 102 almost raped her until the morning of April 22, 2015.  P. Br. at 16-17.  Petitioner argues that its staff immediately notified the police on the morning of April 22, 2015, and it is during that time frame that Mr. Hall called Mr. Arms, and when Mr. Arms learned of the police involvement, he decided to come and pick up Resident 102.  P. Br. at 17; Tr. 1040-41.

On April 22, 2015, at 9:00 a.m., Resident 102 had a final session with Dr. Gurski.  In the progress notes, Dr. Gurski stated that the focus of the session was to discuss the accusation of assault and to “prep for d/c [discharge].”  Dr. Gurski wrote that he “began to help [Resident 102] emotionally prepare to leave the facility later today.”  CMS Ex. 24 at 186.

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According to Petitioner’s records, staff “was initiating a Discharge Notice for [Resident 102] but the nephew called and stated he was taking him home at 1330.”  Staff wrote that if “by chance” Resident 102 did not leave on April 22, 2015, it would immediately issue a discharge notice and Resident 102 would remain on one-on-one monitoring.  CMS Ex. 24 at 267.

Mr. Arms testified that he arrived at Petitioner’s facility around 1:30 p.m. on April 22, 2015, to pick up Resident 102.  Mr. Arms testified that Petitioner’s staff had already packed up Resident 102’s possessions.  Prior to leaving the facility, Resident 102 and Mr. Arms had a meeting with Petitioner’s staff.  In attendance were Dr. Gurski, Administrator Hall, Joanne Brown, ADON Hardy, Social Services Director Kristin Wright, and the Activities Director, Morgan (last name is unknown).  The meeting lasted thirty to forty minutes.  Resident 102 and Mr. Arms then spoke with Dr. Gurski for about fifteen minutes.  Mr. Arms testified that Dr. Gurski “was trying to reassure [Resident 102] that everything was going to be okay.”  Dr. Gurski gave Mr. Arms his business card and told Resident 102 that he could call him at any time.  Tr. 145-50.

Mr. Arms testified that Nurse Hardy met them in the hall to give them Resident 102’s medications.  Mr. Arms testified that Nurse Hardy gave him two documents:  one titled “Discharge Instructions for Care,” and another titled “Medication Release/Receipt.”  Tr. 148; CMS Ex. 24 at 244-45.  As Resident 102’s power of attorney, Mr. Arms signed both these documents.  According to Mr. Arms, Nurse Hardy gave him the resident’s remaining medications and told him the names of the medications, but did not discuss side effects or when the drugs should be administered.  CMS Ex. 45 at 2-3; Tr. 148-49, 150-51.  Mr. Arms did not get any prescriptions that could be refilled and was told that he was responsible for obtaining all of the over-the-counter medications.  CMS Ex. 45 at 3; Tr. 149.

On the discharge instructions sheet, Petitioner’s staff listed Resident 102’s medications and his dietary restrictions.  With respect to Resident 102’s current physical status, Petitioner’s staff indicated that he had “no limitations.”  Petitioner’s staff noted that Resident 102 needed no assistance with ambulation, i.e., he was able to ambulate independently from bed to chair, and required no assistance with walking or using the stairs; and he used a wheelchair and a cane.  Petitioner’s staff indicated further that Resident 102 was independent with his activities of daily living:  he required no assistance with bathing, dressing, feeding, brushing his teeth, shaving, or toilet use.  Although there is a section on the discharge instructions sheet listing options for “referrals for care,” such as “Home Healthcare Agency,” “Meals on Wheels,” or “Senior Citizens Agency,” none of these were checked off by staff.  Instead, staff checked “Other,” noting that Resident 102 was sent home with his nephew.  CMS Ex. 24 at 244.

On the Medication Release/Receipt sheet, Petitioner’s staff listed nine medications, with the prescribed amounts of each.  The sheet shows that staff gave Mr. Arms a fifteen-day

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supply of Seroquel (30 pills) and a nine-day supply (nine pills) of Zoloft.  According to the document, the medication regimen was reviewed with Mr. Arms.  It was noted that Resident 102 was discharged home with Mr. Arms.  CMS Ex. 24 at 245.

The record also contains another MDS for Resident 102, which has an assessment reference date of April 22, 2015, which is the date Resident 102 was discharged from Petitioner’s facility.  CMS Ex. 24 at 435-459.  On this MDS, staff assessed Resident 102 as requiring extensive assistance with bed mobility, transfers, and toilet use, and needing assistance with dressing, personal hygiene, and bathing, which is inconsistent with his discharge instructions.  CMS Ex. 24 at 244, 445-46.

On April 22, 2015, Resident 102’s physician, Dr. Williams, gave a telephone order signing off on Resident 102’s discharge after he was informed that Mr. Arms was going to pick up Resident 102.  CMS Ex. 24 at 248.  According to the record, Dr. Williams did not have any involvement in the discharge process and did not speak with Mr. Arms about Resident 102’s discharge.  CMS Ex. 24 at 67-68.

In a nursing note dated April 22, 2015, at 1:35 p.m., ADON Hardy documented that Resident 102 was discharged home with his nephew, Tim Arms, and that he had “[e]ducated nephew concerning medications; administration times and reason for use.”  ADON Hardy stated that Mr. Arms had “voiced understanding” and was given “medications to last 12 days.”  CMS Ex. 24 at 146.

According to Mr. Arms, after he and Resident 102 left the facility, he was driving around and “didn’t know what to do with [Resident 102].”  Tr. 151.  Mr. Arms testified that he was not in a position to take in Resident 102.  He stated that he did not tell anyone at the facility that he did not know where he would be taking Resident 102.  Tr. 155.  Mr. Arms stated that he drove to Clarksville, and there, they went to a lawyer’s office to obtain advice.  Tr. 151-52.  Mr. Arms testified that he found an efficiency room in a motel for Resident 102, which served as his lodging for about a month.  CMS Ex. 45 at 3.  Resident 102 then moved from the motel into subsidized housing for the elderly and disabled.  CMS Ex. 45 at 4; Tr. 437-38.

As testified by Mr. Arms, the representatives at the Clarksville nursing home, Spring Meadows, informed him and Resident 102 that Spring Meadows could no longer accept Resident 102 because he had been discharged and was no longer a resident at a nursing home.  CMS Ex. 45 at 4.  Mr. Arms stated that Petitioner did not inform him or Resident 102 that they had the right to appeal the discharge and only learned of his appeal rights

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after he spoke to a long-term care ombudsman around mid-May.  Tr. 152-53; CMS Ex. 45 at 5.

On May 26, 2015, Petitioner issued a document titled “Nursing Facility Notice of Transfer or Discharge” to Resident 102 and his nephew.12 CMS Ex. 24 at 392-93.  The notice was signed by Petitioner’s then Administrator, Ed Hogan,13 and Petitioner’s Medical Director, Donald Vollmer, M.D.  CMS Ex. 24 at 393.  The notice stated that the “[r]eason for discharge or transfer” was “[t]he health of other individuals in this facility is endangered” and stated as an explanation, “[s]exually inappropriate with female resident.”  CMS Ex. 24 at 392.

Petitioner’s policy regarding a transfer or discharge requires that it provide residents “with a thirty (30) day written notice of an impending transfer or discharge.”  The policy lists the following situations which would qualify as exceptions to the 30-day advance notice requirement:

a.  The safety of the individuals in the facility would be endangered;
b.  The health of individuals in the facility would be endangered;
c.  The resident’s health improves sufficiently to allow a more immediate transfer or discharge;
d  An immediate transfer or discharge is required by the resident’s urgent medical needs;
e  A resident has not resided in the facility for 30 days; or
f. The facility ceases to operate.

CMS Ex. 24 at 517.

b.  Analysis

I limit my review of the May 22, 2015 survey to the deficiency citations related to the discharge of Resident 102.  Therefore, I only discuss Petitioner’s violations of 42 C.F.R.

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§§ 483.12(a)(2) (Tag F201); 483.12(a)(3) (Tag F202); 483.12(a)(4)-(6) (Tag F203); 483.12(a)(7) (Tag F204), and 483.75 (Tag F490).  In citing these deficiencies the surveyors alleged that Petitioner discharged Resident 102 unnecessarily and involuntarily from the facility, without complying with notice requirements, without planning for his post-discharge care, without proper documentation of the reason for discharge, and without sufficiently preparing Resident 102 to ensure his safe and orderly discharge from the facility.  The surveyors allege that Petitioner’s violations placed Resident 102 in immediate jeopardy.  I concur.

The Secretary has defined the phrase “transfer and discharge” to be the “movement of a resident to a bed outside of the certified facility whether that bed is in the same physical plant or not. Transfer and discharge does not refer to movement of a resident to a bed within the same certified facility.”  42 C.F.R. § 483.12(a)(1).  Pursuant to 42 C.F.R. § 483.12(a)(2):

The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless—

(i) The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;

(ii) 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;

(iii) The safety of individuals in the facility is endangered;

(iv) The health of individuals in the facility would otherwise be endangered;

(v) The resident has failed, after reasonable and appropriate notice, to pay for . . . [the resident’s] stay . . . .; or

(vi) The facility ceases to operate.

42 C.F.R. § 483.12(a)(2).

Before a facility transfers or discharges a resident, it must comply with specific documentation requirements and procedures.  The facility must document the transfer or discharge in the resident’s clinical record, and this documentation must be made by either the resident’s physician when the transfer or discharge is necessary under 42 C.F.R.

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§ 483.12(a)(2)(i) or (ii), or a physician when the transfer or discharge is necessary under 42 C.F.R. § 483.12(a)(2)(iv).  42 C.F.R. § 483.12(a)(3).

Before the transfer or discharge, the facility is required to notify the resident and, if known, the resident’s family member or legal representative and give “the reasons for the move in writing and in a language and manner they understand.”  The facility is required to “[r]ecord the reasons in the resident’s clinical record; and . . . [i]nclude in the notice the items described in [42 C.F.R. § 483.12(a)(6).]”  42 C.F.R. § 483.12(a)(4).  With respect to the timing of the notice, the facility is required, except in certain enumerated circumstances, to give notice at least 30 days before the resident is transferred or discharged.  The 30-day requirement does not apply, and the facility may give notice “as soon as practicable before transfer or discharge” when the safety or health of individuals in the facility would be endangered, the resident’s health has improved sufficiently to allow a more immediate transfer or discharge, the resident’s urgent medical needs require an immediate transfer or discharge, or the resident has not resided in the facility for 30 days.  42 C.F.R. § 483.12(a)(5).

The written notice must include the following:  1) the reason for the transfer or discharge; 2) the effective date of transfer or discharge; 3) the location to which the resident is transferred or discharged; 4) a statement that the resident has the right to appeal the action to the state; 5) the name, address and telephone number of the state’s long-term-care ombudsman; 6) for residents with developmental disabilities, the mailing address and telephone number of the state agency responsible for the protection and advocacy of the developmentally disabled; and 7) for mentally ill residents, the mailing address and telephone number of the state agency responsible for the protection and advocacy of mentally ill individuals.  42 C.F.R. § 483.12(a)(6).  Finally, under the regulations, a facility is required to “provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.”  42 C.F.R. § 483.12(a)(7).

I conclude that CMS has made a prima facie showing of noncompliance under Tags F201, F202, F203, F204, and F490 in the case of Resident 102, and that these violations posed immediate jeopardy to Resident 102.  I further conclude that Petitioner failed to rebut the prima facie showing or establish any affirmative defense.  The evidence shows that Petitioner’s staff had no adequate justification under the regulations for abruptly discharging Resident 102, and his departure from the facility was involuntary.  The evidence shows that, in carrying out the involuntary discharge of Resident 102, Petitioner’s staff failed to comply with the regulatory requirements and procedures relating to transfer or discharge.  The abrupt, involuntary discharge, without adequate planning and notice, posed a risk for serious harm to or death of Resident 102.

Petitioner argues that the circumstances of Resident 102’s departure from the facility show that he was not involuntarily discharged on April 22, 2015.  Petitioner asserts that Resident 102 expressed to Petitioner’s management that he did not wish to be on one-on-

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one supervision indefinitely.  Petitioner asserts that, with Resident 102’s knowledge and agreement, its staff had begun the process for a planned, voluntary discharge of Resident 102 to another facility.  Petitioner argues that the discharge process was interrupted through no fault of the facility.  P. Br. at 15-17; P. Reply at 17.  Petitioner contends that Resident 102 left the facility voluntarily after his nephew chose to abruptly remove him from the facility due to concerns regarding the police investigation of Resident 57’s allegation of attempted rape by Resident 102.  Petitioner argues further that there is no evidence that Resident 102 suffered any harm as a result of its staff’s actions.  Finally, Petitioner asserts that, in light of Resident 57’s allegation of attempted rape by Resident 102, “consideration of immediate involuntary discharge would have been completely appropriate at that time.”  P. Reply at 12.

(i) The violation of 42 C.F.R. § 483.12(a)(2) (Tag F201)

In the SOD, the surveyors allege that Petitioner violated 42 C.F.R. § 483.12(a)(2) (Tag F201) because Petitioner “discharged 1 resident (#102) unnecessarily and without notice or planning for post-discharge care, and without informing the resident and the resident’s family of transfer and discharge rights.”  CMS Ex. 13 at 3.  My review of the record does not show that any of the situations listed in 42 C.F.R. § 483.12(a)(2) existed in Resident 102’s case which would have justified his discharge from Petitioner’s facility.  Moreover, as to Petitioner’s claim that Resident 102 left the facility of his own volition, I find that the documentary evidence and the credible testimony of Resident 102’s nephew, Mr. Arms, establish that Resident 102 did not leave voluntarily, and that Petitioner’s staff essentially manipulated or coerced Mr. Arms to remove Resident 102 from the facility on April 22, 2015.

The record shows that following Resident 102’s incident with Resident 57, Petitioner’s staff began to plan for his discharge to another facility on April 10, 2015.  On April 10, Petitioner’s staff prepared a discharge care plan, which noted a target date of July 10, 2015.  CMS Ex. 24 at 489-90.  Although staff noted that a “resident, relative, or representative” had expressed a wish for discharge to another long-term care facility, I note that this statement is not explained further, and appears to be contradicted by Resident 102 and his nephew, who did not wish Resident 102 to be discharged from Petitioner.  The discharge care plan also noted that Resident 102’s attending physician had determined that Resident 102 needed a “[l]ong term stay.”  Staff indicated that they would take the following approaches:  “discuss with resident/family/representative discharge planning process”; “[a]ssess future placement setting to determine if resident’s needs can be met”; and “discharge to another nursing/rehabilitation center.”  Additionally, staff stated that they would arrange for the resident and/or representative to visit the new facility, determine a discharge date, arrange transportation, and prepare all the necessary documents that would accompany the resident, including the resident transfer form.  CMS Ex. 24 at 489.

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Petitioner argues that Resident 102 and his nephew both agreed during a care plan conference that Resident 102’s transfer to Spring Meadows in Clarksville, was in his  best interest.  Both Resident 102 and his nephew signed the care plan conference form indicating their understanding and agreement.  P. Br. at 15; Tr. 845; CMS Ex. 24 at 180  While Resident 102 and his nephew signed the from indicating that they understood and agreed with the decision to transfer him, the form does not state that they agreed the transfer was in Resident 102’s best interest.  In fact, the evidence shows that neither Resident 102 nor his nephew wanted Resident 102 transferred to another facility.  Tr. 152-54; CMS Ex. 45 at 1-2.  Resident 102 told staff on several occasions he did not wish to leave, but staff encouraged him to have a positive attitude.  The progress notes for Resident 102’s counseling session with Dr. Gurski following the care plan conference on April 15, 2015, state that Resident 102 “learned he would need to move to Clarksville, the fallout from the inappropriate behavior toward female resident last week.”  Dr. Gurski noted that Resident 102 was “very sad” and “anxious” and that he was “at first resistant but finally cooperated.”  CMS Ex. 24 at 179.  Dr. Gurski worked with Resident 102 to help him “find positive aspects of the move.”  CMS Ex. 24 at 179.  In a progress note dated April 16, 2015, the Social Services Director, Ms. Wright, wrote that Resident 102 was “still tearful” and “sad that he would have to leave the facility.”  CMS Ex. 24 at 182-83.  In another Social Service progress note dated April 19, 2015, Ms. Wright noted that Resident 102 “states that he does not want to leave but knows he has to.”  CMS Ex. 24 at 182-83.14

Even though Spring Meadows needed ten days to complete the pre-admission screening before accepting Resident 102 as a transfer (Tr. 851-52), Petitioner’s staff wanted him out of the facility earlier.  On April 20, 2015, despite the fact that he was on one-to-one monitoring, Resident 102 apparently went down the hall where Resident 57 resided, and was reprimanded by Petitioner’s Social Services Director, Ms. Wright.  In her progress note, she wrote, among other things, that Resident 102 “understood that he was not allowed to go down the hallway yet he cont[inues] to try.”  Ms. Wright told Resident 102 that “new placement” would have to be found for him because of these attempts.  Ms. Wright stated that she called Resident 102’s nephew and stepbrother “in hopes of someone being able to shelter [Resident 102] until he can transfer to Spring Meadows as

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planned pending the PASSR.”  CMS Ex. 24 at 184-85.  Ms. Wright admitted that she told Mr. Arms that the resident “can’t stay here.”  CMS Ex. 24 at 19.

Oyher than the incident on April 20, 2015, the record contains no documentation of any other instance when Resident 102 tried to seek out Resident 57 or go down her hall.  In fact, the nursing notes show that Resident 102 had been compliant with one-to-one supervision, which he enjoyed, and had not exhibited any problematic behaviors.  CMS Ex. 24 at 143 (duplicate at 173), 144, 145, 146, 174, 182.  According to Petitioner’s aides, Resident 102 had not had any contact with Resident 57 after April 9, 2015.  CMS Ex. 24 at 90-91.  Petitioner offered no evidence that Resident 102 posed a threat to Resident 57’s safety after April 9, 2015.

The evidence shows that Petitioner’s discharge plan for Resident 102 was tossed by Petitioner after Petitioner’s staff learned that Resident 57 alleged attempted rape by Resident 102.  Petitioner asserts that Resident 102’s nephew abruptly removed Resident 102 from the facility on April 22, 2015, because both the nephew and Resident 102 were panicked by the police involvement in the matter.  Petitioner argues that the circumstances show that Resident 102 was not discharged involuntarily, but rather, that he left the facility of his own volition.  I am unpersuaded by Petitioner’s arguments.  The evidence shows that Spring Meadows had agreed to accept Resident 102 pending receipt of the pre-admission screening (Tr. 851-52, 855).  But Petitioner’s staff interrupted the orderly transfer process that had been ongoing.  When Petitioner learned of the allegation of attempted rape, Petitioner became intent on having Resident 102 leave its facility as soon as possible.  Rather than wait for his transfer to Spring Meadows to be processed, Petitioner’s staff coerced Resident 102’s nephew to remove him from the facility on April 22, 2015.

Petitioner’s own timeline of the events of April 22, 2015, belies its position that Resident 102 left the facility of his own volition.  CMS Ex. 24 at 267.  According to the timeline: the facility learned of Resident 57’s allegation of attempted rape by Resident 102 around 8:00 a.m.; Nurse Terri Fallon interviewed Resident 57 at 8:20 a.m.; Petitioner’s Administrator, Ed Hogan, interviewed Resident 102 at 8:30 a.m.; at 9:15 a.m. Dr. Gurski was notified to visit both residents and he did; during the interview with Resident 57 at about 9:15 a.m. she asked Dr. Gurski if she could recant the allegation; at 10:35 a.m. Petitioner called the police; at 10:40 a.m. Petitioner notified Resident 102’s nephew; at 10:48 a.m. Petitioner’s administrator “made attempts to transfer [Resident 102] out and he remains one on one”; at 10:50 a.m. the police arrived and interviewed both Resident 57 and Resident 102; at 11:15 a.m. Petitioner’s staff was preparing a discharge notice for Resident 102 but his nephew called and stated he was taking the resident home at 1:30 p.m. and if that did not happen the plan was to issue the discharge notice immediately; and at 1:30 p.m. Resident 102 was discharged from the facility and left with his nephew.  CMS Ex. 24 at 267.  

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Dr. Gurski’s progress notes for his session with Resident 102 on April 22, 2015, reflect a time of 9:00 a.m., and state that the focus of the session was to discuss the accusation of assault and to prepare Resident 102 for discharge.  Dr. Gurski wrote that he “began to help [Resident 102] emotionally prepare to leave the facility later today.”  Under “Plan/Staff Recommendations,” Dr. Gurski wrote “release from therapy.”  CMS Ex. 24 at 186.  Thus, the documentary evidence shows that as early as 9:00 a.m. on April 22, Petitioner had decided to discharge Resident 102 because around that time Dr. Gurski was preparing Resident 102 for discharge.  Petitioner’s timeline also shows that around 10:48 a.m., before Resident 102’s nephew had even arrived at the facility, Administrator Hogan attempted to transfer Resident 102 out of the facility, but was unsuccessful in his efforts.

The record does not make more likely true than not Petitioner’s version that Resident 102’s nephew removed Resident 102 from the facility because both were terrified and panicked when the police became involved in the matter.  Mr. Arms, Resident 102’s nephew, testified that Assistant Administrator Hall called him during the evening of April 21, 2015, and told him that the situation with Resident 102 had “escalated,” that they were now possibly dealing with a criminal situation, and that if he did not come pick-up Resident 102 as soon as possible, the facility would discharge Resident 102 to a homeless shelter in downtown Nashville.  Mr. Arms testified he told Mr. Hall that he would come to the facility to pick-up Resident 102 the next day, April 22, 2015.  He testified that Mr. Hall called him again on April 22, 2015, and wanted to know what time he was coming for Resident 102, and that is when he told Mr. Hall at 1:30 p.m.  Tr. 143; CMS Ex. 45.  Petitioner claims that Assistant Administrator Hall called Mr. Arms only on April 22, 2015but, I find credible Mr. Arms testimony that he received a call from Hall on both April 21 and 22, 2015.  Assistant Administrator Hall denies having stated that Resident 102 would be released to a homeless shelter if someone did not come and pick him up (Tr. 1041).  However, I find Mr. Hall’s denial less than credible in light of the fact that the record shows that Petitioner’s management was attempting to transfer Resident 102 out of the facility on the morning of April 22, 2015, before the nephew had even arrived to pick-up the resident.  It is clear that Petitioner had decided that Resident 102 could no longer remain at the facility, and sought to have Resident 102 discharged one way or another.  Further, according to Petitioner’s timeline, if “by chance” Resident 102 did not leave on April 22, 2015 at about 1:30 p.m., staff was to immediately issue a discharge notice to Resident 102.  CMS Ex. 24 at 267  The evidence does not show that f Mr. Arms panicked.  Rather, Mr. Arms was confronted with a threat of law enforcement involvement or discharge of his uncle to a homeless shelter.  The evidence is clear that Resident 102 would not continue to be a resident of Petitioner.  It was clear to Mr. Arms that Resident 102 would no longer be able to stay at Petitioner’s facility until his transfer arrangements to another facility were finalized.  Therefore, Mr. Arms had no real choice but to take Resident 102 out of Petitioner’s facility.  In fact, when Mr. Arms arrived at Petitioner’s facility around 1:30 p.m. to pick up Resident 102, Petitioner’s staff had already packed up Resident 102’s possessions.  Tr. 145-146, 148.

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It is thus evident that Petitioner sought Resident 102’s discharge one way or another on April 22, 2015, and that it was Petitioner’s staff, not Mr. Arms, who disrupted the planned discharge of Resident 102 to another facility and instead, initiated an abrupt, involuntary discharge.  Under the regulations, Petitioner was only permitted to discharge a resident under the circumstances listed in 42 C.F.R. § 483.12(a)(2).  Although Petitioner admits in its prehearing brief that Resident 102 did not fall into any of these categories (Petitioner’s Prehearing Brief at 14), it also takes the inconsistent position that discharge was justified because the health and safety of its residents was endangered.  In examining the situations under which discharge is permitted, I conclude that none of them applied in Resident 102’s case.

Among the exceptions, a facility may discharge a resident if the transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility; 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; the safety of individuals in the facility is endangered; or the health of individuals in the facility would otherwise be endangered.  42 C.F.R. § 483.12(a)(2)(i)-(iv).

In the case of Resident 102, I conclude that Petitioner offered no evidence that the discharge of Resident 102 was necessary for his welfare.  Nor has it offered any documentation from any medical professional stating that a discharge was necessary because Resident 102’s needs could no longer be met in Petitioner’s facility.  As discussed above, Resident 102 enjoyed the one-to-one supervision; he had friends at the facility; and he had no desire to leave.  Petitioner offered no evidence that Resident 102’s health had improved sufficiently so that he no longer needed the services provided by Petitioner.  In fact, as documented in his discharge MDS which was completed on April 22, 2015, Resident 102 was assessed at that time as requiring extensive assistance with bed mobility, transfers, and toilet use, and needing assistance with dressing, personal hygiene, and bathing.  CMS Ex. 24 at 445-46.  That Resident 102 continued to require long-term care is also confirmed by his physician who, after the April 15, 2015 care plan conference, specifically ordered that he be discharged to another long-term care facility when a bed became available.  CMS Ex. 24 at 247.

Further, there is no evidence that Resident 102’s discharge was required because the health or safety of other individuals in Petitioner’s facility was endangered.  Petitioner offered neither documentary nor testimonial evidence to show that Resident 102’s continued presence in the facility would have endangered the health or safety of other individuals.  Resident 102 was on one-to-one supervision at all times from April 9, 2015, until he was discharged on April 22, 2015.  Although Petitioner’s staff documented one occasion when Resident 102 attempted to walk down Resident 57’s hallway on April 20, 2015, I find that this one instance fails to show that Resident 102 posed any threat to Resident 57’s health or safety and cannot justify Petitioner’s discharge of Resident 102

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on those grounds.  Aside from that one occurrence, there is no documentation in the record of any other instance when Resident 102 tried to seek out Resident 57 prior to his leaving the facility or exhibited inappropriate behavior towards her or anyone else.  In fact, the written statement from Petitioner’s nurse who received the call from the mental health case worker concerning Resident 57’s allegation of attempted rape asserts “[Resident 57] had never been in a dangerous situation, to my knowledge . . . since [the incident of April 9, 2015], [Resident 102] had not been in her room or anywhere near her.”  CMS Ex. 24 at 90.  Further, as the record shows, Resident 57 recanted her allegation that Resident 102 almost raped her.

Over a month after Resident 102 was discharged, and following the survey, Petitioner issued to Resident 102 and his nephew a document titled “Nursing Facility Notice of Transfer or Discharge” on May 26, 2015, which was signed by Petitioner’s Administrator, Ed Hogan, and Petitioner’s Medical Director, Donald Vollmer, M.D.  CMS Ex. 24 at 392-93.  The notice stated that the “[r]eason for discharge or transfer” was “[t]he health of other individuals in this facility is endangered” and stated as an explanation, “[s]exually inappropriate with female resident.”  CMS Ex. 24 at 392.  I find that Petitioner’s notice constitutes nothing more than an unsubstantiated, after-the-fact attempt to offer a justification for Resident 102’s discharge.  I reiterate that Petitioner pointed to nothing in Resident 102’s record showing that Resident 102’s discharge was necessary on the grounds that he endangered the health of other individuals in the facility.  Nor did Petitioner offer any evidence that its staff believed that Resident 102 posed an ongoing threat to the health or safety of Resident 57 or any other female resident.  Petitioner thus failed to rebut CMS’s evidence showing that it discharged Resident 102 without proper justification.  I conclude Petitioner violated 42 C.F.R. § 483.12(a)(2).

(ii.) The violation of 42 C.F.R. § 483.12(a)(3) (Tag F202)

Based on Petitioner’s involuntary discharge of Resident 102, the surveyors also alleged that Petitioner violated 42 C.F.R. §§ 483.12(a)(3) (Tag F202), 483.12(a)(4)-(6) (Tag F203), and 483.12(a)(7) (Tag F204) because Petitioner failed to follow the regulatory requirements and procedures relating to transfer or discharge.  Inasmuch as its position is that Resident 102 abruptly left the facility of his own volition, Petitioner generally asserts that its staff met its obligations under the aforementioned regulations.  As I explain below, I conclude that Petitioner violated 42 C.F.R. §§ 483.12(a)(3) (Tag F202), 483.12(a)(4)-(6) (Tag F203), and 483.12(a)(7) (Tag F204).

Under 42 C.F.R. § 483.12(a)(3) (Tag F202), the surveyors allege in the SOD that Petitioner failed to document the reason for Resident 102’s discharge and also failed to ensure that Resident 102 had a post-discharge care plan.  The regulation requires that a resident’s clinical record must be documented when a facility transfers or discharges a resident under any of the circumstances specified in 42 C.F.R. § 483.12(a)(2)(i) through (v).  If the transfer or discharge is pursuant to 42 C.F.R. § 483.12(a)(2)(i) or (a)(2)(ii),

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then the resident’s physician must provide the documentation, and if the transfer or discharge is pursuant to 42 C.F.R. § 483.12(a)(2)(iv), then a physician must provide the documentation.

As I have concluded, Resident 102 was not discharged under any of the circumstances specified in 42 C.F.R. § 483.12(a)(2)(i) through (v).  Although Petitioner claimed that it discharged Resident 102 because the health of other individuals in the facility was endangered, the evidence does not support Petitioner’s arguments.

However, even if Petitioner was justified in discharging Resident 102, Petitioner offered no evidence that it had documented Resident 102’s clinical record as required under 42 C.F.R. § 483.12(a)(3).  The record shows that on April 22, 2015, Resident 102’s physician, Dr. Williams, gave a telephone order that stated “DC [discharge] home with medications.”  CMS Ex. 24 at 248.  No further explanation was given and Dr. Williams apparently issued the order after he was informed that Mr. Arms was going to pick up Resident 102 that day.  CMS Ex. 24 at 67.  I do not find that Dr. Williams’ telephone order satisfies the documentation requirements of 42 C.F.R. § 483.12(a)(3).  While his order indicates that he signed off on Resident 102’s discharge, this, in and of itself, does not constitute adequate documentation of the discharge.  Since he was Resident 102’s treating physician, one would have expected Dr. Williams to have been involved in making the decision to discharge him.  However, the record reflects that Dr. Williams did not even assess Resident 102 prior to his leaving the facility and Dr. Williams himself stated that he was not involved at all in the discharge process.  CMS Ex. 24 at 67.  Aside from the telephone order, I find that Resident 102’s medical record contains no documentation by Dr. Williams of his discharge.  I thus conclude that Petitioner violated 42 C.F.R. § 483.12(a)(3) (Tag F202).

I do not address the surveyors’ additional allegation under Tag F202 that Petitioner failed to ensure that Resident 102 had a post-discharge care plan because this requirement is not part of 42 C.F.R. § 483.12(a)(3).  A facility’s failure to have a post-discharge care plan is addressed by another, separate regulation, which is found at 42 C.F.R. § 483.20(l).15

(3) A post-discharge plan of care that is developed with the participation of the resident and his or her family, which will assist the resident to adjust to his or her new living environment. I note that the surveyors did not allege a violation under 42 C.F.R. § 483.20(l).

 

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(iii.) The violation of 42 C.F.R. § 483.12(a)(4)-(6) (Tag F203)

Under 42 C.F.R. § 483.12(a)(4)-(6) (Tag F203), the surveyors allege in the SOD that Petitioner “failed to issue a discharge notice to include the resident’s right to an [sic] appeal a discharge for 1 resident (#102) of 8 residents reviewed for transfer and discharge.”  CMS Ex. 13 at 21.  I note that, in its post-hearing brief, CMS set out in more detail how Petitioner failed to comply with these requirements.  CMS argues that Petitioner belatedly gave Resident 102 notice over a month after his discharge and that the notice was deficient in many respects.  CMS argues that the notice failed to state the reason for the discharge, the effective date of the discharge, where the resident would be discharged, contact information for the state long-term care ombudsman and the Tennessee Department of Mental Health & Substance Abuse Services, and the fact that Resident 102 had a right to appeal the discharge.  CMS Br. at 15.  CMS further claims that Petitioner violated its own policy regarding providing notice to residents of a transfer or discharge.  CMS Br. at 14.

Petitioner has not claimed to be surprised nor has it objected to my consideration of CMS’s additional allegations that were not originally cited in the SOD.  Thus, in the absence of any objection, I permit the additional allegations and consider them in my analysis of whether Petitioner violated 42 C.F.R. § 483.12(a)(4)-(6) (Tag F203).

Petitioner does not address any of CMS’s allegations under Tag F203 directly, but merely maintains that Resident 102 left the facility voluntarily and that his discharge was approved by Dr. Williams and Dr. Vollmer.  Petitioner does not dispute that when Resident 102 left the facility on April 22, 2015, it failed to provide him with a notice of discharge or transfer on that date or any time prior to that date.  Petitioner also does not dispute that it provided a discharge notice to Resident 102 over a month after he had left the facility.

Petitioner’s written policy relating to providing notice of a transfer or discharge states that residents are to be provided “with a thirty (30) day written notice of an impending

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transfer or discharge.”  The policy states “[s]hould it become necessary to transfer or discharge a resident from our facility, a representative of administration will provide the resident and family member (representative/sponsor) with a written thirty (30) day advance notice of the transfer or discharge.”  The policy states that the notice will include the following:

a.  The reason for the transfer or discharge;
b.  The effective date of the transfer or discharge;
c.  The location to which the resident is transferred or discharged;
d.  An explanation of the resident’s right to appeal the transfer or discharge to the State; and
e.  The name, address, and telephone number of the state long-term care ombudsman.

CMS Ex. 24 at 517.  The policy lists exceptions to the 30-day advance notice of a discharge, which are limited to:

a.  The safety of the individuals in the facility would be endangered;
b.  The health of individuals in the facility would be endangered;
c.  The resident’s health improved sufficiently to allow a more immediate transfer or discharge;
d.  An immediate transfer or discharge is required by the resident’s urgent medical needs;
e.  A resident has not resided in the facility for 30-days; or
f.  The facility ceases to operate.

CMS Ex. 24 at 517.  Petitioner’s policy closely follows the regulatory language found at 42 C.F.R. § 483.12(a)(4)-(6).

At the care plan conference held on April 15, 2015, Resident 102 and his nephew were advised by Petitioner’s staff that it was necessary to transfer Resident 102 and that arrangements were being made for him to be transferred to the Spring Meadows facility in Clarksville, Tennessee.  CMS Ex. 24 at 180.  The next day, April 16, 2015, Resident 102’s physician ordered that Resident 102 be discharged to another long-term care facility when a bed became available.  CMS Ex. 24 at 247.

Thus, under the regulations and Petitioner’s own policy, once Resident 102 was advised that he would be transferred, Petitioner was required to provide him and his nephew with a written 30-day advance notice of the impending planned transfer, which contained, among other things, a statement that he has the right to appeal the action to the State.

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Petitioner failed to do this.  The fact that Resident 102’s discharge happened abruptly on April 22, 2015, cannot justify Petitioner’s failure to provide the required notice a week earlier when it was first determined by staff that it had “become necessary to transfer” Resident 102.

Instead of giving Resident 102 timely and adequate notice of his discharge, Petitioner gave him a Nursing Facility Notice of Transfer or Discharge on May 26, 2015, over a month after Resident 102 left the facility.  As discussed above, Petitioner’s purported reason for discharging Resident 102 was that his presence endangered the health of other individuals in the facility and he had been sexually inappropriate with a female resident.  By citing these reasons, Petitioner apparently intended to show that Resident 102’s discharge was not subject to the 30-day advance notice requirement since the circumstances fell within one of the exceptions contained in the regulation and its own policy.  However, because Petitioner’s reason for discharge was wholly unsubstantiated, the May 26, 2015 discharge notice given to Resident 102 was nothing more than an after-the-fact attempt to show some justification for his discharge and, as such, was in violation of its own policy and 42 C.F.R. § 483.12(a)(4)-(6).  Petitioner failed to rebut CMS’s evidence showing that it failed to provide Resident 102 with timely and adequate notice of his discharge.

(iv.) The violation of 42 C.F.R. § 483.12(a)(7) (Tag F204)

The surveyors also alleged that Petitioner violated 42 C.F.R. § 483.12(a)(7) (Tag F204) when its staff discharged Resident 102 from the facility.  Under 42 C.F.R. § 483.12(a)(7), a facility is required to “provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.”  The surveyors allege in the SOD that Petitioner “failed to provide preparation for discharge to the community for [Resident #102].  Resident #102 was not provided prescriptions, instructions for follow-up physician appointment, or any community resources to meet his basic needs.”  CMS Ex. 13 at 24.

CMS alleges that when Petitioner discharged Resident 102, it failed to ensure his continuity of care after he left the facility.  CMS argues that Petitioner discharged Resident 102 without having prepared a care plan that addressed his numerous medical conditions, including depression, cellulitis, edema, risk for falls, risk of skin breakdown, and urinary tract infections.  CMS argues that when Resident 102 was discharged, Petitioner’s staff gave him only a small supply of prescription medications with virtually no orientation regarding them and did not give him any fillable prescriptions or over-the-counter medications.  CMS alleges further that Petitioner failed to ensure that medical,

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mental health, or home health aide services would be available to Resident 102 after he left the facility.  CMS Br. at 16-17.  Finally, CMS argues that as a result of Resident 102’s sudden discharge, he was automatically unenrolled from TennCare CHOICES and lost access to various in-home services.16 CMS Br. at 18-19.

I conclude that the evidence shows a violation of 42 C.F.R. § 483.12(a)(7).  I find nothing in the record that suggests that Petitioner sufficiently prepared and oriented Resident 102 to ensure his safe and orderly discharge.  As I discuss below, Petitioner discharged Resident 102 with blatant disregard as to whether or how his needs would be met.

On the day of his discharge, April 22, 2015, Resident 102 and his nephew, Mr. Arms, had a meeting with certain members of Petitioner’s staff, including Dr. Gurski, Administrator Hall, and Kristin Wright.  Although the meeting lasted thirty to forty minutes, there is no evidence that staff discussed Resident 102’s numerous medical needs with Mr. Arms or that they gave Mr. Arms any instructions related to post-discharge care.  In fact, rather than using the meeting to discuss how Resident 102’s needs would continue to be met after he left the facility, it appears that the sole purpose of the meeting was to break the news to Resident 102 that he would be leaving the facility that day.  According to Mr. Arms, Administrator Hall asked Resident 102, “do you know the reason why we’re here?”  Tr. 147.

According to Mr. Arms, after this meeting, he and Resident 102 spoke with Dr. Gurski for about fifteen minutes.  Mr. Arms testified that Dr. Gurski gave him his business card and told Resident 102 that he could call him at any time.  Tr. 149.  Mr. Arms then had a discussion with Nurse Hardy in the hallway regarding Resident 102’s medications.  According to Mr. Arms, Nurse Hardy gave them two documents – “Discharge Instructions for Care” and a “Medication Release/Receipt.”  Tr. 148; CMS Ex. 45 at 2; CMS Ex. 24 at 244-45.  Mr. Arms testified that Nurse Hardy also gave him Resident 102’s remaining medications for the month.  Tr. 150-51; CMS Ex. 24 at 199.  Mr. Arms did not get any prescriptions that could be refilled and was told that he was responsible for obtaining all of the over-the-counter medications.  CMS Ex. 45 at 3; Tr. 149.

There are conflicting versions as to what Nurse Hardy told Mr. Arms regarding Resident 102’s medications.  According to Nurse Hardy, he “went over” Resident 102’s medications and the medication sheet with Mr. Arms and told Mr. Arms when the medications needed to be taken and what they were for.  Tr. 826-27.  According to Nurse Hardy’s nursing note dated April 22, 2015, he “[e]ducated nephew concerning

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medications; administration times and reason for use; nephew voiced understanding,” and he gave the nephew the medication list with directions and medications to last 12 days.  CMS Ex. 24 at 146.  Mr. Arms, however, testified that he “was in such an emotional state” that he did not remember exactly what Nurse Hardy told him.  According to Mr. Arms, Nurse Hardy only told him the names of the medications, but did not discuss anything further, such as side effects or when the medications should be administered.  CMS Ex. 45 at 2-3; Tr. 148-49, 150-51.  Mr. Arms testified that he had to figure out Resident 102’s medication schedule on his own.  CMS Ex. 45 at 3.

Petitioner was well aware that, as Resident 102’s caregiver, Mr. Arms’ responsibilities would entail administering Resident 102’s medications to him.  As a layperson, however, Mr. Arms would have been unfamiliar with Resident 102’s drug regimen and likely would have no idea about how to administer any of the medications correctly.  Moreover, given that Petitioner failed to arrange for any outside nursing or aide services for Resident 102 after he left the facility, its staff had a heightened duty to ensure that Mr. Arms was adequately educated regarding Resident 102’s medications as no one would be helping him with that task.

I have no doubt that Mr. Arms did his best to listen to Nurse Hardy, but at the same time, was overwhelmed by the whole situation involving Resident 102’s sudden discharge.  I find credible Mr. Arms’ testimony that he was not provided with all the information and guidance he needed to safely administer all of Resident 102’s medications to him, and, as a result, was left to figure everything out on his own.  Even if Nurse Hardy had given adequate instructions to Mr. Arms, however, it is not a stretch to say that medication orders can be complicated to follow, especially when many drugs are involved.  If Mr. Arms did not administer Resident 102’s medications properly, Resident 102 was subject to potential harm from the risk of being over or under medicated.  As part of its duty to ensure that Resident 102 was properly prepared for a safe discharge, it was thus incumbent upon Petitioner to ensure that Mr. Arms understood the instructions relating to Resident 102’s numerous medications.  Based on the evidence, I am not persuaded that Petitioner made sufficient efforts to accomplish this objective, thereby failing to ensure that Resident 102 was sufficiently prepared and oriented to be safely discharged from the facility.

Furthermore, despite the fact that Resident 102 was on many medications, including Seroquel and Zoloft for depression, Petitioner did not give him any prescription refills nor did it give him any over-the-counter medications.  As documented on the Medication Release/Receipt, Resident 102 was given a fifteen-day supply of Seroquel (30 pills) and a nine-day supply of Zoloft (nine pills), among other medications.  CMS Ex. 24 at 245.  However, because Petitioner did not give Resident 102 a referral to a mental health professional, Resident 102 had no access to any therapy to manage his depression upon leaving the facility nor did he have any way of obtaining prescriptions for Seroquel and Zoloft once he ran out.  In commenting on Resident 102’s mental health, Mr. Arms

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testified that “Dr. Gurski was concerned [Resident 102] could spiral out of control with the sudden discharge” and noted that no one on Petitioner’s staff had “said anything to [him] about any early signs or symptoms of depression or mania.”  CMS Ex. 45 at 3.  By discharging Resident 102 without any refills for Seroquel and Zoloft or a referral to an outside physician, Petitioner failed to prepare and orient Resident 102 for a safe discharge, and instead created a situation in which his mental health was at risk of serious harm without proper management.

Petitioner offered no evidence that its staff made any efforts to ensure that Resident 102 had any continuity of care following his discharge.  There is no dispute that Petitioner failed to give Resident 102 and Mr. Arms referrals to outside caregivers and medical professionals upon Resident 102’s discharge.  CMS Ex. 45 at 3.  As Resident 102’s discharge MDS indicates, he continued to require the services of a nursing facility.  CMS Ex. 24 at 442-46.  Petitioner, however, made no efforts to ensure that any physician, mental health, nursing or aide services were in place at the time of Resident 102’s discharge, nor did Petitioner assist Resident 102 with obtaining such services after he left the facility.  Petitioner did not even refer Resident 102 to any social service organizations that could help him with his transition to a new setting.  CMS Ex. 45 at 3.  As a result, Resident 102, who had been completely dependent on Petitioner’s staff during his two-and-a-half year stay at the facility, was denied any continuity of care upon his sudden discharge.  Petitioner’s failure to ensure that appropriate arrangements were in place for Resident 102 to care for his many needs demonstrates not only Petitioner’s failure to prepare and orient Resident 102 for a safe discharge, but a complete disregard for his welfare.

I note that the assessment of Resident 102 at the time of his discharge, as described in the Discharge Instructions, is inaccurate and completely inconsistent with the assessment of Resident 102 contained in the discharge MDS.  CMS Ex. 24 at 244, 442-46.  In the Discharge Instructions, Petitioner’s staff indicated that Resident 102 had “no limitations,” could ambulate without assistance, walk and use the stairs, and used a wheelchair and a cane.  Petitioner’s staff indicated further that Resident 102 was independent with his activities of daily living:  he required no assistance with bathing, dressing, feeding, brushing his teeth, shaving, or toilet use.  This description of Resident 102 is obviously inaccurate and suggests that whoever completed the discharge instructions did not even bother to actually examine Resident 102 or his medical record.  The carelessness with which this document was prepared further underscores Petitioner’s failure to prepare and orient Resident 102 for a safe discharge.  I note also that, on this document, there is a section listing options for “referrals for care,” such as “Home Healthcare Agency,” “Meals on Wheels,” or “Senior Citizens Agency.”  However, none of these were checked off by staff.  Instead, staff checked “Other,” noting that Resident 102 was sent home with his nephew.  CMS Ex. 24 at 244.

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Petitioner’s staff apparently did not know where Mr. Arms was taking Resident 102 when they left the facility, but did not really care either, as they made no effort to find out.  Even if Mr. Arms was taking Resident 102 to his home, this did not obviate Petitioner’s duty under 42 C.F.R. § 483.12(a)(7) to assist with obtaining necessary outside services for him and ensuring that they were in place at the time of his discharge.

With respect to CMS’s argument that Resident 102 was also unenrolled from the TennCare CHOICES program as a result of his discharge and lost access to its in-home services, I do not find it necessary to address this argument.  In support of its position, CMS relies on the testimony of Laura Rich, a social counselor with the state agency.  In response to my questioning about Resident 102 and TennCare CHOICES, Ms. Rich, however, stated that she had no direct knowledge and that her information came from another source, which she was not permitted to reveal.  Tr. 446.  I found Ms. Rich’s testimony to be speculative and thus, entitled to little weight.  Moreover, CMS failed to elicit any testimony that the surveyors had considered the TennCare requirements when citing the deficiencies related to Resident 102.  Tr. 969.  I thus find that CMS has offered insufficient evidence to show it was more likely than not that Resident 102 was enrolled in the TennCare CHOICES program while he resided at Petitioner’s facility.  Thus, CMS’s argument regarding TennCare CHOICES and Resident 102 has no bearing on my analysis.

Nothing in the record supports Petitioner’s claim that its staff took appropriate actions relative to Resident 102’s discharge from the facility.  I conclude that CMS has established, and Petitioner failed to rebut, that Petitioner failed to sufficiently prepare and orient Resident 102 to ensure his safe and orderly discharge, in violation of 42 C.F.R. § 483.12(a)(7).

(v.)  The violation of 42 C.F.R. § 483.75 (Tag F490).

The regulation at 42 C.F.R. § 483.75 (Tag F490) requires that Petitioner administer its facility in “a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.”  42 C.F.R. § 483.75.  The Board has held that a determination that a SNF failed to comply substantially with section 483.75 may be derived from findings that the SNF was not in substantial compliance with other participation requirements.  Stone Cnty. Nursing & Rehab. Ctr., DAB No. 2276 at 15 (2009); Life Care Ctr. at Bardstown, DAB No. 2233 at 28 (2009); Britthaven, Inc., DAB No. 2018 at 22 (2006).

The surveyors allege in the SOD that Petitioner violated 42 C.F.R. § 483.75, cross-referencing the allegations under Tags F201, F202, F203, F204, F205, F224, F241, F246, F250, F312, F319, F353, and F356.  CMS Ex. 13 at 96-99.  In this decision, I have concluded that Petitioner violated 42 C.F.R. §§ 483.12(a)(2) (Tag F201), 483.12(a)(3) (Tag F202), 483.12(a)(4)-(6) (Tag F203), and 483.12(a)(7) (Tag F204), and, as discussed

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hereafter, that these deficiencies posed immediate jeopardy to resident health and safety.  I conclude that these violations alone are sufficient evidence that Petitioner failed to administer its facility to ensure that resources were used to attain the highest practicable well-being of its residents.

The evidence shows that Petitioner’s administration, which includes the administrator and the medical director, failed to carry out its duties under the regulations with respect to Resident 102’s discharge.  Without justification and without complying with notice requirements, Petitioner’s administration abruptly discharged Resident 102.  In doing so, Petitioner’s management, in effect, ended any ongoing efforts by its staff to immediately transfer Resident 102 to another long-term care facility.  Although Petitioner’s staff was well aware that Resident 102 continued to require skilled nursing services, they made no efforts to arrange for medical, mental health, aide, or any type of social services following his discharge to ensure some continuity of care.  Petitioner’s staff’s failure to carry out their duty to sufficiently prepare and orient Resident 102 for a safe discharge was directly attributable to Petitioner’s administration, which was interested only in forcing Resident 102 to leave as soon as possible.

Petitioner argues that its Medical Director, Dr. Donald Vollmer, was involved in resident care and quality assurance, and that it had a quality assurance committee which met weekly to address compliance issues.  P. Br. at 30.  Even if this were the case, this does not rebut CMS’s prima facie case that Petitioner was not effectively administered.  It is clear from the evidence that Petitioner’s administration wholly disregarded the regulatory requirements when they discharged Resident 102.  The blatant indifference for Resident 102’s welfare, as evidenced by management’s failure to arrange for access to necessary outside services, potentially put Resident 102 at risk of serious harm or death and clearly shows that Petitioner was not administered so as to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each of its residents.

15.  Petitioner has failed to show that the declaration of immediate jeopardy related to the noncompliance with 42 C.F.R. §§ 483.12(a)(2), (a)(3), (a)(4)-(6), and (a)(7); and 483.75 was clearly erroneous, or that immediate jeopardy was abated prior to termination on June 1, 2015.

The surveyors allege in the SOD that the violations of 42 C.F.R. §§ 483.12(a)(2) (Tag F201), 483.12(a)(3) (Tag F202), 483.12(a)(4)-(6) (Tag F203), and 483.12(a)(7) (Tag F204) posed immediate jeopardy to Resident 102 beginning on April 22, 2015.  The surveyors also allege in the SOD that the violation of 42 C.F.R. § 483.75 (Tag F490) also posed immediate jeopardy to Resident 102 and other residents, beginning on April 22, 2015, based on Petitioner’s aforementioned violations relating to Resident 102 as well as other alleged violations relating to other residents.  The CMS position is that immediate jeopardy continued through the date of termination on June 1, 2015.  Petitioner asserts

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that it was in substantial compliance with Medicare participation requirements, and thus, no immediate jeopardy or a basis for termination existed.  P. Br. at 30.

The CMS determination of immediate jeopardy must be upheld unless Petitioner shows the declaration of immediate jeopardy to be clearly erroneous.  42 C.F.R. § 498.60(c)(2).  CMS’s determination of immediate jeopardy is presumed to be correct, and Petitioner has a heavy burden to demonstrate clear error in that determination.  Yakima Valley Sch., DAB No. 2422 at 8-9 (2011); Cal Turner Extended Care Pavilion, DAB No. 2384 at 14 (2011); Brian Ctr. Health & Rehab./Goldsboro, DAB No. 2336 at 9 (2010) (citing Barbourville Nursing Home, DAB No. 1962 at 11 (2005), aff’d, Barbourville Nursing Home v. U.S. Dep’t of Health & Human Srvs.,174 F. App’x 932 (6th Cir. 2006)); Maysville Nursing & Rehab. Facility, DAB No. 2317 at 11 (2010); Liberty Commons Nursing & Rehab Ctr. – Johnston, DAB No. 2031 at 18-19 (2006), aff’d, Liberty Commons Nursing & Rehab Ctr.–Johnston v. Leavitt, 241 F. App’x 76 (4th Cir. 2007).  “Once CMS presents evidence supporting a finding of noncompliance, CMS does not need to offer evidence to support its determination that the noncompliance constitutes immediate jeopardy; rather, the burden is on the facility to show that that determination is clearly erroneous.”  Cal Turner, DAB No. 2384 at 14-15; Liberty Commons, 241 F. App’x at 81.

“Immediate jeopardy” under the regulations refers to “a situation in which 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, 489.3 (emphasis in original).  In the context of survey, certification, and enforcement related to SNFs and NFs under the regulations, a conclusion by the state agency and CMS that noncompliance with program participation requirements poses immediate jeopardy to the facility residents triggers specific regulatory provisions that require enhanced enforcement remedies, including authority for CMS to impose a larger CMP than may be imposed when there is no declaration of immediate jeopardy.  42 C.F.R. §§ 488.408(e), 488.438(a)(1)(i), (c), (d).  The regulations also require termination of the facility’s provider agreement on an expedited basis or the removal of the immediate jeopardy through appointment of temporary management.  42 C.F.R. §§ 488.410, 488.440(g), 488.456, 489.53(d)(2)(ii).

Many appellate panels of the Board have addressed “immediate jeopardy.”17 In

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Mississippi Care Center of Greenville, DAB No. 2450 at 15 (2012), the Board commented:

CMS’s determination that a deficiency constitutes immediate jeopardy must be upheld unless the facility is able to prove that the determination is clearly erroneous.  42 C.F.R. § 498.60(c)(2); Woodstock Care Center.  The “clearly erroneous” standard means that CMS’s immediate jeopardy determination is presumed to be correct, and the burden of proving the determination clearly erroneous is a heavy one.  See, e.g., Maysville Nursing & Rehabilitation Facility, DAB No. 2317, at 11 (2010); Liberty Commons Nursing and Rehab Center – Johnston, DAB No. 2031, at 18 (2006), aff’d, Liberty Commons Nursing and Rehab Ctr. – Johnston v. Leavitt, 241 F. App’x 76 (4th Cir. 2007).  When CMS issued the nursing facility survey, certification, and enforcement regulations, it acknowledged that “distinctions between different levels of noncompliance . . . do not represent mathematical judgments for which there are clear or objectively measured boundaries.”  59 Fed. Reg. 56,116, 56,179 (Nov. 10, 1994).  “This inherent imprecision is precisely why CMS’s immediate jeopardy determination, a matter of professional judgment and expertise, is entitled to deference.”  Daughters of Miriam Center, DAB No. 2067, at 15 (2007).

The Board’s statement that the CMS immediate jeopardy determination is entitled to deference is subject to being misunderstood to limit ALJ and Board review of immediate jeopardy beyond what was intended by the drafters of the regulations.  In the notice of final rulemaking on November 10, 1994, the drafters of 42 C.F.R. § 498.60(c)(2), discussing the merits of the reviewability of deficiency citations, selection of remedy, and scope and severity, commented:

We believe that a provider’s burden of upsetting survey findings relating to the level of noncompliance should be

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high, however.  As we indicated in the proposed rule, distinctions between different levels of noncompliance, whether measured in terms of their frequency or seriousness, do not represent mathematical judgments for which there are clear or objectively measured boundaries.  Identifying failures in a facility’s obligation to provide the kind of high quality care required by the Act and the implementing regulations most often reflect judgments that will reflect a range of noncompliant behavior.  Thus, in civil money penalty cases, whether deficiencies pose immediate jeopardy, or are widespread and cause actual harm that is not immediate jeopardy, or are widespread and have a potential for more than minimal harm that is not immediate jeopardy does not reflect that a precise point of noncompliance has occurred, but rather that a range of noncompliance has occurred which may vary from facility to facility.  While we understand the desire of those who seek the greatest possible consistency in survey findings, an objective that we share, the answer does not lie in designing yardsticks of compliance that can be reduced to rigid and objectively calculated numbers.  Survey team members and their supervisors ought to have some degree of flexibility, and deference, in applying their expertise in working with these less than perfectly precise concepts.  For these reasons, we have revised the regulations to require an administrative law judge or appellate administrative review authority to uphold State or HCFA findings on the seriousness of facility deficiencies in civil money penalty cases unless they are clearly erroneous.

59 Fed. Reg. 56,116, 56,179 (Nov. 10, 1994) (emphasis added).  It is clear from this regulatory history that the drafters of 42 C.F.R. § 498.60(c)(2) ensured that the state agency or CMS determination that there was immediate jeopardy would receive deferential consideration, by adopting the clearly erroneous standard of review.  Thus, caution must be exercised to ensure that the Board’s decisions in Mississippi Care Center of Greenville, Daughters of Miriam Center, and other decisions that have mentioned deference relative to immediate jeopardy not be read to require deference for the determination that there was immediate jeopardy beyond that imposed by adoption of the clearly erroneous standard.  Giving deference to the immediate jeopardy determination or requiring that it be given deference in addition to applying the “clearly erroneous” standard would be contrary to the intent of the drafters of the regulation; would significantly limit the review of the determination by an ALJ and the Board; and would

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impermissibly deny an affected party the due process right to review intended by the drafters of the regulation.

In the foregoing quotation from Mississippi Care Center of Greenville, that panel of the Board states that the clearly erroneous standard means that “the immediate jeopardy determination is presumed to be correct, and the burden of proving the determination clearly erroneous is a heavy one.”  DAB No. 2450 at 15.  Similar formulations have been used in other Board decisions when referring to the “clearly erroneous standard.”  However, the Board’s characterization of the “clearly erroneous standard” in Mississippi Care Center and other cases does not define the standard.  The “clearly erroneous standard” is described in Black’s Law Dictionary as a standard of appellate review applied in judging the trial court’s treatment of factual issues, under which a factual determination is upheld unless the appellate court has the firm conviction that an error was committed.  Black’s Law Dictionary 269 (8th ed. 2004).  The Supreme Court has addressed the “clearly erroneous standard” in the context of the Administrative Procedure Act (APA).  The Court described the preponderance of the evidence standard, the most common standard, as requiring that the trier-of-fact believe that the existence of a fact is more probable than not before finding in favor of the party that had the burden to persuade the judge of the fact’s existence.  In re Winship, 397 U.S. 358, 371-72 (1970) (Harlan, J., concurring); Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers, 508 U.S. 602, 622 (1993).  The “substantial evidence” standard considers whether a reasonable mind might accept a particular evidentiary record as adequate to support a conclusion.  Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938); Dickinson v. Zurko, 527 U.S. 150, 162 (1999).  Under the “clearly erroneous” standard a finding is clearly erroneous even though there may be some evidence to support it if, based on all the evidence, the reviewing judge or authority has a definite and firm conviction that an error has been committed.  United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Dickinson, 527 U.S. at 162; Concrete Pipe, 508 U.S. at 622.  The clearly erroneous standard has been characterized by the Court as being stricter than the substantial evidence test and significantly deferential.  In discussing the clearly erroneous standard, the Court stressed the importance of not simply rubber-stamping agency fact-finding.  The Court also commented that the APA requires meaningful review.18 Dickinson, 527 U.S. at 162; Concrete Pipe, 508 U.S. at 622-23.

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Various panels of the Board have recognized other principles applicable to the review of the immediate jeopardy issue.  A finding of immediate jeopardy does not require a finding of actual harm, only a likelihood of serious harm.  Dumas Nursing & Rehab., L.P., DAB No. 2347 at 19 (2010) (citing Life Care Ctr. of Tullahoma, DAB No. 2304 at 58 (2010), aff’d, Life Care Ctr. of Tullahoma v. Sec’y of U.S. Dep’t of Health & Human Servs., 453 F. App’x 610).  The definition of immediate jeopardy at 42 C.F.R. § 488.301 does not define “likelihood” or establish any temporal parameters for potential harm.  Agape Rehab. of Rock Hill, DAB No. 2411 at 18-19 (2011).  The duration of the period of immediate jeopardy is also subject to the clearly erroneous standard.  Brian Ctr. Health & Rehab./Goldsboro, DAB No. 2336 at 7-8.  There is a difference between “likelihood” as required by the definition of immediate jeopardy and a mere potential.  The synonym for likely is probable, which suggests a greater degree of probability that an event will occur than suggested by such terms as possible or potential.  Daughters of Miriam Ctr., DAB No. 2067 at 10.  Jeopardy generally means danger, hazard, or peril.  The focus of the immediate jeopardy determination is how imminent the danger appears and how serious the potential consequences.  Woodstock Care Ctr., DAB No. 1726.

What is the meaning of serious injury, harm, or impairment as used in the definition of immediate jeopardy found in 42 C.F.R. § 488.301?  How does serious injury, harm, or impairment compare with “actual harm”?  On the first question the Board recognized in Yakima Valley School, DAB No. 2422 at 8, that the regulations do not define or explain the meaning of the term “serious” as used in the definition of immediate jeopardy.19  The Board suggested that the definitions may be unimportant because the Board has held that,

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under the clearly erroneous standard, once the state agency or CMS declares immediate jeopardy there is a presumption that the actual or threatened harm was serious and the facility can only rebut the presumption of immediate jeopardy by showing that the harm or threatened harm meets no reasonable definition of the term “serious.”  Id. (citing Daughters of Miriam Ctr., DAB No. 2067 at 9).  In Daughters of Miriam Center, the Board discussed that the ALJ attempted to define “serious,” finding meanings such as dangerous, grave, grievous, or life threatening.  The Board noted that the ALJ stated that serious harm is outside the ordinary, requiring extraordinary care, or having lasting consequences.  The Board further noted that the ALJ stated that a serious injury may require hospitalization, result in long-term impairment, or cause severe pain, as opposed to harm, injury, or impairment that is temporary, easily reversible with ordinary care, does not cause a period of incapacitation, heals without special medical intervention, or does not cause severe pain.  The Board did not endorse or adopt the ALJ’s definitional exercise but concluded that it was simply unnecessary in the context of that case.  The Board reasoned, as already noted, that the facility bore the burden to rebut the presumption by showing that the actual or threatened harm met no reasonable definition of serious.  Daughters of Miriam Ctr., DAB No. 2067 at 9-10.

Applying the clearly erroneous standard to the record before me related to the noncompliance I have found, I have no definite and firm conviction that an error has been committed.  I conclude, considering the facts detailed regarding the situation with Resident 102, that Petitioner has failed to show that the declaration of immediate jeopardy for the deficiencies under 42 C.F.R. §§ 483.12(a)(2), (a)(3), (a)(4)-(6), and (a)(7) was clearly erroneous.

With respect to 42 C.F.R. § 483.75, in my analysis above, I examined only the cross-referenced deficiencies involving Resident 102 and concluded that Petitioner’s violations of 42 C.F.R. §§ 483.12(a)(2), (a)(3), (a)(4)-(6), and (a)(7) alone were sufficient to show a failure of administration and a violation of 42 C.F.R. § 483.75.  Thus, I also conclude that Petitioner has also failed to show that the declaration of immediate jeopardy under 42 C.F.R. § 483.75 was clearly erroneous.

16.  A CMP of $200 per day from December 19, 2014 through January 25, 2015; a CMP of $1200 per day from January 26, 2015 through February 24, 2015; a CMP of $2050 per day from February 25, 2015 through April 21, 2015; a CMP of $6800 per day from April 22, 2015 through June 1, 2015; a DPNA from December 13, 2014 through termination on June 1, 2015, are reasonable enforcement remedies.

17.  Termination of Petitioner’s provider agreement and participation in Medicare on June 1, 2015, after six months of noncompliance that began on December 1, 2014, was mandated by section 1819(h)(2)(C) of the Act.

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I have concluded that Petitioner was not in substantial compliance with participation requirements for the entire period beginning December 1, 2014 through termination on June 1, 2015.  I have also concluded that the declaration of immediate jeopardy related to Petitioner’s violations from the May 22, 2015 survey was not clearly erroneous.  Therefore, CMS has bases to impose enforcement remedies.

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, including a CMP.  CMS may impose a per-day CMP for the number of days that the facility is not in compliance or a per-instance CMP for each instance that a facility is not in substantial compliance, whether or not the deficiencies pose immediate jeopardy.  42 C.F.R. § 488.430(a).  The regulations specify that a CMP that is imposed against a facility on a per day basis will fall into one of two ranges of penalties.  42 C.F.R. §§ 488.408, 488.438.  The upper range of a CMP, $3,050 per day to $10,000 per day, 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 CMPs, $50 per day to $3,000 per day, 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).

If I conclude, as I have in this case, that there is a basis for the imposition of an enforcement remedy and the remedy proposed is a CMP, my authority to review the reasonableness of the CMP is limited by 42 C.F.R. § 488.438(e).  The limitations are:  (1) I may not set the CMP at zero or reduce it to zero; (2) I may not review the exercise of discretion by CMS in selecting to impose a CMP; and (3) I may only consider the factors specified by 42 C.F.R. § 488.438(f) when determining the reasonableness of the CMP amount.  In determining whether the amount of a CMP is reasonable, the following factors specified at 42 C.F.R. § 488.438(f) must be considered:  (1) the facility’s history of noncompliance, including repeated deficiencies; (2) the facility’s financial condition; (3) the seriousness of the deficiencies as set forth at 42 C.F.R. § 488.404(b), the same factors CMS and/or the state were to consider when setting the CMP amount; and (4) the facility’s degree of culpability, including but not limited to the facility’s neglect, indifference, or disregard for resident care, comfort, and safety, and the absence of culpability is not a mitigating factor.  The factors that CMS and the state were required to consider when setting the CMP amount and that I am required to consider when assessing the reasonableness of the amount are set forth in 42 C.F.R. § 488.404(b):  (1) whether the deficiencies caused no actual harm but had the potential for minimal harm, no actual harm with the potential for more than minimal harm, but not immediate jeopardy, actual harm that is not immediate jeopardy, or immediate jeopardy to resident health and safety; and (2) whether the deficiencies are isolated, constitute a pattern, or are widespread.  My review of the reasonableness of the CMP is de novo and based upon the evidence in the

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record before me.  I am not bound to defer to the CMS determination of the reasonable amount of the CMP to impose but my authority is limited by regulation as already explained.  I am to determine whether the amount of any CMP proposed is within reasonable bounds considering the purpose of the Act and regulations.  Emerald Oaks, DAB No. 1800 at 10 (2001); CarePlex of Silver Spring, DAB No. 1683 at 14-16 (1999); Capitol Hill Cmty. Rehab. & Specialty Care Ctr., DAB No. 1629 (1997).

CMS proposed the following CMPs based on noncompliance during the survey cycle: 

$10,000 per instance CMP (not at issue due to Petitioner’s February 4, 2015 waiver of ALJ review)

$150 per day CMP effective December 11, 2014 through December 18, 2014 (not at issue due to Petitioner’s February 4, 2015 waiver of ALJ review)

$200 per day CMP effective December 19, 2014 through January 25, 2015

$1200 per day CMP effective January 26, 2015 through February 24, 2015

$2,050 per day CMP effective February 25, 2015 through April 21, 2015

$6,800 per day CMP effective April 22, 2015 through June 1, 2015.

CMS did not set out these CMP amounts anywhere in its post-hearing briefing nor has it provided the total amount of the CMP imposed against Petitioner.  CMS only asserted that “[t]he discretionary DPNA and the CMP apply for the entire survey cycle, as multiple surveys establish that [Petitioner] was out of substantial compliance throughout the period.”  CMS Br. at 2.

The $200 per day CMP, which CMS proposed following the January 29, 2015 survey, is at the low end of the lower range of CMPs authorized.  The $1200 per day CMP, which CMS proposed following the March 4, 2015 survey, is in the middle of the lower range of CMPs authorized.  The $2050 per day CMP, which CMS proposed following the March 20, 2015 survey, is near the maximum per day amount of $3000 for the lower CMP range.  The $6800 per day CMP proposed following the May 22, 2015 survey for the period of immediate jeopardy falls in the middle of the range of CMPs authorized when there is immediate jeopardy.  I conclude that these per day CMPs are reasonable.

Other than the surveys comprising the survey cycle at issue in this case, CMS has not offered any evidence of a history of noncompliance.  Petitioner has not argued or submitted evidence that its financial condition requires consideration of a lesser total CMP.

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Petitioner’s noncompliance was serious, as it caused actual harm or posed immediate jeopardy.  As demonstrated by several deficiency citations from the March 2015 surveys, some of Petitioner’s residents suffered actual harm.  Petitioner’s failure to comply with the discharge requirements resulted in a situation of immediate jeopardy for Resident 102.  I conclude further that Petitioner’s treatment of Resident 102, in particular, shows that it was highly culpable.  As discussed above, Petitioner’s staff, with management’s approval, abruptly and without any justification discharged Resident 102, and, in doing so, failed to ensure that he was sufficiently prepared to be discharged to the community.  The fact that Petitioner made no arrangements for Resident 102 to receive any medical, psychological, or home health or aide services demonstrated a complete disregard for Resident 102’s well-being once he left the facility and placed him at the risk of suffering serious harm.  In light of the relevant factors, I conclude that the proposed per day CMPs are reasonable enforcement remedies.  I also conclude that CMS was authorized to impose a DPNA beginning December 13, 2014 through termination on June 1, 2015, and that the DPNA is a reasonable enforcement remedy.

Petitioner failed to return to substantial compliance between December 1, 2014 and June 1, 2015.  The Act requires that the Secretary terminate the Medicare participation of any SNF that does not return to substantial compliance with participation requirements within six months of being found not to be in substantial compliance.  Act § 1819(h)(2)(C).  The termination of Petitioner’s provider agreement and participation in Medicare was thus required by law, and there is no issue as to its reasonableness as an enforcement remedy.

Petitioner’s arguments that Petitioner’s termination was a discretionary termination rather than a mandatory termination (Tr. 34-35) are without merit.  In this case, there is an unbroken period of noncompliance lasting six months, which means that termination was mandated by the Act, and the Secretary and CMS had no discretion to exercise.

18.  Other defenses and issues raised by Petitioner are without merit or are not within my authority to decide.

In its April 10, 2015 and June 9, 2015 requests for hearing, Petitioner objected to the Board practice, as reflected in decisions of the Board, of allocating the burden of proving substantial compliance to Petitioner arguing that it amounts to a violation of 5 U.S.C. § 556(d).  Petitioner argues that allocating the burden of persuasion to Petitioner allows the Board to minimize or disregard Petitioner’s evidence of compliance and deprives Petitioner of its property without due process, and allows CMS to impose enforcement remedies without requiring CMS to show that it considered the regulatory criteria for imposing remedies required by 42 C.F.R. §§ 488.404 and 488.438(f).  April 10 RFH at 15; June 9 RFH at 4, 23.

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a.  Allocation of the Burden of Persuasion

Petitioner argues that the allocation of the burden of persuasion in this case, according to the rationale of the Board in the prior decisions cited above, deprives Petitioner of its property without due process of law and violates the APA, 5 U.S.C. § 551 et. seq., specifically 5 U.S.C. § 556(d).  April 10 RFH at 15; June 9 RFH at 23.  Pursuant to the scheme for the allocation of burdens adopted by the Board in its prior cases, CMS bears the burden to come forward with the evidence and to establish a prima facie showing of the alleged regulatory violations in this case by an unspecified quantum of evidence.  If CMS makes its prima facie showing, Petitioner has the burden of coming forward with any evidence in rebuttal and the burden of showing by a preponderance of the evidence that it was in substantial compliance with program participation requirements.  Petitioner bears the burden to establish by a preponderance of the evidence any affirmative defense.  The allocation of burdens suggested by the Board is not inconsistent with due process or the requirements of 5 U.S.C. § 556(d), as CMS is required to come forward with the evidence that establishes its prima facie case.

Board decisions are not binding precedent and are only retrospective in application.  In each case that I decide, I must re-examine the rationale of the Board for its interpretive rule allocating the burden of persuasion to determine whether the Board decision is persuasive precedent.  I see no reason to upset the allocation as described by the Board given that I am satisfied that the CMS prima facie case is supported by a preponderance of the evidence in this case and Petitioner has not met its burden to rebut the CMS case by a preponderance of the evidence or to establish an affirmative defense.

b.  Regulatory Factors Related to Enforcement Remedies Are Reviewed De Novo

Petitioner also argues that the Medicare Act is violated and Petitioner is deprived of due process if CMS is not required to submit evidence to prove it considered the regulatory criteria established by 42 C.F.R. §§ 488.404 and 488.438(f) in determining enforcement remedies.  April 10 RFH at 15; June 9 RFH at 23.  I reviewed the evidence related to the regulatory factors de novo and perceive no prejudice to Petitioner because I did not require CMS to submit evidence related to its consideration of the regulatory factors.

III.  Conclusion

For the foregoing reasons, I conclude that Petitioner was not in substantial compliance with program participation requirements from December 1, 2014 through June 1, 2015.  I also conclude that the following are reasonable enforcement remedies:  1) termination of Petitioner’s provider agreement and Medicare participation effective June 1, 2015, was reasonable as a matter of law as it was mandated by the Act; 2) a CMP of $200 per day from December 19, 2014 through January 25, 2015; a CMP of $1200 per day from

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January 26, 2015 through February 24, 2015; a CMP of $2050 per day from February 25, 2015 through April 21, 2015; and a CMP of $6800 per day from April 22, 2015 through June 1, 2015; and 3) a DPNA effective December 13, 2014 through termination on June 1, 2015.

• 1. References are to the 2014 revision of the Code of Federal Regulations (C.F.R.), unless otherwise indicated.
• 2. Petitioner agrees that it waived review of: the citations of deficiencies by the December 1 and 17, 2014 surveys, the scope and severity determinations as to each deficiency citation from both surveys, the $10,000 per instance CMP, the $150 per-day CMP from December 11 through 18, 2014, and the DPNA from December 13 through 18, 2014. Tr. 52-54; PPFFCL at 2-3 ¶¶ 11-12.
• 3. Participation of a NF in Medicaid is governed by section 1919 of the Act. Section 1919(h)(2) of the Act gives enforcement authority to the states to ensure that NFs comply with their participation requirements established by sections 1919(b), (c), and (d) of the Act.
• 4. “Credible evidence” is “[e]vidence that is worthy of belief; trustworthy evidence.” Black’s Law Dictionary 596 (8th ed. 2004). The “weight of evidence” is the “persuasiveness of some evidence in comparison with other evidence . . . .” Id. at 1625.
• 5. This is a “Tag” designation as used in CMS Pub. 100-07, State Operations Manual (SOM), app. PP – Guidance to Surveyors for Long Term Care Facilities (http://www.cms.hhs.gov/Manuals/IOM/list.asp). The “Tag” refers to the specific regulatory provision allegedly violated and CMS’s policy guidance to surveyors. Although the SOM does not have the force and effect of law, the provisions of the Act and regulations interpreted clearly do have such force and effect. Ind. Dep’t. of Pub. Welfare v. Sullivan, 934 F.2d 853 (7th Cir. 1991); Nw. Tissue Ctr v. Shalala, 1 F.3d 522 (7th Cir. 1993). Thus, while the Secretary may not seek to enforce the provisions of the SOM, he may seek to enforce the provisions of the Act or regulations as interpreted by the SOM.
• 6. CMS and the state agency use scope and severity levels to select enforcement remedies. The scope and severity level is designated by an alpha character, A through L, selected by CMS or the state agency from the scope and severity matrix published in the SOM, Chap. 7, § 7400E. A scope and severity level of A, B, or C indicates a deficiency that presents no actual harm but has the potential for minimal harm, which is an insufficient basis for imposing an enforcement remedy. Facilities with deficiencies of a level no greater than C remain in substantial compliance. 42 C.F.R. § 488.301. A scope and severity level of D, E, or F indicates a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy. A scope and severity level of G, H, or I indicates a deficiency that involves actual harm that does not amount to immediate jeopardy. Scope and severity levels J, K, and L are deficiencies that constitute immediate jeopardy to resident health or safety. The matrix, which is based on 42 C.F.R. § 488.408, specifies which remedies are required and optional at each level based upon the frequency of the deficiency.
• 7. The CMS arguments are confused regarding the basis for termination of Petitioner’s provider agreement and participation in Medicare. The arguments of counsel for CMS can be understood to be that Petitioner was terminated solely based on the deficiency citations from the survey concluded on May 22, 2015. CMS Br.; CMS Reply. If that is CMS’ position, it is inconsistent with the evidence. The evidence shows that CMS notified Petitioner of mandatory termination pursuant to section 1819(h)(2)(C) of the Act and 42 C.F.R. § 488.412(a), triggered by six months during which Petitioner did not return to substantial compliance, rather than discretionary termination based only on the noncompliance and immediate jeopardy cited by the survey ended on May 22, 2015. CMS Exs. 16 at 2 (mandatory termination effective June 1, 2015); 17 at 2 (mandatory termination effective June 1, 2015, based on initial finding of noncompliance on December 1, 2014); 18 at 2 (termination effective June 1, 2015). I certainly agree with counsel for CMS that CMS has such discretion and that the Board has recognized such discretion exists under the Act and regulations. 42 C.F.R. §§ 488.410(a) (terminate provider agreement within 23 days of survey if immediate jeopardy is not abated); 488.456(b)(1)(i). But there is no need to resort to such alternate theories where, as here, the CMS notices are consistent with mandatory termination and such is supported by the evidence. Because I conclude that termination was mandatory on the facts of this case, Petitioner’s suggestions that CMS somehow abused its discretion to terminate are without merit.
• 8. Petitioner has insinuated throughout this case in the requests for hearing, various pleadings, and in comments at hearing that the fact the state agency and CMS have looked back to the fall of 2014, is evidence of some unspecified misconduct or abuse of discretion. Petitioner overlooks that the SODs for the surveys of December 1 and 17, 2014, allege that noncompliance and immediate jeopardy actually began on October 12, 2014. CMS Exs. 1 at 2; 3 at 2. Petitioner waived review as to both surveys and the fact that noncompliance began October 12, 2014, is undisputed before me. Because it is undisputed that noncompliance identified in this survey cycle began October 12, 2014, it is perfectly logical and understandable that CMS would look back to October 12, 2014, and perhaps as early as the last standard survey to identify instances of noncompliance. See e.g. SOM, para. 7510.1 (rev. 63, eff. Sep. 10, 2010) (discussing finding past noncompliance (already corrected when identified by surveyors) or current noncompliance (not corrected when identified) between current survey and last standard survey).
• 9. CMS did, however, address this deficiency in its proposed findings of fact and conclusions of law, which shows that CMS did not intend to waive the deficiency citation. CMS Proposed Findings of Fact ¶¶ 32-35; CMS Proposed Conclusions of Law ¶¶ 36-37.
• 10. Petitioner’s infection control policy was not offered as evidence by either party.
• 11. The nursing note documenting Resident 102’s visit to the hospital is dated April 22, 2015 at 4:45 p.m., and states that Resident 102 was taken to Skyline ER. CMS Ex. 24 at 146. At the hearing, in response to my questioning, Petitioner’s DON, Lucy James, testified that she believed the date on this entry was wrong since Resident 102 went to the hospital on April 21 and left the facility on April 22. Tr. 959. I find further support for finding that the date on the nursing note is an error in that Resident 102’s physician’s order sending him to the hospital and the Social Service progress note documenting the visit are dated April 21, 2015. CMS Ex. 24 at 184-85.
• 12. The manner in which Resident 102 received this notice from Petitioner is unknown. The local long-term care ombudsman was also a recipient of this document. CMS Ex. 24 at 393.
• 13. Mr. Hall served as Petitioner’s administrator from December 2014 to March 2015. Tr. 1035-36. Mr. Hogan became Petitioner’s administrator on about April 1, 2015, replacing Mr. Hall, who became an assistant administrator. Tr. 735, 1035-36.
• 14. According to Administrator Hogan, Resident 102 expressed to him that he would be willing to go to another Signature Healthcare facility in Monteagle. Tr. 761. Administrator Hogan apparently attempted to arrange the transfer himself, but said that “Monteagle initially turned [him] down” and he asked Joseph Steier, Signature’s President and CEO, about possibly intervening with their facility’s administration. Tr. 761. It is unclear from the record when Administrator Hogan contacted the Monteagle facility.
• 15. The regulation at 42 C.F.R. § 483.20(l) requires:
  
  Discharge summary. When the facility anticipates discharge a resident must have a discharge summary that includes—
• 16. TennCare is the name of the State of Tennessee’s Medicaid program. The TennCare Choices program is administered through TennCare.
• 17. Decisions often cited include: Lakeport Skilled Nursing Ctr., DAB No. 2435 at 7 (2012); Liberty Health & Rehab of Indianola, LLC, DAB No. 2434 at 13, 18-19 (2011); Yakima Valley Sch., DAB No. 2422 at 8; Lutheran Home at Trinity Oaks, DAB No. 2111 (2007); Britthaven of Havelock, DAB No. 2078 (2007); Daughters of Miriam Ctr., DAB No. 2067; Koester Pavilion, DAB No. 1750; Woodstock Care Ctr., DAB No. 1726 at 39.
• 18. The Board’s characterization of the clearly erroneous standard as being highly deferential to the fact-finding by the state agency surveyor and CMS, and even triggering a rebuttal presumption, is entirely consistent with the Supreme Court’s characterization of the standard. However, the Court’s cautions about ensuring meaningful review rather than rubber-stamping agency decisions show it is important for the ALJ and the Board not to be tempted to simply defer to the surveyor, the state agency, or CMS on the immediate jeopardy issue.
• 19. Appendix Q of the SOM also fails to provide surveyors a working definition of the term “serious” that they can use to determine whether harm, injury, or impairment is serious when deciding whether or not to declare immediate jeopardy. The Act does not define the phrase “immediately jeopardize” and does not introduce the concept of serious harm, injury, or impairment as the basis for finding immediate jeopardy. Thus, one is not in error concluding that absent a definition of the term “serious” in the Act, the regulations, the SOM, or decisions of the Board, it is essentially up to individual surveyors, who rely on whatever unpublished guidance they receive from their superiors or CMS officials, to exercise their individual discretion and judgment to decide that there was immediate jeopardy, which subjects a facility to the maximum imposable CMPs.