Park Village Health Care Center, Inc., DAB CR5226 (2019)

DECISION

Petitioner, Park Village Health Care Center, Inc. (Petitioner or “the facility”), is a long-term care facility that participates in the Medicare program. Based on a survey that was completed on March 7, 2017, the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner was not in substantial compliance with Medicare participation requirements. CMS imposed against Petitioner a per-instance civil money penalty (CMP) of $19,921. For the reasons discussed below, I find that there is no genuine dispute as to any material fact, and CMS is entitled to judgment as a matter of law. Petitioner was not in substantial compliance with Medicare program requirements, and the $19,921 CMP is reasonable.

I. Background

The Social Security Act (Act) sets requirements for skilled nursing facility (SNF) participation in the Medicare program. The Act authorizes the Secretary of the United States Department of Health & Human Services (Secretary) to promulgate regulations implementing those statutory provisions. Act § 1819 (42 U.S.C. § 1395i-3). The Secretary’s regulations are found at 42 C.F.R. part 483.

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A facility must maintain substantial compliance with program requirements in order to participate in the program. To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.” 42 C.F.R. § 488.301.

The Secretary contracts with state agencies to conduct periodic surveys to determine whether skilled nursing facilities (SNFs) are in substantial compliance with the participation requirements. Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20. The Act and its implementing regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected. Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.

Surveyors from the Ohio Department of Health (“DOH” or “state agency”) completed an extended annual survey of Petitioner on March 7, 2017. The state agency found that the facility was not in substantial compliance and the cited deficiencies constituted immediate jeopardy.1 CMS Exhibit (CMS Ex.) 2 at 1-2. As relevant for purposes of this decision,2 CMS determined that the facility was not in substantial compliance with the participation requirement for quality of care (Tag F309, 42 C.F.R. §§ 483.24, 483.25 at the “J” level of scope and severity).3 Further, CMS determined that the noncompliance constituted substandard quality of care to residents’ health and safety. By letter dated June 22, 2017, CMS imposed a per-instance CMP in the amount of $19,921. CMS Ex. 1. In addition, CMS informed Petitioner that it would be prohibited from offering or conducting a Nurse Aide Training and/or Competency Evaluation Program (NATCEP) for two years, effective March 7, 2017. CMS Ex. 1 at 4.

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On August 17, 2017, Petitioner requested an administrative law judge (ALJ) hearing. Pursuant to my Acknowledgment and Pre-Hearing Order, CMS submitted a pre-hearing brief (CMS Br.) incorporating a motion for summary judgment, along with 17 exhibits (CMS Exs. 1-17). Petitioner filed a pre-hearing brief (P. Br.) incorporating a motion for summary judgment, and also submitted 12 exhibits (P. Exs. 1-12). In the absence of any objections, I admit all proposed exhibits into the evidentiary record.

II. Issues

The following issues will be addressed in this decision:

1. Is summary judgment appropriate;
2. Was Petitioner in substantial compliance with the participation requirement of quality of care (42 C.F.R. §§ 483.24, 483.25);
3. If Petitioner was not in substantial compliance, is CMS’s determination that the deficiency posed immediate jeopardy to resident health and safety subject to review; 
4. Is the CMP of $19,921 reasonable.

III. Findings of Fact and Conclusions of Law

A. Summary judgment is appropriate because material facts are not in dispute.

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 19-20 (2010), aff’d, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F. App’x 820 (5th Cir. 2010); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party must show that there are no genuine issues of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law. Anderson, 477 U.S. at 248. If the moving party meets its initial burden, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial . . . .’” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). “To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under governing law.” Senior Rehab., DAB No. 2300 at 3. In determining whether there are genuine issues of material fact for hearing, an ALJ must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor. Id.

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Petitioner does not dispute any of the following material facts cited by CMS in its motion for summary judgment:

• Resident # 128 had requested full code status;
• Petitioner’s policy directed that a resident’s choice of end-of-life measures would be recorded in a social service note;
• Social service notes document that Resident # 128 requested full code status;
• Resident # 128 did not have a do-not-resuscitate (DNR) order in her file;
• Petitioner did not provide any medical interventions when Resident # 128 became unresponsive, had a faint heart rate, shallow breaths, and no detectable blood pressure, and Petitioner did not attempt to resuscitate Resident # 128 after she stopped breathing and no longer had a pulse.

Petitioner did not present argument, much less evidence, to rebut these material facts. Therefore, material facts are not in dispute and summary judgment is appropriate in favor of CMS.4

B. Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.24 and 483.25 because it did not comply with its own advance directives/right to choose policy, nor did it comply with Resident # 128’s stated end-of-life wishes.5

Pursuant to 42 C.F.R. § 483.24, which implements section 1819(b)(2) of the Act, “[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, consistent with the resident’s comprehensive assessment and plan of care.” Additionally, 42 C.F.R. § 483.25 requires that a facility “must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices . . . .” The quality of care legislation and regulatory requirements are “based on the premise that the facility has (or can contract for) the expertise to first assess what each resident’s needs are (in order to attain or maintain the resident’s highest practicable functional level) and then to plan for

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and provide care and services to meet the goal.” Spring Meadows Health Care Ctr., DAB No. 1966 at 16 (2005). The regulation thus “imposes on facilities an affirmative duty designed to achieve favorable outcomes to the highest practicable degree.” Windsor Health Care Ctr., DAB No. 1902 at 16-17 (2003), aff’d, Windsor Health Care Ctr. v. Thompson, No. 04-3018 (6th Cir. 2005). The facility must take reasonable steps and all practicable measures to achieve that regulatory end. Clermont Nursing & Convalescent Ctr., DAB No. 1923 at 21 (2004), aff’d, Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F. App’x 900 (6th Cir. 2005).

The Departmental Appeals Board (DAB) has concluded that the quality of care regulation6 requires skilled nursing facilities to furnish the care and services set forth in a resident’s care plan and to implement doctors’ orders, monitor and document the resident’s condition, and follow its own policies. See, e.g., Alexandria Place, DAB No. 2245 at 7-8 (2009) (upholding a deficiency when a petitioner did not provide care in accordance with a doctor’s order); Oxford Manor, DAB No. 2167 at 5-6 (2008) (affirming an ALJ’s reliance on a facility’s policy as evidence of the standard of care the facility expected its staff to provide). The quality of care provision also implicitly imposes on facilities a duty to provide care and services that, at a minimum, meet accepted professional standards of quality “since the regulations elsewhere require that the services provided or arranged by the facility must meet such standards.” Spring Meadows, DAB No. 1966 at 17, citing 42 C.F.R. § 483.25.

I make the following factual findings that will be addressed more fully below:

1. 1. Petitioner’s policy directs that end-of-life directives will be documented in a social service note.
2. 2. A January 12, 2017 social service note documented that Resident # 128 had requested “full code” status.
3. 3. A January 17, 2017 social service note documented that Resident # 128 had requested “full code” status.
4. 4. On January 17, 2017, Resident # 128 executed a living will which would take effect only if she were in a terminal condition or permanently unconscious state and was unable to give directions regarding life-sustaining treatment.

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5. 5. On January 17, 2017, Resident # 128 appointed an agent who would make health care decisions for her only when she could not make decisions for herself; her agent was not authorized to refuse or withdraw informed consent to life-sustaining treatment unless Resident # 128 was in a terminal condition or was in a permanently unconscious state, as determined by two physicians.
6. 6. In a January 20, 2017 Social Service History report, Petitioner’s social worker documented that Resident # 128 had “full” code status and had executed an advance directive.
7. 7. On February 2, 2017, a facility staff member assessed that Resident # 128 was unresponsive, had very shallow respirations and a faint heart rate, and did not have a detectable blood pressure. Shortly thereafter, Petitioner determined that Resident # 128 had expired.
8. 8. Petitioner did not initiate resuscitation efforts at any time on February 2, 2017.
9. 9. Resident # 128 did not have a DNR order in effect at the time of her death.

Resident # 128, a 92-year-old woman, had lived at home until her admission to the facility on January 11, 2017, because her “care exceeds ability at home.” CMS Exs. 5 at 1; 8 at 11. Resident # 128 was a private pay resident, and her stated goal was long-term care. CMS Ex. 5 at 1. Her diagnoses included hypertension, cirrhosis of the liver, ascites, chronic viral hepatitis C, macular degeneration, syncope, malaise, and fatigue. CMS Ex. 8 at 11. The social worker reported that Resident # 128 did not have a documented diagnosis of dementia, Alzheimer’s disease, or any other organic mental disorder. P. Ex. 1 at 3. In a late entry progress note on January 12, 2017, the social worker confirmed that Resident # 128, who she reported was “attentive and cooperative,” had requested “full code” status. CMS Ex. 8 at 11. In a subsequent late entry note dated January 17, 2017, the social worker stated: “Resident requesting full code.” CMS Ex. 8 at 10. That same day, Resident # 128 executed a State of Ohio Living Will Declaration (living will) and State of Ohio Health Care Power of Attorney (HCPOA). CMS Exs. 6, 7.

The living will document internally defines its purpose, stating: “Living Will Declaration or Living Will means this document that lets me specify the health care I want to receive if I become terminally ill or permanently unconscious and cannot make my wishes known.” CMS Ex. 6 at 2 (emphasis in original). Resident # 128’s living will instructed that if she were in a terminal condition or permanently unconscious state, she did not want life-sustaining treatment to be administered. CMS Ex. 6 at 2. The living will defined a permanently unconscious state to be an irreversible condition in which she was permanently unaware of herself and surroundings, which would be determined by her physician and another physician, and required total loss of higher brain function,

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leaving her unable to feel pain or suffering. CMS Ex. 6 at 2. It defined a terminal condition as an irreversible, incurable, and untreatable condition caused by disease, illness, or injury, that her physician, along with one other physician, would have determined, based on examination, that she could not recover from and that death was likely to occur within a relatively short time if she did not receive life-sustaining treatment. CMS Ex. 6 at 2. In executing her living will, Resident # 128 further acknowledged the following:

I am of sound mind and not under or subject to fraud or undue influence. I am a competent adult who understands and accepts the consequences of this action. I voluntarily declare my wish that my dying not be artificially prolonged. If I am unable to give directions regarding the use of life-sustaining treatment when I am in a terminal condition or a permanently unconscious state, I intend that this Living Will Declaration be honored by my family and physicians as the final expression of my legal right to refuse health care.

CMS Ex. 6 at 1. Petitioner’s social worker, Jenifer A. Murphy, notarized the form and attested that Resident # 128 “appears to be of sound mind and not under or subject to duress, fraud or undue influence.”7 CMS Ex. 6 at 5.

In the HCPOA executed the same day as the living will, Resident # 128 appointed her grandson to be her appointed agent who would have “full and complete authority to make all health care decisions for [her] whenever [she] cannot make such decisions.” CMS Ex. 7 at 4. Resident # 128 gave her agent the authority “to withdraw or refuse to give informed consent to life-sustaining treatment, either artificially or technologically supplied nutrition or hydration” only if she were in a “terminal condition.” CMS Ex. 7 at 4. The document defined a terminal condition as “an irreversible, incurable and

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untreatable condition caused by disease, illness or injury” that was confirmed by examination of two physicians who have determined that she “cannot recover and that death is likely to occur within a relatively short time” without life-sustaining treatment. CMS Ex. 7 at 2. Resident # 128 further acknowledged that her agent could not order the withdrawal of life-sustaining treatment unless she were in a terminal condition or permanently unconscious state “and two physicians have confirmed the diagnosis and have determined that [she had] no reasonable possibility of regaining the ability to make decisions.” CMS Ex. 7 at 5. The HCPOA included a “NOTICE TO ADULT EXECUTING THIS DOCUMENT,” which provided the following information pursuant to section 1337.17 of the Ohio Revised Code:

This document gives the person you designate (the attorney in fact) the power to make MOST health care decisions for you if you lose the capacity to make informed health care decisions for yourself. This power is effective only when your attending physician determines that you have lost the capacity to make informed health care decisions for yourself, and not withstanding this document, as long as you have the capacity to make informed health care decisions for yourself, you retain the right to make all medical and health care decisions for yourself.

CMS Ex. 7 at 9 (emphasis in original). The form clearly advised that “the attorney in fact NEVER will be authorized to . . . [r]efuse or withdraw informed consent to life-saving treatment” unless Resident # 128’s attending physician and another physician determined with a reasonable degree of medical certainty that she had a terminal condition or was in a state of permanent unconsciousness. CMS Ex. 7 at 9-10 (emphasis in original).

On January 20, 2017, several days after Resident # 128 executed a living will and HCPOA, the social worker completed a Social Service History form in which she reported that Resident # 128 had requested “full” code status. CMS Ex. 5 at 2.

A hospice visit coordination note indicates that a hospice worker visited with Resident # 128’s family on February 2, 2017, “to discuss Hospice/services Referral only.” CMS Ex. 11. The hospice worker documented “[n]o orders at this time,” and that “[f]amily in agreement to Hospice or Palliative services if appropriate.” CMS Ex. 11.

Later that day, on February 2, 2017, Kim Sharp, LPN, documented the following in a late entry progress note at 5:00 pm:

[State-Tested Nursing Assistant] alerts this nurse to [resident] being unresponsive with family. Upon entering [resident’s] room noted in recliner with very shallow breaths. Upon

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auscultation of heart and lungs a faint heart rate was detected as well as s[h]allow breaths. Upon attempting to obtain [blood pressure] it was absent. Many attempts to arouse [resident] were unsuccessful. At this time supervisor was contacted to assess [resident] as well. It was decided to move [resident] to bed from recliner to provide further comfort. Upon moving Supervisor stated that another set of vitals was warranted as it appears [resident] has expired.

CMS Ex. 8 at 1.

In a subsequent late entry progress note at 5:22 pm, Ms. Sharp reported the following: “At this time [resident] has no palpable pulse, [blood pressure] or Resp[irations]. Family at facility made aware.” CMS Ex. 8 at 1.

In a “Health Status” progress note recorded at 11:36 pm, Sharon Yackey, RN,8 reported the following:

Grandson and POA, [redacted], was notified at 17:18 of [resident’s] condition. He did not want her sent to the hospital. He arrived at 17:25. [Resident’s] sister had also been at bedside. At 17:35 Call placed to Dr. Mukkamulla. At 17:47, Dr. Mukkamulla notified. Family left at 18:05 and funeral home notified. Body released to Baxter-Garner funeral home at 18:55.

CMS Ex. 8 at 1. Petitioner’s progress notes do not indicate that facility staff reviewed Resident # 128’s social service notes, where presumably staff would have found Resident # 128’s code status. CMS Ex. 10 at 1 (“THE RESIDENT OR FAMILY MEMBER[’]S CHOICE WILL BE DOCUMENTED IN THE SOCIAL SERVICE NOTE.”) (capitalization in original). Nor do Petitioner’s progress notes document that Petitioner’s staff located a DNR order directing that Resident # 128 should not be resuscitated; they would not have found such a document because Resident # 128 had requested full code status.

Curiously, the day after Resident # 128’s death, Erica Moyer, RN, entered an “Incident Note” progress note in her chart reporting that “a light purple colored bruise noted surrounding skin tear and extends towards the central chest; no complaints of pain noted;

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the resident is noted to have fragile and thin skin relating to disease processes.”9 CMS Ex. 8 at 1. While Ms. Moyer’s motivation is unclear, it is possible that the purpose of such a note may have been to provide a post-hoc rationalization for Petitioner’s decision not to attempt to resuscitate Resident # 128, which is consistent with the testimony of Petitioner’s witnesses.10 See P. Exs. 2, 3, 4, 5, 6, 9.

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The evidentiary record does not contain a DNR order for Resident # 128 or a comparable document.11 See Ohio Rev. Code Ann. §§ 2133.21(D) (“‘Do-not-resuscitate order’ means a directive issued by a physician that identifies a person and specifies that CPR should not be administered to the person so identified.”); 2133.21(E) (“‘Do-not-resuscitate protocol’ means the standardized method of procedures for the withholding of CPR by physicians, emergency medical service personnel, and health care facilities that is adopted in the rules of the department of health pursuant to section 2133.25 of the Revised Code.”). Pursuant to Petitioner’s policy that directs that a resident’s choice regarding end-of-life resuscitation will be documented in the social service note, Resident # 128’s social service notes dated January 12 and 17, 2017, document that she requested “full code” status if her heart stopped beating or she stopped breathing. CMS Ex. 6 at 10, 11. And a Social Service History report, dated January 20, 2017, again documents Resident # 128’s request for full code status. CMS Ex. 5. Based on Resident # 128’s clearly expressed wishes that she desired full code status, along with the absence of a DNR order, Petitioner was obligated to attempt to resuscitate Resident # 128. Petitioner

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failed to provide the necessary care and services to Resident # 128 when it refused to attempt to resuscitate Resident # 128. 

Petitioner’s written policy addressing advance directives and the right to choose states:

1. EACH RESIDENT AND OR FAMILY MEMBER WILL BE EDUCATED ON ADVANCE DIRECTIVES AND THE RIGHT TO CHOOSE.
2. THE SOCIAL WORKER OR FACILITY DESIGNEE WILL EDUCATE AND PROVIDED [SIC] WRITTEN INFORMATION TO THE RESIDENT/FAMILY MEMBER ON WHAT ADVANCE DIRECTIVES ARE AND THE RIGHT TO REFUSE TREATMENT.
3. THE RESIDENT OR FAMILY MEMBERS [SIC] CHOICE WILL BE DOCUMENTED IN THE SOCIAL SERVICE NOTE.
4. THE RESIDENT’S ADVANCE DIRECTIVE WILL BE CARE PLANNED IN THE RESIDENT’S CHART.

CMS Ex. 10 (capitalization in original). Petitioner’s own policy required it to document Resident # 128’s end-of-life choice in a social service note, and it did so on January 12, 17, and 20, 2017, each time affirming Resident # 128’s request for full code status. CMS Exs. 5 at 2; 8 at 10-11.

Not only did Resident # 128 clearly explain her choice that she wished to be resuscitated, but further, she did not have a DNR order. The DOH has explained that a DNR order is a physician’s order that is used to communicate that a patient does not want CPR or other resuscitative measures, to include chest compressions, electric heart shock, artificial breathing tubes, and special drugs, if the patient loses a pulse or stops breathing. CMS Ex. 17 at 1. The DOH further explained that a patient cannot sign his or her own DNR order, but rather, only a specified health care provider can sign a DNR order. CMS Ex. 17 at 3. The DOH explained that “[u]nlike a living will and health care power of attorney, a DNR order must be written and signed by a physician, certified nurse practitioner, certified nurse specialist, or physician assistant in consultation with the patient.” CMS Ex. 17 at 1. The DOH further explained that a “family member or close friend can consent to a DNR order only when you are unable to decide for yourself and you have not appointed someone to decide for you,” and that the family member or close friend can consent to a DNR order only in certain situations, such as when the patient is terminally ill or permanently unconscious. CMS Ex. 17 at 4.

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Petitioner argues that “because Resident [sic] lacked cognitive functioning, vital signs, and consciousness, she was unable to make healthcare decisions for herself,” and that therefore, her HCPOA “by its plain and clear terms, became operative when she was unconscious, and had no vital signs.” P. Br. at 7. Petitioner argues that it “correctly relied on the instructions of [Resident # 128’s] attorney-in-fact, [her] grandson, to not resuscitate.” P. Br. at 7.

Petitioner’s own records demonstrate that, in a late entry note date-stamped at 5:00 pm on February 2, 2017, Petitioner’s staff reported that “it appears [Resident # 128] has expired,” meaning that, based on the time-stamp of the late entry note, Resident # 128 had expired prior to 5:00 pm. CMS Ex. 8 at 1. The initial progress note reporting Resident # 128’s deterioration indicated the only intervention provided after she was found unresponsive with a faint pulse, shallow breathing, and no detectable blood pressure was that staff moved her from a recliner to a bed for the purpose of comfort. CMS Ex. 8 at 1. After taking another set of vitals, Petitioner’s staff determined that it “appears [resident] has expired.” CMS Ex. 8 at 1. A 5:22 pm late entry note documents that the resident did not have a pulse, blood pressure, or respirations, and that it made family members who were at the facility “aware.” CMS Ex. 8 at 1. The two late entry notes time-stamped contemporaneous to Resident # 128’s death do not reflect that Petitioner reviewed the social service notes in Resident # 128’s chart to determine her code status, nor do they reference that staff identified a DNR order in Resident # 128’s chart. Rather, in a health status note entered six hours later, Ms. Yackey documented that facility staff notified Resident # 128’s grandson of her condition at 5:18 pm, which was at least 18 minutes after she had expired (based on the 5:00 pm late entry note reporting “it appears [resident] has expired”), at which time the grandson indicated he did not want her sent to the hospital.12 Further, assuming Ms. Sharp did, in fact, disregard Resident

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# 128’s wishes to be resuscitated, she did not ask the POA the most relevant question under the circumstances; she should have initially asked whether Petitioner’s staff should attempt to resuscitate the resident, rather than asking whether they should transport her to the hospital.13

Petitioner argues, without citation to specific language in either document, that Resident # 128 “clearly indicated in both her POA and Living Will that she did not wish to be resuscitated.” P. Br. at 8. As neither party disputes the authenticity or content of either document as submitted by CMS as CMS Exs. 6 and 7, Petitioner’s arguments therefore hinge on a legal question of interpretation of those documents. Namely, Petitioner presents the legal question of whether either the living will or HCPOA states that Resident # 128 “did not wish to be resuscitated,” and if so, do either of these documents override Resident # 128’s explicit request for full code status that is memorialized, pursuant to Petitioner’s policy, in its social service notes? To the extent that Petitioner argues that Resident # 128’s living will “instructed health care professionals not to begin CPR and to withdraw CPR if the treatment has started,” I observe that the particular language in the living will would only be applicable if Resident # 128 was in either a terminal condition or permanently unconscious state, which she was not, based on the definitions provided within the same document. P. Br. at 8; CMS Ex. 6 at 2. Similarly, Petitioner argues that the HCPOA “makes clear that the [agent] may make health care decisions for [Resident # 128] based on her ‘wishes otherwise known to [the] agent,’” and that the “grandson has stated that his grandmother’s wishes were that she not be resuscitated.”14 P. Br. at 9. However, the HCPOA document clearly advises the person executing the document that “the attorney in fact NEVER will be authorized” to “[r]efuse or withdraw informed consent to life-sustaining treatment” unless two physicians determine she is unable to make informed health care decisions for herself due to a terminal condition or permanently unconscious state. CMS Ex. 6 at 9-10. The document further explained that the HCPOA “gives the person you designate (the attorney in fact) the power to make MOST health care decisions if you lose the capacity to make health care decisions for yourself,” and that the “power is effective only when your attending physician determines that you have lost the capacity to make informed health care decisions for yourself . . . .” CMS Ex. 7 at 9. Petitioner not only disregards this

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important language in presenting its baseless arguments regarding the purported authority of Resident # 128’s grandson to refuse life-saving treatment for her on the day she died, but further, fails to present any evidence that Resident # 128’s physician determined she had “los[t] the capacity to make informed health decisions for [her]self.” CMS Ex. 7 at 9. In fact, according to Petitioner’s records, Petitioner did not contact Resident # 128’s physician until 5:35 pm, more than a half hour after it documented that she had expired. CMS Ex. 8 at 1.

Petitioner, through its counsel, essentially argues that it is permissible to disregard a resident’s stated wish to be “full code,” even though it had recorded this end-of-life choice in its social service notes in accordance with its own policy. Petitioner’s flawed arguments display a disregard for the unequivocal end-of-life wishes of a resident who its own social worker observed was “of sound mind.” Petitioner knew that Resident # 128 was in distress and faced imminent death if not given medical intervention, but rather than providing any medical treatment or resuscitative measures, its staff moved her to a bed to make her more comfortable.15

• Situations where attempts to perform CPR would place the rescuer at risk of serious injury or mortal peril (e.g., exposure to infectious diseases).
• Obvious clinical signs of irreversible death (e.g., rigor mortis, dependent lividity, decapitation, transection, decomposition).
• A valid advance directive, a Physician Orders for Life-Sustaining Treatment (POLST) form . . . indicating that resuscitation is not desired, or a valid Do Not Attempt Resuscitation (DNAR) order.

Ex. 12 at 4. No situation listed above was presented with Resident #128.

And after Petitioner determined that she no longer had a pulse, Petitioner did not attempt to resuscitate Resident # 128 through CPR, defibrillation, or any other means. Rather than respecting Resident # 128’s request for resuscitation, Petitioner chose to impose its own DNR order, without authority from the resident or her treating physician, and denied her the treatment that potentially could have saved her life.

Despite Petitioner’s arguments, Resident # 128’s HCPOA had a limited purpose “to name an adult person to act as [her] agent to make health care decisions for [her] if [she] become[s] unable to do so.” CMS Ex. 7 at 2. But the circumstance envisioned by this document was not present here; Resident # 128’s wishes were clearly documented by

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Petitioner, and the HCPOA would only take effect if she was unable to make decisions regarding her care due to a terminal condition or permanent unconsciousness. Resident # 128 did not authorize her agent to “withdraw or refuse to give informed consent to life-sustaining treatment” unless she was permanently unconscious or had a terminal condition that prevented her from making such decisions, and there is no evidence of such. CMS Ex. 7 at 2-3. The HCPOA clearly advised that Resident # 128’s grandson “NEVER will be authorized to . . . [r]efuse or withdraw informed consent to life-sustaining treatment” under the circumstance presented of a nearly sudden death. CMS Ex. 7 at 9-10. Although Petitioner callously argues that Resident # 128 could not make decisions on February 2, 2017, because she “lacked cognitive functioning, vital signs, and consciousness,” she lacked this capacity only due to her impending death and not due to a terminal condition or permanent unconsciousness, as defined in the HCPOA and living will. Resident # 128 wanted to be resuscitated, and Petitioner disrespected these wishes.

I have previously written that when a facility fails to respect end-of-life wishes, “someone who had a desire to live faces death without any chance for survival,” and “[w]ith life and death in the balance, the facility violated its own policies and chose to err on the side of death.” The Retreat at Brightwater, DAB CR4545 at 18-19 (2016). Resident # 128’s caregivers at the facility witnessed her death. Rather than abiding by her wishes, they let her die without the medical attention she desired and to which she was entitled. As a result, the facility was not in substantial compliance with 42 C.F.R. §§ 483.24 and 483.25. Resident # 128 did not receive the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, and therefore, Petitioner failed to comply with sections 483.24 and 483.25.

C. The immediate jeopardy determination is not subject to review because the amount of the per-instance CMP is not affected by a determination of whether there is immediate jeopardy.

CMS concluded that Petitioner’s noncompliance with 42 C.F.R. §§ 483.24 and 483.25 posed immediate jeopardy at the “J” scope and severity level. Because CMS imposed a per-instance CMP for this deficiency, I lack authority to review CMS’s immediate jeopardy determination.

The regulations are clear that an ALJ may review CMS’s scope and severity findings (which includes a finding of immediate jeopardy) only if a successful challenge would affect: (1) the range of the CMP amounts that CMS could collect; or (2) a finding of substandard quality of care that results in the loss of approval of a facility’s nurse aide training program. 42 C.F.R. § 498.3(b)(14), (d)(10)(i)-(ii); NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7 (2014). Neither of these factors apply.

Unlike per-day CMPs, under the regulations, there is only a single monetary range for a per‑instance CMP regardless of whether or not immediate jeopardy is present. 42 C.F.R.

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§§ 488.408; 488.438(a)(2). Consequently, because CMS only imposed a per-instance CMP against Petitioner, a successful challenge to the immediate jeopardy finding would not affect the range of CMP amounts that CMS could collect. NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7. For this reason, the immediate jeopardy finding is not subject to appeal and I may not review it.

Petitioner argues that it lost its NATCEP approval based on the finding of immediate jeopardy. With respect to NATCEP approval, the finding of immediate jeopardy is not dispositive of its NATCEP approval because the CMP, which I sustain herein, exceeded $10,483. 42 C.F.R. § 483.151(b)(2)(iv) (prohibiting approval of a NATCEP for a period of two years if a facility has been assessed a CMP of “not less than $5,000 as adjusted annually); see 82 Fed. Reg. 9174, 9188 (Feb. 3, 2017) (inflation adjustment of threshold to $10,483, effective February 3, 2017).

D. A per-instance CMP of $19,921 is a reasonable enforcement remedy for Petitioner’s noncompliance with 42 C.F.R. §§ 483.24 and 483.25.

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. In determining whether the CMP imposed against Petitioner is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f). 42 C.F.R. § 488.438(e)(3). These factors include: 1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety. 42 C.F.R. § 488.438(f). The absence of culpability is not a mitigating factor. Id. The factors in 42 C.F.R. § 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors. I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion. See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002). Unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it. Coquina Ctr., DAB No. 1860 (2002)

At the time of the survey, the baseline per-instance CMP range was from $1,000 to $10,000 prior to adjustment for inflation. 42 C.F.R. § 488.438(a)(2). With inflation adjustment, the CMP range at the time of the survey was $2,097 to $20,965. See 82 Fed. Reg. at 9182. CMS imposed a per-instance CMP of $19,921 for the noncompliance with 42 C.F.R. §§ 483.24, 483.25. Petitioner does not argue with any specificity that the per-

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instance CMP is unreasonable, which alone gives reason to sustain it. Coquina Ctr., DAB No. 1860; 42 C.F.R. §§ 488.404, 488.438(f). In fact, Petitioner’s sole argument is that because it “was in compliance with applicable participation requirements . . . there is no basis to impose a CMP.” P. Br. at 12.

Petitioner’s deficiency was at the immediate jeopardy level, and Petitioner disrespected the wishes of a resident who had asked to be a “full code” in the event she needed resuscitation. In the absence of any arguments or evidence presented regarding any of the regulatory factors cited above, a per-instance CMP at the upper end of the penalty range is entirely appropriate. A $19,921 per-instance CMP is entirely reasonable.

IV. Conclusion

For the reasons discussed above, I grant summary judgment in favor of CMS. There is no genuine dispute of material facts, and I find that the facility was not in substantial compliance with the Medicare participation requirements. A $19,921 per-instance CMP is reasonable.

• 1. Immediate jeopardy exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  See 42 C.F.R. § 488.301.
• 2. CMS does not address the other deficiencies cited during the March 2017 survey.  Therefore, I uphold only the deficiency cited under 42 C.F.R. §§ 483.24 and 483.25 that is the subject of CMS’s motion for summary judgment.
• 3. Scope and severity levels are used by CMS and state survey agencies when selecting remedies.  As relevant here, a scope and severity level of “J” indicates an isolated instance of immediate jeopardy to resident health or safety.  State Operations Manual (SOM), Ch. 7, § 7400.5.1, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07.pdf (last visited Dec. 13, 2018); see 42 C.F.R. § 488.408.
• 4. Because I have granted CMS’s motion for summary judgment, a hearing for the purpose of cross-examination of witnesses is unnecessary.
• 5. My findings of fact and conclusions of law are set forth in italics and bold.
• 6. Federal nursing home regulations substantially changed beginning on November 28, 2016.  81 Fed. Reg. 68,688 (Oct. 4, 2016).  Due to the revisions in the nursing home regulations, the DAB's references to provisions in 42 C.F.R. § 483.25 are now found in 42 C.F.R. § 483.24.
• 7. A January 18, 2017 Minimum Data Set revealed a Brief Interview for Mental Status (BIMS) score of 10, which correlates to a moderate degree of cognitive impairment.  CMS Ex. 12 at 2; see Long-Term Care Facility Resident Assessment Instrument 3.0 User’s Manual, Ch. 3, § C0500 (Summary Score) (2015), https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/Downloads/MDS-30-RAI-Manual-V113.pdf (last visited Dec. 13, 2018).  The BIMS score is based on a 7-question examination, with four questions assessing Resident # 128’s recall of three different words and three questions assessing Resident # 128’s knowledge of the current day, month, and year.  CMS Ex. 12 at 2.  Although Petitioner questions Resident # 128’s capability for decision making based on her BIMS score (P. Br. at 6), I remind Petitioner that its own social worker, just one day prior to the BIMS assessment, certified that Resident # 128 “appear[ed] to be of sound mind.”  CMS Ex. 6 at 5.
• 8. Ms. Yackey testified that she was the nursing supervisor during the 3:00 pm to 11:00 pm shift.  P. Ex. 5 at 1.
• 9. Petitioner’s witnesses, none of whom attempted to resuscitate Resident # 128 despite her explicit desire for full code status, each testified that they felt cardiopulmonary resuscitation (CPR) would have been harmful to Resident # 128.  This testimony appears to be an effort to justify their collective refusal to abide by Resident # 128’s wishes that she be resuscitated if found without a pulse or not breathing.  P. Ex. 2 at 2 (Kimberly A. Sharp, LPN, testifying that “[i]n light of the resident’s overall health, it is my opinion that the resident’s skin would have been ripped apart and the rib cage broken if CPR had been initiated.”); P. Ex. 3 at 2 (Thomasina Tipple, STNA, testifying that “I believe that the resident’s skin would have been torn off his/her chest and the sternum broken if CPR ha[d] been initiated.”); P. Ex. 4 at 2 (Dianna M. Murray, RN, testifying that “it is my opinion the resident would have been damaged beyond repair, the chest would have opened up, the bleeding could not have been stopped, and the sternum and ribs would have been broken if CPR had been initiated.”); P. Ex. 5 at 2 (Sharon L. Yackey, RN, testifying that “Resident 128’s skin would have been torn off, the sternum cracked and several ribs would have been broken if CPR had been initiated” and that she “helped clean up the skin tears and re-bandage the wounds” because she “wanted the resident to look dignified when transported to the funeral home.”); P. Ex. 6 at 2 (Julian K. Jones, STNA, testifying with identical language to that of Ms. Tipple that “I believe the resident’s skin would have been torn off his/her chest and the sternum broken if CPR ha[d] been initiated.”); P. Ex. 9 at 2 (Marcina A. Schutt, Administrator, testifying that “the resident would have suffered greatly and would have been severely harmed if CPR ha[d] been initiated.”).
  
  Further, it appears that a number of skin tears were related to Resident # 128’s four falls within the span of the three weeks she had been a resident of the facility.  A skin tear was first noted on January 13, 2017, at which time bacitracin was applied.  CMS Ex. 8 at 11.  Resident # 128 had a fall on January 17, 2017, and after another fall on January 19, 2017, “some skin tears” were noted on the right lower extremity and treated with gentamycin cream.  Another skin tear was noted on January 23, 2017 (with no cause reported), and “skin tears to the upper/mid back as well as left knee” were again reported due to yet another fall on January 29, 2017.  CMS Ex. 8 at 6-7.  Another skin tear appeared on January 30, 2017, for which Petitioner did not determine a cause.  CMS Ex. 8 at 6.  Resident # 128 had a fourth fall in the span of 15 days on January 31, 2017, at which time “[a]brasions were noted to the mid upper back and knee.”  CMS Ex. 8 at 5.
• 10. If Petitioner and its individual staff members felt that Resident # 128’s wishes for resuscitation could not or should not be honored due to the presence of skin tears and concerns that she would sustain severe injuries to her ribs and sternum, these staff members should have communicated these concerns to Resident # 128 and her physician.  Likewise, even though Petitioner’s administrator, Ms. Schutt, felt that Resident # 128 would have “suffered greatly and would have been severely harmed if CPR ha[d] been initiated,” it is not for Ms. Schutt to decide that Resident # 128’s life was not worth trying to save in express contravention of her wishes.  P. Ex. 9 at 2.  If the standard for saving a life hinges on whether that person would experience short-term suffering and injury as a result of such treatment, then there would be no role for the myriad of painful and debilitating medical procedures and therapies that prolong, and even save, countless lives.  Resident # 128 elected that she wanted to receive resuscitative measures, and none of Petitioner’s witnesses had a right to decide otherwise for her.
• 11. Resident # 128 visited the hospital due to low blood pressure on January 30, 2017, at which time the treating doctor, Dr. Jeffrey Cameron, stated she “is a [do-not-resuscitate/comfort care]” which he had “confirmed with the grandson who is her power of attorney.”  CMS Ex. 9.  Being that Dr. Cameron reported that he discussed Resident # 128’s code status with Resident # 128’s grandson, and not with Resident # 128, Dr. Cameron’s statement regarding Resident # 128’s code status does not create a dispute of material fact.  Dr. Cameron is an emergency physician and was not Resident # 128’s treating physician.  Additionally, Dr. Cameron did not issue a DNR order.  There is no evidence that Resident # 128 sought to change her code status upon her return from the hospital, nor is there evidence that Petitioner asked Resident # 128 if she wanted to update her code status.  Further, Petitioner did not update Resident # 128’s code status in its social service notes.
• 12. Although this does not relate to a material fact, I nonetheless note that Ms. Sharp, a licensed practical nurse, testified that she called Resident # 128’s grandson and “asked if he wanted his relative transported to the hospital, and he said do not do anything.”  P. Ex. 2 at 1-2.  Ms. Yackey, the nursing supervisor that evening, documented that Petitioner did not notify Resident # 128’s grandson of her condition until 5:18 pm.  CMS Ex. 8 at 1.  If Resident # 128’s death had occurred approximately 18 minutes prior to the time of contact of the grandson, it makes abundant sense that the grandson would not ask for her to be transferred to the hospital; common sense dictates that transfer to a funeral home, rather than a hospital, is appropriate for someone who has been deceased for more than 15 minutes.  Petitioner’s contemporaneous records do not document that staff asked the grandson whether CPR or other resuscitative measure should be initiated, which would precede any transfer to a hospital.  Even assuming, purely for the sake of this discussion, that Petitioner properly consulted Resident # 128’s agent (despite Resident # 128’s clearly expressed wishes and lack of a DNR order), Petitioner would have been obligated to immediately initiate life-sustaining measures until it received instructions from her agent.  There is no indication that Petitioner initiated any resuscitative measures prior to contacting Resident # 128’s grandson.
• 13. Petitioner’s progress notes indicate that it did not attempt to contact Resident # 128’s physician until 5:35 pm and did not make notification of death to the physician until 5:47 pm.  CMS Ex. 8 at 1.
• 14. The evidentiary record contains no such statement by Resident # 128’s grandson.  Rather, the record contains at least three entries indicating that Resident # 128 wanted to be resuscitated.  CMS Exs. 5 at 2; 8 at 10-11.
• 15. There was no medical basis upon which to deny Resident # 128 lifesaving treatment.  The American Heart Association Guidelines for Cardiopulmonary Resuscitation and Emergency Cardiovascular Care, which Petitioner submitted, provide the following criteria for not starting CPR: