Logan Healthcare Leasing, LLC d/b/a Logan Care and Rehabilitation, DAB CR5339 (2019)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) sustaining its determination to impose a per-instance civil money penalty of $19,500 against Petitioner, Logan Healthcare Leasing, LLC d/b/a Logan Care and Rehabilitation, a skilled nursing facility.

I. Background

CMS moved for summary judgment and Petitioner opposed the motion. With its motion, CMS filed 26 proposed exhibits, identified as CMS Ex. 1-CMS Ex. 26. With its opposition, Petitioner filed 15 proposed exhibits, identified as P. Ex. 1-P. Ex. 15.

I do not receive the parties' exhibits into evidence inasmuch as I grant summary judgment based on undisputed material facts. I cite to some of the exhibits, but only to illustrate facts that are not in dispute.

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II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues in this case are whether Petitioner failed to comply substantially with a Medicare participation requirement and whether CMS's determination to impose a civil money penalty of $19,500 is reasonable.1

B. Findings of Fact and Conclusions of Law

CMS alleges that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.24(a)(3) (2018).2 This subsection requires that a skilled nursing facility ensure that its:

[p]ersonnel provide basic life support, including CPR [cardio‑pulmonary resuscitation] to a resident requiring such emergency care prior to the arrival of emergency medical personnel and subject to related physician orders and to the resident's advanced directives.

42 C.F.R. § 483.24(a)(3). CMS's noncompliance allegations relate to the care that Petitioner's staff provided to a resident who is identified as R111. In addressing these allegations I find the following facts to be undisputed and material.

R111 elected to be full code, meaning his wishes were that, in the event of cardiac arrest and/or cessation of respiration, Petitioner's staff would undertake all reasonable measures to resuscitate him. CMS Ex. 13 at 46, 50, 54-55, 60-61. The resident's care plan incorporated his wishes, stating that his desire for resuscitation would be "honored and respected and all life sustaining measures will be provided" in the event of cardio‑pulmonary arrest. Id. at 60.

Petitioner's CPR policy provides, in relevant part, that if a full code resident is found to be nonresponsive and without respiration, the staff should follow the American Heart Association (AHA) CPR policy. CMS Ex. 19. That organization's policy and Petitioner's policy as well instruct staff to begin chest compressions and assisted breathing (the person performing compressions periodically blows air into the resident's

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airway) and "[c]ontinue the compressions and breaths until resident shows signs of life or help arrives and takes over (emergency personnel) or physician gives order to cease." Id.

The driving force behind the American Heart Association guidelines, Petitioner's policy, and regulatory requirements is that CPR must be initiated immediately when a full code resident is found to be nonresponsive. Time is of the essence in initiating CPR. Any delay endangers a nonresponsive individual's safety and his or her life. With CPR, seconds may mean the difference between resuscitation and death.

At 2:30 a.m. on April 29, 2018, Petitioner's on-duty registered nurse responded to a call to come to R111's room. On arriving, she found the resident to be without pulse or respirations. CMS Ex. 13 at 6. According to this nurse's note, she declared a "code blue," meaning that she declared an emergency, due to the resident's full code status. Id. However, she did not initiate CPR. She delayed doing so while she telephoned a certified nurse practitioner concerning the resident's status and condition. Id. A note entered by a licensed practical nurse at 2:50 a.m. on April 29 avers that the staff received an order from the nurse practitioner not to initiate CPR compressions and assisted breathing due to the resident's absence of vital signs, lack of respirations, and absence of a pulse. Id.

When the attending nurse discovered that R111 was nonresponsive, she was unable immediately to ascertain whether the resident had full code status. CMS Ex. 10 at 28; P. Ex. 2 at 3; P. Ex. 4 at ¶ 5. That is despite the fact that the resident's plan of care explicitly stated that the resident had full code status. CMS Ex. 13 at 60.

At about 3:00 a.m. on April 29, the emergency medical service (EMS) arrived at Petitioner's facility. The EMS confirmed that the resident was without a pulse and it did not initiate CPR based on the staff's representation as to the amount of time that the resident had been nonresponsive. CMS Ex. 15.

There is nothing in AHA's guidelines, Petitioner's own policy, or the governing regulation that condones delaying the implementation of CPR pending consultation with the resident's physician. To the contrary, the requirements are explicit that the staff continues with CPR until a physician orders that it be ceased. Under no circumstances may a facility staff delay implementation of CPR in the case of a full code resident.

Here, Petitioner's staff deferred implementation of CPR while it communicated with a nurse practitioner. That deferral is a plain violation of Petitioner's policy, AHA guidelines, and noncompliance with regulatory requirements because it denied a full code resident immediate administration of CPR. It also violates the resident's plan of care, which explicitly directed Petitioner's staff to initiate CPR in the event that the resident became nonresponsive.

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Petitioner's actions in the wake of R111's demise underscore its recognition that its staff violated the facility's CPR policy. Petitioner disciplined the nurse who attended R111 on the evening of April 29, 2018, for failure to follow Petitioner's CPR protocol and, specifically, for not initiating CPR. CMS Ex. 5 at 1; CMS Ex. 6 at 1.

Petitioner's policy requires staff to assume that a resident is full code if his or her status is not immediately ascertainable. CMS Ex. 19. The staff's failure immediately to commence CPR while it searched for R111's status comprises additional noncompliance. Instructions as to code status are meaningless in an emergency situation if they are not immediately accessible, because failure to instantly determine a resident's status may result in delay in implementation of CPR.

In finding noncompliance, I do not address the question of whether R111 would have benefitted from administration of CPR. The salient questions are whether Petitioner's staff complied with Petitioner's own policy, AHA guidelines, and regulatory requirements by delaying implementation of CPR to R111. As I have explained, the undisputed facts plainly establish noncompliance.

Petitioner makes several arguments in opposition to CMS's motion for summary judgment that I find to be unavailing. First, Petitioner alleges that it is shielded from responsibility for not initiating CPR by the nurse practitioner's alleged instruction to Petitioner's staff not to implement CPR. Petitioner contends that its staff merely followed a medical professional's orders and should not be held liable for its doing so.

There is a dispute as to what the nurse practitioner told Petitioner's staff. The nurse practitioner's notes offer no support for the staff's claim that she told them not to initiate CPR. CMS Ex. 16 at 1. This dispute is irrelevant to my decision, whatever the truth may be. As I stress above, under no circumstance should Petitioner's staff have delayed implementing CPR pending consulting with the nurse practitioner. That delay violated Petitioner's policy, applicable guidelines, and regulatory requirements. Here, Petitioner's staff delayed for minutes while the nurse called the nurse practitioner. In a situation where time is of the essence, a delay like that potentially is critical.

Petitioner was noncompliant even if it complied with the express directive of the nurse practitioner. Petitioner is not spared a finding of liability whatever the nurse practitioner may have ordered because the essence of its violation lies in delaying implementation of CPR pending consultation.

Petitioner argues, however, that 42 C.F.R. § 483.24(a)(3) not only contemplates staff delaying initiating CPR, pending consultation with a physician, it explicitly condones it. As support for this assertion Petitioner relies on the phrase "subject to related physician orders" in the regulation.

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I disagree with Petitioner's advocated interpretation of the regulation. If read as argued by Petitioner, the phrase would render meaningless a facility's duty to immediately implement CPR upon discovery of a nonresponsive full code resident. As I have discussed, time is of the essence in initiating CPR. Seconds matter when a resident experiences cardiac arrest. Calling a physician in order to decide whether to implement CPR, and the delay that would inevitably result from placing that call and discussing the issue, could in many instances mean the difference between resuscitation and death.

The more obvious reading of the regulation is that, consistent with AHA guidelines and Petitioner's policy, a facility staff would be authorized to stop CPR if, after initiating it and while CPR is ongoing, a physician advised that further efforts would be futile. But, that is not what the undisputed facts show happened here. In this instance, staff delayed initiating CPR while it sought guidance from a nurse practitioner.

Petitioner also argues that R111 was irreversibly dead and that initiation of CPR would have been futile. To support this argument, Petitioner offers the affidavit of a pathologist who opines that the R111 manifested signs of irreversible death when Petitioner's nursing staff discovered him nonresponsive on the morning of April 29, 2018. See P. Ex. 9.

But, Petitioner offered no evidence to show that the staff assessed the resident, concluded that he was irreversibly dead, and determined not to initiate CPR for that reason. Indeed, the undisputed facts show that the staff had called a "code blue" for R111 upon discovery and was preparing to initiate CPR pending discussion with the nurse practitioner. Petitioner has offered no documentation showing that the staff even considered the possibility that the resident was irreversibly dead prior to calling the nurse practitioner. Rather, the facts show only this: the registered nurse responsible for the resident's care delayed initiating CPR pending a call to the nurse practitioner and not based on her independent assessment that the resident was irreversibly dead. Furthermore, according to this nurse, she withheld CPR on the nurse practitioner's advice because the nurse practitioner allegedly told her not to initiate CPR due to the absence of vital signs, respirations, or apical pulses. CMS Ex. 13 at 6; but see CMS Ex. 26.

Even if that is exactly what the nurse practitioner said to Petitioner's nurse, none of those signs – the absence of respirations or apical pulses – evidences irreversible death. Indeed, these signs are the reason why one initiates CPR. CPR should be performed only on a person who is not breathing and has no pulse.

Petitioner contends that the resident manifested signs of irreversible death because his jaw allegedly was locked open when Petitioner's staff discovered him. But, whether or not this is true, that was not the reason given by the staff for delaying implementing CPR.

Petitioner offers a nurse's affidavit in which she declares that, when she arrived at R111's room shortly after the resident was found to be unresponsive, she found that the

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resident's mouth was open and that his color had drained. P. Ex. 4 at ¶ 6. According to Petitioner, the reasonable inference that one could draw from these findings was that the resident was "obviously deceased." Petitioner's Brief in Opposition to Respondent's Motion for Summary Judgment at 2. However, Petitioner offers no evidence, in the form of nursing notes or a contemporaneous assessment of the resident's condition, showing that the staff formed that judgment at the time and acted on it. The only evidence-based facts in the record show that the staff hesitated making any judgment about whether to perform CPR pending the nurse's call to the licensed practical nurse. It is that delay, coupled with the staff's inability to ascertain the resident's code status, which is the essence of Petitioner's noncompliance.

At bottom, Petitioner's irreversible death argument constitutes a post hoc rationalization for its staff's failure to initiate CPR. The possibility – even the likelihood – of irreversible death provides Petitioner with no justification for its staff's failure to initiate CPR. Hindsight provides Petitioner no excuse. Woodland Oaks Healthcare Facility, DAB No. 2355 at 16 (2010). When confronted with a nonresponsive full code resident, as was the case here, Petitioner's staff's duty was immediately to initiate CPR, even if the likelihood was very high that CPR would prove to be futile.

There are some circumstances where a staff would be excused from initiating CPR upon confronting a nonresponsive resident. None of those circumstances applies to the undisputed facts of this case. The staff would be excused if the resident or someone on the resident's behalf had executed a do not resuscitate order. But, that plainly is not the case here. To the contrary, R111 had expressly requested that attempts be made to resuscitate him in the event that he became nonresponsive. The staff also would be excused if the resident displayed clear signs of irreversible death and the staff assessed those signs and acted on them. But, that is not what the undisputed facts establish here. To the contrary, there is nothing in the documentary record that shows that the staff made note of signs of irreversible death, assessed them, and determined not to initiate CPR for that reason. Indeed, Petitioner relies on a nurse's claim that she was told not to initiate CPR by a nurse practitioner based solely on the resident's cessation of breathing and lack of apical pulses – neither of which is a sign of irreversible death. Finally, the staff would be excused if it ceased performing CPR upon a doctor's order. Here, however, the staff never initiated CPR.

To remedy Petitioner's noncompliance, CMS imposed a per-instance civil money penalty of $19,500. That penalty is within the range of permissible per-instance penalty amounts. 82 Fed. Reg. 9174, 9182 (Feb. 3, 2017). I find it to be reasonable given the seriousness of Petitioner's noncompliance.

CMS determined that Petitioner's noncompliance was so egregious as to constitute immediate jeopardy. I do not address the issue of whether Petitioner's noncompliance is an immediate jeopardy-level violation because it is unnecessary that I do so in order to

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determine whether the per-instance civil money penalty that CMS determined to impose is reasonable. Immediate jeopardy level noncompliance is a necessary element of upper‑range daily civil money penalties but is not a necessary element of per-instance penalties. 42 C.F.R. § 488.438(a)(1)(i), (2).

What the undisputed material facts prove is that Petitioner's staff's delay in deciding whether to initiate CPR not only contravened R111's express wishes but denied him any possibility – no matter how small – of survival. Whatever chance the resident might have had to live, Petitioner's staff's failure immediately to initiate CPR on discovering him nonresponsive reduced that chance to zero.

Furthermore, the obvious confusion of Petitioner's staff when it discovered R111 nonresponsive boded ill for all other residents of Petitioner's facility who had expressed the desire that the staff make every effort to resuscitate them in the event that they became nonresponsive. Staff at first could not ascertain R111's code status. Staff delayed implementing CPR while it called a nurse practitioner for advice. Minutes were wasted in a situation where time was of the essence. The rationale for performing CPR illustrates the grave risk posed by any delay in initiating CPR. The obvious confusion of Petitioner's staff and its failure to comprehend Petitioner's policy exposed every resident of Petitioner's facility to this grave risk.

I note that CMS also recites that Petitioner had a previous immediate jeopardy-level noncompliance finding and asserts that Petitioner's compliance history is additional justification for the civil money penalty amount. I do not rely on that history inasmuch as Petitioner has appealed that finding of immediate jeopardy level noncompliance and as of this date that appeal is unresolved.

• 1. By virtue of the penalty amount (more than $5000) Petitioner loses the authority to operate a nurse aide training and competency evaluation program.
• 2. CMS made several additional noncompliance allegations. However, CMS did not impose a remedy for these additional allegations, and I do not address them here.