Cahokia Nursing and Rehabilitation Center, DAB CR5374 (2019)

DECISION

In this consolidated case, we again consider a skilled nursing facility’s burden of establishing that its deficiencies no longer pose immediate jeopardy to resident health and safety.

The facts are not in dispute. Petitioner, Cahokia Nursing and Rehabilitation Center, is a skilled nursing facility, located in Cahokia, Illinois, that participates in the Medicare program. On May 31, 2016, a fire broke out, and all facility residents were evacuated. Subsequent complaint-investigation surveys – concluded on June 29 and July 12, 2016 – revealed multiple Life Safety Code (LSC) violations and systemic deficiencies in fire safety policies and staff training. Based on the survey findings, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with program requirements and that its deficiencies posed immediate jeopardy to resident health and safety. CMS has imposed a civil money penalty (CMP) of $7,250 per day for 51 days of immediate jeopardy (May 31 through July 20, 2016).

Petitioner separately appealed both surveys (Docket Numbers C-16-808 and C-16-919), and I have consolidated the appeals. Petitioner does not challenge the deficiencies

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themselves nor the initial finding of immediate jeopardy, but argues that, because all residents were evacuated on May 31, the facility’s deficiencies no longer posed immediate jeopardy as of June 1.

The parties agree that no material facts are in dispute and that this case turns on a question of law. They have filed cross-motions for summary judgment. For the reasons discussed below, I grant CMS’s motion and deny Petitioner’s. I find that, from May 31 through July 20, 2016, the facility was not in substantial compliance with Medicare program requirements and that its deficiencies posed immediate jeopardy to resident health and safety. The amount of the CMP – $7,250 per day – is not unreasonably high.

Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions. Act § 1819. The Secretary’s regulations are found at 42 C.F.R. Part 483.1 To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements. To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.” 42 C.F.R. § 488.301. 

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

Here, a serious fire broke out in the facility, threatening the lives of its residents. Within a day, the Illinois Department of Public Health (state agency) dispatched surveyors to the facility to investigate. CMS Exhibit (Ex.) 51. Based on their complaint-investigation surveys, completed on June 29, 2016 (LSC), and July 12, 2016 (health), CMS determined that the facility was not in substantial compliance with multiple program requirements and that its deficiencies posed immediate jeopardy to resident health and safety. CMS Exs. 1, 2. Petitioner agrees. Petitioner (P.) Motion for Summary Judgment (MSJ) at 1.

The Life Safety Code survey. A facility must meet provisions of the Life Safety Code of the National Fire Protection Association (NFPA). 42 C.F.R. § 483.70(a)(1). CMS

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determined that the facility was not in substantial compliance with the following LSC provisions:

CMS Exs. 1, 14.

The health survey. Following the health survey, CMS determined that the facility was not in substantial compliance with the following additional requirements:

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CMS Exs. 2, 5, 37. 

The state agency revisited the facility on July 21, August 2, and August 18, 2016, and, ultimately, determined that the facility alleviated the immediate jeopardy and achieved substantial compliance effective July 21. CMS Ex. 2 at 2; but see CMS Ex. 10 (state notice letter indicating that “outstanding deficiencies continue to exist . . . .”).

CMS has imposed a CMP of $7,250 per day for 51 days of immediate jeopardy (May 31 through July 20, 2016) (total: $369,750). CMS Ex. 2.

Petitioner appeals, conceding that it was not in substantial compliance on May 31 and that its deficiencies posed immediate jeopardy to resident health and safety. Petitioner argues, however, that, effective June 1, its deficiencies no longer posed immediate jeopardy because it evacuated all of its residents on May 31. P. Brief (Br.) at 1-2.

CMS filed an opening brief. (CMS Br). As part of its opening brief, Petitioner moved for summary judgment (P. MSJ). CMS responded (CMS Response to MSJ) and subsequently filed its own motion for summary judgment (CMS MSJ). Petitioner responded to CMS’s motion (P. Response to MSJ). CMS has submitted 88 exhibits (CMS Exs. 1-88). Petitioner has submitted three exhibits (P. Exs. 1-3).

Issues

The parties agree that no material facts are in dispute and that this case turns on a question of law: by emptying itself of all residents, did the facility also eliminate the immediate jeopardy? 

I will also consider whether the penalty imposed – $7,250 per day – is reasonable.

Discussion

1. CMS is entitled to summary judgment because its determination as to the duration of the facility’s immediate jeopardy is consistent with statutory and regulatory requirements and must be affirmed.2

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Summary judgment. Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986); Ill. Knights Templar Home, DAB No. 2274 at 3‑4 (2009), and cases cited therein.

The facility’s substantial noncompliance. The facility demonstrated its substantial noncompliance in dramatic fashion: staff effectively disabled its alarm system without a backup plan; its sprinkler system was not functional; its staff were not properly trained; and a fire broke out. 

On May 31, the facility’s maintenance supervisor (E1) and a maintenance worker (E10) were in the facility’s attic, attempting to repair a heating/ventilation/air-conditioning (HVAC) unit. CMS Ex. 26 at 1. At about 3:30 p.m., they heard the fire alarm sound. They left the attic and silenced the alarm. When the fire fighters arrived at about 3:35, the maintenance supervisor told them that it was a false alarm and sent them away. The maintenance employees then returned to the attic. CMS Ex. 26 at 2; CMS Ex. 51 at 1.

Until about 4:15 p.m., when she heard that there was a real fire, the Charge Nurse (E11) held down the fire alarm silence button to prevent it from going off again. CMS Ex. 26 at 7; CMS Ex. 51 at 1. 

At about 4:15 p.m., a nurse aide (E5) saw smoke emerging from the top of the door to Room 509. When she opened the door, “fire shot out up the wall above the door and onto the ceiling.” CMS Ex. 26 at 5. The room’s two residents, R1 and R2, were in their beds and the fire was burning in the closet behind the corridor door. Sprinklers were not working. The maintenance worker (E10) appeared and started spraying the fire with a fire extinguisher. The nurse aide carried R1 to the nurses’ station and left her there. The maintenance worker moved R2 from her bed to the corridor, where he left her lying on the floor, and he returned to Room 509 to fight the fire. When the heat and smoke became too much for them, he and the nurse aide left the area. They forgot about R2 and left her lying in the corridor. CMS Ex. 26 at 5, 10. 

Another nurse aide (E7) was next door, in Room 511, when the fire broke out. She saw the employees move R1 and R2 out of their room and put R2 on the corridor floor. The smoke became so thick that she couldn’t see. Apparently she also forgot about R2; she left the facility and, from outside, she helped take other residents out. The sprinklers did not go off. CMS Ex. 26 at 6, 8. 

When the fire fighters arrived, they found “heavy smoke coming from the right rear of the building . . . with police officers and employees from the business breaking windows to remove residents . . . [who] were still inside.” CMS Ex. 20 at 2; CMS Ex. 28 at 4.

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Smoke barrier doors (which should have been closed) were standing wide open, allowing the smoke into the “Core Zone.” CMS Ex. 26 at 18; CMS Ex. 50 at 17. As the fire fighters contained the blaze, one fire fighter stepped back and literally bumped into R2, who was still lying on the floor outside her room (Room 509), where staff had left her. She grabbed the fire fighter’s arm, and he pulled her down the hall and turned her over to emergency medical services. Only a trickle of water came out of the sprinklers; no one got wet. CMS Ex. 20 at 2; CMS Ex. 26 at 18; CMS Ex. 28 at 4. 

On the same hall, the fire fighters conducted a room-by-room search. They found other victims still in their rooms: in Room 503, they found R4 in bed and took him out through a window; they found R7 sitting in his wheelchair near the window in Room 505, and, with the assistance of a nurse, they took him out through the window; R8 was in a wheelchair near the window of Room 506, and fire fighters took him out of the room and down the hallway. CMS Ex. 20 at 2-3; CMS Ex. 28 at 4. 

The evacuation itself was chaotic. No systems were in place to effect a smooth transfer; no one was in charge; facility staff were not even sure how many residents had to be accounted for. CMS Ex. 50 at 7, 99, 101; see CMS Ex. 48 at 4 (per the local hospital’s regional emergency service coordinator, “The facility had no plan on how to handle this.”); CMS Ex. 48 at 5 (recounting an argument between the corporate director of operations and a facility nurse as to the number of residents). Transfers were delayed because it took so long for staff to find resident record “face sheets” and the residents’ medications. Management had not pre-planned sheltering arrangements to keep residents out of the elements. It was hot; lightning was visible; and rain threatened. CMS Ex. 48 at 4; CMS Ex. 49 at 1. 

Emergency medical services provided care and ultimately transported residents to the hospital and other facilities. CMS Ex. 20 at 2; see CMS Ex. 48. Approximately fourteen residents were taken to the hospital. CMS Ex. 3; see CMS Ex. 52 (87-year-old woman hospitalized, suffering from smoke inhalation and exacerbation of asthma); CMS Ex. 53 (88-year-old woman hospitalized, suffering from smoke inhalation, nausea, vomiting, and fever); CMS Ex. 54 (54-year-old man hospitalized, suffering from smoke inhalation, nausea, headache, chest pain, and dyspnea); CMS Exs. 55-61. As of June 7, R2 was still hospitalized. CMS Ex. 51 at 2. 

Among the facility’s many problems regarding fire safety:

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Thus, as everyone agrees, the facility was not in substantial compliance with multiple program requirements, and its very serious deficiencies posed immediate jeopardy to resident health and safety. 

Ongoing immediate jeopardy. Immediate jeopardy exists if a facility’s noncompliance has caused or is likely to cause “serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301. CMS’s determination as to the level of a facility’s noncompliance (which would include an immediate jeopardy finding) must be upheld unless it is “clearly erroneous.” 42 C.F.R. § 498.60(c). Once CMS presents evidence supporting a finding of substantial noncompliance, it need not offer evidence to support its immediate jeopardy determination. The burden is on the facility to show that CMS’s determination is clearly erroneous. Grace Healthcare of Benton, DAB No. 2189 at 13 (2008), citing Liberty Commons Nursing & Rehab Ctr. – Johnston, DAB No. 2031 at 17-18 (2006), aff’d, Liberty Commons Nursing & Rehab Ctr. – Johnston v. Leavitt, 241 F. App’x 76 (4th Cir. 2007).

The Departmental Appeals Board has observed repeatedly that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.” Barbourville Nursing Home, DAB No. 1931 at 27-28 (2004), citing Koester Pavilion, DAB No. 1750 (2000); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9 (2007). Further, CMS’s determination that a facility’s ongoing noncompliance remains at the level of immediate jeopardy during a given period “is subject to the clearly erroneous standard of review

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under [42 C.F.R. §] 498.60(c)(2).” Rosewood Care Ctr., DAB No. 2466 at 6 (2012); Life Care of Elizabethton, DAB No. 2367 at 16, quoting Brian Ctr., DAB No. 2336 at 7-8 (2010).

Contrary to Petitioner’s claims, no one is arguing that the facility must return to substantial compliance in order to alleviate a finding of immediate jeopardy. See P. Response to MSJ at 2-4. A facility may correct the deficiencies that pose immediate jeopardy and still remain out of substantial compliance.3 However, a facility must affirmatively demonstrate that it has corrected those conditions that posed immediate jeopardy. For Petitioner to prevail, it must establish that, prior to July 21, it corrected the conditions that posed immediate jeopardy. This is a tall order. The facility’s deficiencies were obviously very serious. Before the fire, it was not a safe place for its residents;4 after the fire, it was uninhabitable. 

Indeed, inasmuch as no one could safely reside there, it is surprising that the facility was allowed to continue its program participation. Ordinarily, a facility that is devoid of residents would not be allowed to participate in the Medicare program because it does not meet the statutory definition of a skilled nursing facility. See Act § 1819(a)(1) (defining a skilled nursing facility as one “primarily engaged in providing [specified services] to residents . . . .”) (emphasis added).5

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The Board has repeatedly found that discharging an individual (resident or employee) who is at the center of an immediate jeopardy finding does not alleviate the immediate jeopardy. Rosewood Care Ctr. at 7; Florence Park Care Ctr.; Sheridan Health Care Ctr., DAB No. 2178 at 43-44 (2008). Petitioner has attempted to distinguish itself by pointing out that none of those facilities discharged all of their residents. The fact that a facility without residents does not meet the statutory definition for participation in the Medicare program may explain why the Board has not yet addressed whether a facility can reverse a finding of immediate jeopardy by getting rid of all of its residents. 

In any event, so long as a facility remains in the program, it must be safe and livable. If a facility’s conditions render it so unsafe that no one can live there (i.e., likely to cause serious harm, injury, or even death), those conditions pose immediate jeopardy. And here, the facility’s problems were not susceptible to a quick fix, which the facility recognized. It submitted lengthy and complicated plans for correction and abatement, promising to complete those corrections on July 21, 2016. CMS Exs. 15, 38; see CMS Ex. 77. 

If CMS accepts a deficient facility’s plan of correction, the facility must then timely implement all of the steps that it identified in the plan as necessary to correct the cited problems. Cal Turner Extended Care Pavilion, DAB No. 2030 at 19 (2006); see also Meridian Nursing Ctr., DAB No. 2265 (2009); Lake Mary Health Care, DAB No. 2081 at 29 (2007). Immediate jeopardy is deemed to have been removed only when the facility has implemented necessary corrective measures. Florence Park Care Ctr., DAB No. 1931 at 19 (2004), citing Fairfax Nursing Home, Inc., DAB No. 1794 (2001), aff’d. Fairfax Nursing v. Dep’t. of Health & Human Servs., 300 F.3d 835 (7th Cir. 2002), cert. denied, 537 U.S. 1111 (2003).

Here, Petitioner has not shown that it “implemented necessary corrective measures” prior to July 21. In fact, it affirms that it “was deemed safe to re-enter” on July 21. P. Response to MSJ at 1. So long as it was not “safe to re-enter,” it had not alleviated its immediate jeopardy.

Moreover, some of the facility’s immediate jeopardy deficiencies – inadequate planning; poorly trained staff – are the types of deficiencies that regulators contemplated when they specified that a facility’s return to substantial compliance would usually be established through a resurvey. 42 C.F.R. § 488.454(a). The facility promised that it would correct the immediate jeopardy deficiencies by consulting LSC experts, updating its emergency manuals, and training and testing its staff. CMS Ex. 38. If properly implemented, these interventions might help a facility eliminate the immediate jeopardy, but merely introducing them does not establish that the corrections have been made. Until the facility can demonstrate that its training and other interventions were effective, i.e., that staff capably followed the training, that management put monitoring tools in place, and that the interventions resolved the problems, the facility has not met its significant burden

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of demonstrating that it has alleviated the level of threat to resident health and safety. Oceanside, DAB No. 2382 at 19; Premier Living & Rehab. Ctr., DAB CR1602 (2007), aff’d DAB No. 2146 (2008). This can only be established over time. In determining that the facility achieved substantial compliance as of the day it was able to readmit residents, CMS was again remarkably lenient. Showing that its corrections are effective generally requires that that staff provide care to actual residents residing in the facility. 

2. The penalty imposed is not unreasonably high.

To determine whether the CMP is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f): 1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety. The absence of culpability is not a mitigating factor. The factors 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. Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1638 at 8 (1999).

Here, CMS imposes a penalty of $7,250 per day for each day of immediate jeopardy, which is in the mid-to-higher range for a per-day CMP ($3,050-$10,000). 42 C.F.R. §§ 488.408(e)(1)(iii); 488.438(a)(1)(i).6 Considering the relevant factors, the penalty is not unreasonably high.

The facility has an appalling history, particularly with regard to fire safety. Since at least 2005, it has consistently been out of substantial compliance with program requirements. CMS Ex. 12. But most disturbing are the repeated LSC violations, including those for the facility’s substandard sprinkler system:

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Thus, the facility was explicitly and repeatedly warned about its very serious fire safety problems. That it did not correct and maintain substantial compliance, by itself, justifies a significant, perhaps maximum, penalty. See H.R. Rep. No. 100-391(I), 100th Cong., 1st Sess. (1987) (expressing the goal of eliminating the “yo-yo” or “roller coaster” phenomenon); Fla. Agency for Health Care Admin. v. Bayou Shores SNF, LLC, 2016 WL 3675462 at 19 (11th Cir. July 11, 2016); Heartland Manor at Carriage Town, DAB No. 1664 (1998).

Petitioner does not claim that its financial condition prevents it from paying the CMP, although it asks that I consider the “significant financial penalties [that it] has already incurred as a result of this fire and the extreme degree to which [it] has mitigated any culpability for the fire.” P. Response to MSJ at 7. This argument turns on its head the criteria for determining the amount of a CMP. The facility gets no credit for finally correcting the serious deficiencies that were of its own making. As noted above,

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penalties should be sufficient to induce the facility to correct. Here, the penalty imposed is a fraction of the amount it cost Petitioner to repair and replace its faulty systems, which raises the question of whether such a penalty is sufficient to induce ongoing compliance.8

With respect to the other factors, facility management well knew that its fire safety systems were dangerously noncompliant. Yet, it failed to repair its sprinklers, failed to develop adequate fire-safety plans; and failed to train its staff. The facility is culpable for all of these very serious failings.

For these reasons, I find that the CMP is not unreasonably high.

Conclusion

Petitioner acknowledges that the facility’s multiple deficiencies posed immediate jeopardy to resident health and safety. It has not met its “significant burden” of establishing that it removed the immediate jeopardy and achieved substantial compliance prior to July 21, 2016. I therefore grant CMS’s motion and deny Petitioner’s. I find that, from May 31 through July 20, 2016, the facility was not in substantial compliance with program requirements, and its deficiencies posed immediate jeopardy to resident health and safety. The penalty imposed – $7,250 per day – is not unreasonably high.

• 1. The regulations governing long-term-care facilities have been revised.  81 Fed. Reg. 68688 (Oct. 4, 2016); 82 Fed. Reg. 32256 (July 13, 2017).  I apply the regulations in effect at the time of the survey.
• 2. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
• 3. In fact, the evidence here suggests that at least one state employee seemed to think that, as of July 21, the facility had eliminated the immediate jeopardy but remained noncompliant; it had not corrected all of the deficiencies cited earlier.  CMS Ex. 10.
• 4. Indeed, the penalty here could have been much more severe.  CMS could have imposed its penalty “as early as the date the facility was first out of substantial compliance.”  Florence Park Care Ctr., DAB No. 1931 at 19 (2004).  Given the condition of the facility’s sprinkler system, the absence of meaningful planning, and the inadequate staff training, the facility’s deficiencies were in place long before the time of the fire.  See CMS Ex. 12 at 1; CMS Ex. 79 at 9-10.
• 5. Had the facility’s program participation been terminated, voluntarily or otherwise, the penalties would have stopped accruing.  42 C.F.R. § 488.456(a)(2); see 42 C.F.R. § 489.52(b)(3) (providing that a cessation of business is deemed to be a termination by the provider, effective the date it stopped providing services).  On the other hand, the facility would have to re-apply and, after admitting residents (for whom there would initially be no federal reimbursement), establish that it met all statutory and regulatory requirements, which can be a lengthy and expensive process.  Act § 1819; 42 C.F.R. § 488.3.
• 6. Effective August 1, 2016, the CMP amounts increased substantially.  See 45 C.F.R. § 102.3.  CMS based its penalties on the much lower amounts that were in effect at the time of the survey.
• 7. It seems obvious – particularly considering what happened here – that the absence of a functioning sprinkler system is likely to cause serious harm to facility residents and thus warrants a finding of immediate jeopardy.  Had CMS cited the fire safety deficiencies (which were, even then, repeat deficiencies) at the immediate jeopardy level, the facility would have been required to correct within 23 days or face termination.  42 C.F.R. § 488.410(a), (c).  Much suffering might have been alleviated.
• 8. Petitioner also congratulates itself for transferring its residents, as if it voluntarily made that call.  Based on the undisputed evidence, the facility had no choice; it was not safe.  State and local authorities determined that the residents could not return, and they arranged for the transfers.