Benbrook Nursing and Rehabilitation Care Center, DAB CR5604 (2020)

DECISION

I.  Introduction

This case was reassigned to me.  In reviewing the record, I discovered a pending and fully briefed motion for summary judgment.  I decide that motion in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Benbrook Nursing and Rehabilitation Care Center, a skilled nursing facility.  I sustain the remedies that CMS imposed against Petitioner.  These remedies consist of civil money penalties and a denial of payment for new Medicare admissions, all of which I discuss below, in detail.

CMS's allegations of noncompliance relate to findings made at two surveys of Petitioner, completed on March 7 and March 26, 2017. Based on those surveys, CMS found that Petitioner failed to comply, at an immediate jeopardy level of noncompliance, with multiple Medicare participation requirements stated at 42 C.F.R. part 483.1  The remedies that CMS determined to impose address those findings of immediate jeopardy level noncompliance.

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Both CMS and Petitioner filed pre-hearing exchanges and filed numerous exhibits, including the written declarations or affidavits of proposed witnesses.  I find it unnecessary to decide whether to receive these exhibits into evidence, inasmuch as I find no disputed material facts.  However, in this decision I refer to some of these exhibits, either to illustrate facts that are not in dispute or to refute assertions of disputed facts.

II.  Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are:  (1) whether Petitioner failed to comply substantially with Medicare participation requirements; (2) whether Petitioner's noncompliance was so egregious as to constitute immediate jeopardy for residents of Petitioner's facility; and (3) whether the remedies that CMS determined to impose against Petitioner are reasonable.

B. Findings of Fact and Conclusions of Law

In deciding a motion for summary judgment, I apply the principles of Rule 56 of the Federal Rules of Civil Procedure to identify undisputed facts and resolve any question of whether facts legitimately are in dispute.

Merely claiming that a fact is in dispute does not make it so. Federal Rule 56 makes it clear that any assertion of fact, either in support of or opposing a motion for summary judgment, must be supported by admissible evidence.  Naked assertions of fact unsupported by admissible evidence are not sufficient to establish grounds for granting summary judgment or for opposing it.

A party may not prevail on a motion for summary judgment based on an asserted conclusion that defies logic or that is not grounded on admissible evidence. Rather, one must establish a basis for summary judgment or opposing its issuance premised on realistic conclusions drawn from admissible evidence.  Nor may a party prevail based on arguments of law that are incorrect or irrelevant to the issues of the case or that would not succeed if a full evidentiary hearing would be held.

I have reviewed the record of this case and the parties' arguments. The undisputed material facts establish that Petitioner failed to comply substantially with multiple Medicare participation requirements.  They establish also that Petitioner's noncompliance was so egregious as to constitute immediate jeopardy for Petitioner's residents.2  These undisputed facts fully support CMS's remedy determinations.

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All of the findings of immediate jeopardy level noncompliance emanate directly from the following facts.

On March 3, 2017, a licensed vocational nurse on Petitioner's staff incorrectly administered medication prescribed to a resident (Resident 1-A) that was supposed to be administered to another resident (Resident 2-A).3  Consequently, Resident 1-A required hospitalization in intensive care.  CMS Exhibit (Ex.) 7 at 4-7; CMS Ex. 62 at 3-4.

On March 10, 2017, Petitioner's staff failed to administer prescribed medications to Resident 1-B and to 20 additional residents (Resident 2-Resident 20).  CMS Ex. 65 at 2‑3.  At various dates and times throughout the month of March 2017, Petitioner's staff failed to administer prescribed medications to 25 other residents (Resident 21-Resident 45).  Id. at 3-4.

The medication prescribed to Resident 1-B that Petitioner's staff failed to administer on March 10 included medication to treat the resident's seizure disorder.  This resident suffered a seizure that required hospitalization on that date, after not having received his medication.  CMS Ex. 66 at 3.

These failures relate directly to Petitioner's failure to have sufficient staff on board to meet all of its residents' needs.  As of the March 2017 surveys, Petitioner did not have sufficient nurses on duty to assure that medications were administered timely to the residents.  CMS Ex. 65.

Petitioner does not deny these facts and, therefore, they are undisputed.  They describe a systemic failure by Petitioner's staff to comply with physicians' orders to administer prescribed medication to residents.

This failure violates the requirements of numerous regulations governing a skilled nursing facility's participation in Medicare.

A resident of a skilled nursing facility has "the right to be free from abuse, neglect, misappropriation of resident property, and exploitation . . . ." 42 C.F.R. § 483.12. "Neglect is the failure . . . to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress."  42 C.F.R. § 488.301.  Petitioner neglected the needs of its residents when its staff failed to provide prescribed medications to those residents or when the staff misadministered medications to residents.

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Residents of a skilled nursing facility have the right to expect that the facility's staff will execute their physicians' orders. Furthermore, the residents have the right to expect that staff will administer medications in a way that has therapeutic benefit for the residents and safely.

Here, Petitioner's staff not only failed to administer prescribed medications, but in doing so, it positively endangered the welfare of its residents.  The misadministration of medications to one resident, Resident 1-A, necessitated that resident being hospitalized under intensive care.  Another resident, Resident 1-B, suffered a seizure after staff failed to administer anti-seizure medication to him.  The resident required hospitalization to address this seizure event. Other residents were put at risk by the staff's failure to follow physicians' orders.

The facts that I have described establish more than isolated errors by Petitioner's staff.  The failures to administer medication to residents as prescribed were systemic. Petitioner's staff committed obvious, serious errors in medication administration on multiple occasions over a period that extended for about a month.

A skilled nursing facility must develop and implement written policies and procedures that prevent neglect of residents, among other things.  The facility must provide training to its staff that enables the staff to protect the facility's residents against neglect. 42 C.F.R. §§ 483.12(b)(1)-(3), 483.95(c)(1)-(3).

The facts show a failure by Petitioner to train its staff in the administration of prescribed medication.  Again and again, on numerous occasions, the staff failed to follow physicians' orders in administration of medication.  The staff did not provide medication to residents that had been prescribed for these residents and it gave medication intended to be administered to one resident to another resident.  A properly trained staff should have realized the importance of administering medication pursuant to physicians' orders.

Indeed, following physicians' orders is the essence of the services that a skilled nursing facility are required to provide to its residents. Skilled nursing facilities aren't simply boarding facilities for sick and aged individuals.  Very much to the contrary, these facilities are required by law and regulation to provide residents with items and services that are intended to address these residents' unique medical conditions.  Residents are housed in skilled nursing facilities precisely because they cannot receive the necessary medical treatment and skilled care elsewhere.  Failure to follow physicians' treatment orders, thus, is a gross dereliction of duty by a skilled nursing facility's staff.  Likewise, the failure by a facility to train its staff so that the staff does not commit such errors is an egregious violation of regulatory requirements.

The staff of a skilled nursing facility must provide its residents with services that meet a professional level of quality.  42 C.F.R. § 483.21(b)(3)(i).  A pattern of failing to provide

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medications to residents as prescribed by the residents' physicians – as the undisputed facts demonstrate – violates the requirement that care meet standards of professional quality.  As I have explained, the essence of skilled nursing care is to provide care that comports with physicians' orders.

A skilled nursing facility has the duty to ensure that there are no significant errors in administering medications to its residents. 42 C.F.R. § 483.45(f)(2). The undisputed facts obviously establish that Petitioner violated this requirement.  Indeed, the multiple errors, either of commission or omission, by Petitioner's staff established a pronounced pattern of compliance failure.

Regulations require that a skilled nursing facility have sufficient staff to provide nursing care that assures resident safety, among other things. 42 C.F.R. § 483.35(a)(1)-(4). The undisputed facts show that the systemic failure by Petitioner's staff to administer medications to residents pursuant to physicians' orders was due to a shortage of nursing personnel. Put simply, there were not enough nurses on duty at Petitioner's facility during the period covered by the March 2017 surveys to assure that each of Petitioner's residents received the correct medications and received them timely.

Petitioner's pattern of failure to provide medications to its residents pursuant to physicians' orders also constitutes substantial noncompliance with the requirements of 42 C.F.R. § 483.45(a).  This regulation imposes the duty on a skilled nursing facility to provide pharmaceutical services that assure, among other things, the accurate administration of medications to residents.

Finally, Petitioner failed substantially to comply with the administration requirements of 42 C.F.R. § 483.70.  This regulation requires a skilled nursing facility to be administered effectively and efficiently.  The inescapable inference that I draw from the systemic failure by Petitioner's staff to administer prescribed medications to residents, and from the staff's misadministration of medications to residents, is that Petitioner's management failed wholesale to assure that Petitioner's facility was properly staffed.

CMS alleges that each of these regulatory violations comprises immediate jeopardy for Petitioner's residents. I agree with that assertion. In two instances, misadministration of medications or failure to administer them resulted in residents being hospitalized (one resident being placed under intensive care).  In many other instances, Petitioner's staff plainly put residents at risk of serious harm or worse by failing to administer medications that residents' physicians deemed necessary to protect the residents or to ameliorate their medical problems.

However, immediate jeopardy arises from more than the specific failures of staff to provide residents medications as prescribed.  The extensive pattern of failures documented by the undisputed facts points only to the conclusion that there existed a very

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high likelihood that such failures would continue, barring CMS's intervention, and would lead inevitably to someone being seriously harmed, at the least. That likelihood comports precisely with the definition of immediate jeopardy.

The undisputed facts establish that the remedies that CMS determined to impose are reasonable.  These remedies include a denial of payment for new Medicare admissions for each day of a period that began on April 5, 2017 and that ran through April 16, 2017.  The remedies also included the following civil money penalties.

• $9,904 for each day of a period that began on March 3, 2017 and that ran through March 7, 2017;
• $505 for each day of a period that began on March 8, 2017 and that ran through March 9, 2017;
• $15,309 for each day of a period that began on March 10, 2017 and that ran through March 26, 2017; and
• $1,460 for each day of a period that began on March 27, 2017 and that continued through April 16, 2017.

CMS Ex. 1 at 17-20.

These penalties were based on Petitioner's noncompliance with conditions of participation at the immediate jeopardy level.  In support of these penalties, CMS cites regulatory factors for determining penalty amounts that include the seriousness of Petitioner's noncompliance, Petitioner's culpability for its noncompliance, and Petitioner's compliance history.  42 C.F.R. §§ 488.438(f)(1)-(4), 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).

The total amount of these civil money penalties is more than $341,000. However, CMS considered Petitioner's request for a waiver on grounds of financial hardship and substantially reduced the penalty amount to a total of $105,000, less than one-third of the original penalty amount that CMS imposed.  CMS Ex. 68.

As I have discussed, the penalties that CMS determined to impose relate to multiple immediate jeopardy level failures by Petitioner to comply with Medicare participation requirements.  I have sustained all of CMS's allegations of immediate jeopardy level noncompliance. However, any one of these deficiencies, all of which emanate from the same undisputed facts, is sufficient to justify the penalties that CMS determined to impose.

Petitioner's noncompliance was extremely serious.  On one occasion, the staff misadministered medication to a resident.  As a consequence, that resident required hospitalization under intensive care.  A resident who did not receive anti-seizure medication prescribed by a physician suffered a seizure and was hospitalized.  On many

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occasions, residents of Petitioner's facility were not provided medications that their physicians had determined to be necessary for these residents' health and safety.

The undisputed material facts establish that Petitioner manifested a high level of culpability for its noncompliance.  These facts establish that Petitioner's management knew or should have known that it had inadequate staffing to address the needs of its residents. Moreover, the undisputed facts show that Petitioner, despite having received notice of its noncompliance after the March 7 survey, again was noncompliant at the survey completed on March 26, 2017.  The deficiencies identified at this second survey involved the same types of noncompliance identified on March 7.  Petitioner's staff continued to fail to administer medications to residents that had been prescribed to those residents by their physicians.  CMS Ex. 65 at 2-4.

Petitioner has a prior history of noncompliance.  CMS Ex. 6.  However, I do not rely on this history to decide that the penalty amounts are reasonable. I do not find that CMS provided analysis showing that past noncompliance relates to the noncompliance that is the basis for the penalties in this case.  That said, the seriousness of Petitioner's noncompliance and its culpability for that noncompliance is more than sufficient to support the penalties that CMS determined to impose.

I have considered all of the arguments that Petitioner raised in opposition to CMS's motion for summary judgment.  I find them to be without merit.  Nothing that Petitioner asserts is an impediment to entering summary judgment against it.4

Petitioner asserts that another entity, Senior Care, purchased it in October 2016.  Petitioner's brief at 3.  Senior Care opted to continue operations under Petitioner's Medicare provider number rather than applying for a new provider number.  Id. at 4.  However, according to Petitioner, its operations were placed under new management. Petitioner asserts that its new management stepped up quality assurance activities at the facility.  The management instructed Petitioner to hire additional staff as needed.  Petitioner alleges that, under its new management's guidance, it hired multiple additional nurses and aides.  Id.

I accept Petitioner's representations about its new management and the employees added to the facility.  However, that provides no rebuttal to the facts offered by CMS.  Whatever efforts Petitioner may have made at quality assurance and hiring prior to March 2017, they do not counter the facts that CMS offered identifying the manifest and multiple deficiencies present at Petitioner's facility during the month of March.  Moreover, the new owner of a facility is responsible for addressing ongoing deficiencies,

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no matter how they arose.  Careplex of Silver Spring, DAB No. 1683 (1999); Careplex of Silver Spring, DAB No. 1627 (1997).

Indeed, Petitioner admits to the deficiencies that were identified at the March 7 survey. Petitioner's brief at 5.  It acknowledges, for example, that on March 3, 2017, Petitioner's staff administered the wrong medications to Resident 1-A.  Id. It does not deny the many instances in which Petitioner's staff failed to administer medications as prescribed by residents' treating physicians.

Petitioner contends that its quality assurance team made prompt corrective efforts to address the March 3 incident, and it complains that CMS made findings of noncompliance despite the allegedly diligent efforts of its staff.  Petitioner's brief at 5.  However, Petitioner's corrective efforts only addressed the circumstances present after noncompliance occurred.  Moreover, the noncompliance findings that were made at the March 7 survey addressed much, much more than the incident of misadministration of medication to Resident 1-A.  That misadministration constituted only a small element of the overall findings of noncompliance made at that survey.

Petitioner argues that CMS inappropriately alleges incidents of neglect when, in fact, the report of the March 7 survey only alleged failure to develop and implement policies to address neglect.  Petitioner' brief at 7.  In effect, Petitioner contends that the March 7 survey report cites to sections of the regulations that do not encompass the acts and omissions that CMS now contends constitute noncompliance.  Whatever sections of the regulations the report may have referenced, the fact remains that the text of that report accurately describes the acts and omissions that are the basis for noncompliance findings.  CMS Ex. 1.  Furthermore, the administrative law judge previously assigned to hear and decide this case afforded the parties three rounds of briefing to address the issues. Petitioner can hardly claim now that it was not given adequate notice of CMS's allegations.

Petitioner argues that, in fact, it properly implemented its medication administration and neglect prohibition policies.  According to Petitioner, it held staff training sessions on multiple dates prior to and subsequent to the March 7 survey that addressed all of the performance issues identified by CMS.  Petitioner's brief at 7-9.

Accepting those assertions as true, they do nothing to rebut CMS's allegations of noncompliance.  Whatever in-service training Petitioner may have conducted, it manifestly failed – repeatedly – to prevent the ongoing misadministration of medications and failure to administer medications at Petitioner's facility.  Indeed, these failures occurred and persisted on the very dates that Petitioner was providing in-service training to its staff.

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Petitioner responds to CMS's assertion that its staff failed to provide services that met professional standards of quality by offering a technical defense, consisting of the contention that, in its initial pre-hearing brief, CMS relied on an incorrect section of the Texas Nurse Board regulations in advocating that Petitioner's staff failed to comply with professionally recognized standards of nursing care.  Petitioner's brief at 9.

It is not necessary that I decide whether the Texas Nurse Board regulations support CMS's contentions of noncompliance.  In its motion for summary judgment, CMS bases its contentions on facts that Petitioner have not disputed and on the plain language of the governing federal regulation.  Put simply, CMS asserts that multiple failures by Petitioner's staff to administer prescribed medications, coupled with misadministration of medication to one resident, prove that Petitioner was not providing care that satisfied the regulatory requirement to provide care of a professional level of quality. Petitioner has not argued affirmatively that such gross errors by its staff met professional levels of quality.

Petitioner offers another technical defense in response to CMS's assertions that it failed to provide pharmaceutical services that met the needs of Petitioner's residents.  Petitioner contends that the applicable regulation, 42 C.F.R. § 483.45(a)(b)(1), only requires that a facility develop procedures in order to assure that appropriate pharmaceutical services are provided.  It argues that Petitioner had appropriate procedures in place, including training its staff in administering medications, and therefore cannot be found to have violated this regulation as of the March 7 survey. Petitioner's brief at 10-11.

Petitioner misreads the regulation.  The regulation does require a facility to develop and implement procedures to assure that residents receive appropriate pharmaceutical services. However, the regulation requires that those procedures assure that residents actually receive appropriate services.  42 C.F.R. § 483.45(a).  A facility cannot comply with this regulation by developing procedures if it doesn't implement them.  Here, the undisputed facts establish that Petitioner's staff failed to implement whatever procedures and protocols that Petitioner had in place.

Petitioner admits that its staff continued to commit errors in administration of medication between the March 7 and March 26 surveys. Petitioner's brief at 11.  It contends, however, that many of the deficiencies identified by surveyors at the March 26 survey actually occurred prior to the survey that was completed on March 7, 2017.  It contends that it was unfair that the surveyors cited them in the report of the second survey given that they predated the March 7 survey.  Petitioner argues also that its quality assurance committee had identified many problems at the facility and that it was undertaking vigorous efforts to correct them prior to March 26.  It asserts that it was unfair that surveyors should have cited Petitioner for continued noncompliance inasmuch as Petitioner was aware of ongoing problems and was working to address them.  Id. at 12.

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However, whatever efforts Petitioner may have made to identify and correct deficiencies, the undisputed facts show that those deficiencies persisted between March 7 and March 26.  There were repeated and frequent failures by Petitioner's staff to administer prescribed medications to residents during this period.  Those failures are all that is needed to establish that Petitioner remained noncompliant.  Whatever efforts Petitioner may have made to self-correct, they do not deny or contradict the undisputed facts showing continuing noncompliance.

That some of the facts that CMS relies on to establish continued noncompliance after March 7 relate to deficient behavior prior to March 7 does not render those facts irrelevant nor does it preclude CMS from relying on them. CMS alleges a pattern of noncompliance by Petitioner.  Facts establishing a continuum of noncompliance are relevant, even if they predate the first survey.

Petitioner argues additionally that CMS should be barred from relying on evidence that was obtained by its quality assurance committee, claiming that such evidence is privileged.  Petitioner's brief at 12-16.  Petitioner cites to nothing in federal regulations that preclude deficiency findings arising from evidence obtained by a quality assurance committee.  In fact, it is well-established that such evidence may be obtained and utilized to determine whether a facility is in compliance with participation requirements.  Jewish Home of E. Pa., DAB No. 2254 at 11-12 (2003).

The documents that Petitioner contends are privileged are medication administration records, documents that establish whether Petitioner's staff administered medication as prescribed.  They are, in fact, the principal documentation of compliance with physicians' orders to administer medication.  Petitioner cannot shield these documents from examination by surveyors by asserting that they are "privileged" due to them having been reviewed by Petitioner's quality assurance committee.  If that were possible, then a facility could insulate all of its records from review simply by placing them before a quality assurance committee.

Petitioner asserts that the review conducted by surveyors at the March 26, 2017 survey "thwarts the entire purpose of the regulations pertaining to a facility's compliance date. . . ."  Petitioner's brief at 16.  Petitioner contends that it should be exempt from findings of noncompliance during the period between March 7 and 26 because it had filed a plan of correction to address the March 7 noncompliance findings and because it was working diligently to rectify its past noncompliance.  Id.

However, the fact that a facility may be attempting to correct prior deficiencies does not immunize it from findings of additional or continuing deficiencies.  Continued noncompliance is always a basis for finding ongoing failure to comply with regulatory requirements, even when a facility is working in good faith to correct that noncompliance.  Sunshine Haven Lordsburg, DAB No. 2456 at 29 (2012), citing

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Lakeridge Villa Health Care Ctr., DAB No. 1988 at 9 (2005), aff'd, Lakeridge Villa Health Care Ctr. v. Leavitt, 202 F. App'x 903 (6th Cir. 2006).

In addressing the noncompliance findings made at the March 26 survey, Petitioner reiterates arguments that it makes in response to the findings made at the March 7 survey.  Petitioner's brief at 17-18.  I find it unnecessary to address those arguments a second time.

Petitioner responds to CMS's allegations concerning inadequate staffing by reciting the staff levels that it maintained at the time of the March 26 survey.  Petitioner's brief at 19.  Petitioner contends that the issue of whether the staffing levels are adequate is a fact dispute that cannot be resolved by summary judgment.  Id. at 19-20.

I disagree.  The issue here is not how many staff Petitioner had on board on a particular date, but whether that staff was sufficient to provide care to Petitioner's residents.  The undisputed facts establish that the staffing was manifestly inadequate.  CMS offered unrebutted facts showing that Petitioner's staff repeatedly failed to administer prescribed drugs to residents because there were not enough staff members available to perform all of the duties that were assigned to them.  Petitioner did not explicitly deny those facts.  Those facts are not impeached by Petitioner's assertions as to the number of staff members that it had on board at any moment.  However many employees Petitioner had on duty, the facts show that they were not sufficient to administer prescribed medications to Petitioner's residents.

Petitioner argues that 42 C.F.R. § 483.70 "is not a policy/procedure implementation tag, and it is not a staff supervision tag," but rather "pertains solely to allocation of resources (including financial resources) to meet the resident's needs."  From this asserted interpretation, Petitioner contends that it can offer facts showing that it allocated adequate resources to take care of its residents' needs.  Petitioner's brief at 19.

This argument rests on a misreading of the regulation.  The regulation specifically addresses management of resources.  A facility must be administered in a manner that enables it to use its resources effectively.  Compliance with this regulation requires a facility to assure that its staff conduct their jobs competently and also that the facility is provided with necessary resources.  The undisputed facts offered by CMS show that Petitioner failed to satisfy this requirement because Petitioner's management was either unaware of or tolerated repeated failures by staff to carry out their assigned duties and also because management did not provide sufficient staff to assure that all duties be performed.

Petitioner argues that its financial condition should preclude imposition of the penalties (reduced) that CMS determined to impose.  As support for this contention, it offers

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affidavits and some excerpts from financial documents that show that Petitioner lost money in 2017.  Petitioner's brief at 20-21; Petitioner's Ex. 17.

I accept these facts as true.  However, they do not show that Petitioner is incapable of paying the reduced civil money penalties that CMS ultimately imposed.  Petitioner is owned and operated by another entity.  It has offered no facts to establish the financial condition of its owner.  Even if Petitioner and its owner are technically separate entities, it is the owner's ability to pay the civil money penalties that is relevant in determining whether a financial hardship exists that should cause the penalties to be abated.  Wisteria Care Ctr., DAB No. 1892 at *8-*9 (2003).

Petitioner argues that it should not be found to be culpable for its noncompliance, citing the efforts of its management to rectify the problems that became apparent when it was purchased by Senior Care.  Petitioner's brief at 23.  Petitioner's arguments notwithstanding, it is evident that Petitioner tolerated gross failures by its staff to comply with physician's prescriptions.  Most telling is that the undisputed facts show that these failures persisted even after the March 7 survey.  As I have found, the undisputed facts show that there were multiple continued failures to administer medication as prescribed on dates after March 7, 2017.  Those post-survey failures are enough to establish a high level of culpability. Nothing offered by Petitioner rebuts those facts.

• 1. CMS also made findings of non-immediate jeopardy level compliance that I find unnecessary to address in this decision.
• 2. Applicable regulations define the term "immediate jeopardy" to mean a skilled nursing home's failure to comply with Medicare participation requirements that is so egregious as to cause, or to be likely to cause, serious injury, harm, or death to one or more facility residents. 42 C.F.R. § 488.301.
• 3. Resident numbers are designated with A or B to reflect applicable survey observation.
• 4. Petitioner entitled its reply to CMS's motion for summary judgment as "Petitioner's Response to CMS' Motion for Summary Judgment." Throughout this decision I refer to it as "Petitioner's brief."