Law-Den Nursing Home, DAB CR5696 (2020)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Law-Den Nursing Home, a skilled nursing facility.  I sustain these remedies:  termination of Petitioner’s participation in the Medicare program, effective December 12, 2018; and two per-instance civil money penalties, each in the amount of $10,482. 

I. Background

I received this case recently as a transfer from the docket of another administrative law judge.  On reviewing the record, I discovered a fully briefed motion by CMS for summary judgment.  I have reviewed the motion and supporting exhibits and I conclude that there are no disputed issues of material facts that preclude the entry of summary judgment.

CMS filed 26 exhibits, identified as CMS Ex. 1-CMS Ex. 26, in support of its motion.  Petitioner filed 20 proposed exhibits, identified as P. Ex. 1-P. Ex. 19 and P. Ex. 21, in

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opposition.1  I do not receive these exhibits into evidence inasmuch as I decide the motion for summary judgment based on undisputed material facts.  However, I cite to some of these exhibits to illustrate facts that are not disputed or to resolve claims that there are fact disputes.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether Petitioner failed to comply substantially with Medicare participation requirements and whether CMS’s remedy determinations are supported by law and are reasonable.

CMS alleges that Petitioner failed to comply substantially with four Medicare participation requirements.  However, it based its determination to impose the two per‑instance civil money penalties on Petitioner’s alleged noncompliance with only two of these requirements:  an alleged failure to comply with the requirements of 42 C.F.R. § 483.25(b)(1), a regulation governing the care of pressure sores; and an alleged failure to comply with the requirements of 42 C.F.R. § 483.25(e), a regulation governing the care of residents who are incontinent.2  I address each of those noncompliance allegations in this decision.

The two additional noncompliance findings arguably provide added support for CMS’s determination to terminate Petitioner’s Medicare participation.  I find it unnecessary to address these findings here because I find, based on the undisputed material facts, that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(b)(1) and (e).  Petitioner’s noncompliance with either of those subsections provides CMS with discretionary authority to terminate Petitioner’s Medicare participation.  42 C.F.R. § 488.456(b)(1)(i); Grand Oaks Care Ctr., DAB No. 2372 (2011).

B. Findings of Fact and Conclusions of Law

A skilled nursing facility must ensure that each resident receives care, consistent with professional standards of practice, to prevent the development of clinically avoidable

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pressure ulcers (pressure sores).  A resident with pressure sores must receive necessary treatment and services, consistent with professional standards of practice, to promote healing, prevent infection, and prevent new pressure sores from developing.  42 C.F.R. § 483.25(b)(1)(i)-(ii). 

CMS alleges that Petitioner failed to comply with these requirements in providing care for a resident who is identified as Resident 93.  The undisputed material facts amply support CMS’s allegations.

These facts, establishing noncompliance, are undisputed.

As of September 2018, Resident 93 was 75 years old.  She suffered from a variety of conditions including Alzheimer’s disease and a cerebral infarction (stroke).  She was totally dependent on Petitioner’s staff, even for repositioning in bed.  CMS Ex. 21 at 1-4. 

The resident suffered from a severe pressure sore, either at Stage III or Stage IV, on her sacrum (base of her spine).  She had recently been hospitalized for debridement of this wound.  CMS Ex. 21 at 4; CMS Ex. 15 at 8.  A Stage III pressure sore penetrates the outer layers of an individual’s skin and extends down to underlying fat.  A Stage IV pressure sore extends down to muscle tissue.  CMS Ex. 26 at 16-17; P. Ex. 10 at 3.

On September 10, 2018, the resident lay in bed on pads saturated with urine, extending from her upper back to her knees.  She did not wear an incontinence brief.  CMS Ex. 15 at 7.  On the following morning, urine saturated Resident 93’s sacral wound dressing and the underlying wound packing.  Again, the resident wore no incontinence brief.  That same afternoon, Resident 93 lay on her back, soaked with urine.  On the following morning, September 12, 2018, the resident once again lay on her back with the underlying pad saturated with urine.  Id. at 8.

These undisputed facts establish not only that Petitioner’s staff failed to keep Resident 93’s sacral pressure sore clean and dry, but also establish a blatant failure by the staff to do everything possible to promote healing of the wound.  This constitutes an obvious, indeed shocking, noncompliance with regulatory requirements.  Clermont Nursing & Convalescent Ctr. v. Leavitt,142 F. App’x 900, 904 (6th Cir. 2005).  Urine contains substances that make skin more susceptible to breakdown.  Exposing an open wound to urine is thus an invitation to further breakdown and exacerbation of the wound.  CMS Ex. 26 at 22. 

The undisputed facts establish also that Petitioner failed in other respects to comply with pressure sore treatment requirements in providing care to Resident 93. 

After repeatedly being queried about a treatment plan for Resident 93’s pressure sore, Petitioner’s staff finally produced one dated September 11, 2018.  CMS Ex. 15 at 8.  The

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September 11 care plan purports to be a revision of a plan that Petitioner’s staff “initiated” on August 25, 2018.  CMS Ex. 21 at 4.  However, Petitioner did not produce an August 25 care plan, notwithstanding being asked several times to produce one.  Nor did Petitioner produce an August 25 care plan in opposition to CMS’s motion for summary judgment.  The only reasonable inference that I can draw is that the September 11 revision is the sole care plan that Petitioner created for dealing with Resident 93’s sacral pressure sore after the resident’s surgical debridement on August 24, 2018.  CMS Ex. 15 at 8.  Petitioner produced no prior plan because none exists.

However, the September 11 plan is woefully deficient even if Petitioner implemented this plan as early as August 25.  The plan contains nothing to show how Petitioner’s staff would attempt to heal Resident 93’s sacral pressure sore.  It shows no plan of treatment other than to treat the resident’s pain and to make weekly measurements of the size of the resident’s wound.  CMS Ex. 21 at 4.  The plan states no goals.  It does not mention the specific treatment measures – such as medications – that the staff might provide the resident in order to heal the resident’s wound.  Furthermore, the plan is unsigned.  No member of Petitioner’s staff took responsibility for this plan.

The essence of a comprehensive care plan – as is required by regulations – is that it actually plans the care that a skilled nursing facility intends to provide a resident.  It is supposed to be a road map that tells the staff what to do to promote improvement in a resident’s condition.  When it comes to treating pressure sores, a care plan should explain how the staff will promote healing, prevent infection, and prevent new pressure sores from developing.  The “plan” produced by Petitioner on September 11, 2018, purports to accomplish none of those objectives.  At most, it talks about keeping the resident comfortable and it directs the staff to keep track of the size and condition of the resident’s wound.  That is not a meaningful care plan.

Furthermore, the September 11 plan of care does not discuss protecting the resident’s heels from developing pressure sores.  There is a dispute of fact as to whether the resident manifested an active pressure sore on her right heel as of September 10, 2018.  See CMS Ex. 6 at ¶¶ 21, 24; P. Ex. 1.  I do not resolve that dispute.  However, there is no dispute that the resident was prone to developing sores on her heels and that she had manifested one on her right heel in the past.  The resident wore heel protectors, apparently as a device to protect her against developing new sores on her heels.  Given that, Petitioner’s staff should have developed an explicit plan for addressing the possibility that Resident 93 might develop new pressure sores on her heels.  The record is devoid of any facts showing that Petitioner’s staff ever wrote or implemented a plan.

A skilled nursing facility must provide each resident who suffers from urinary incontinence with appropriate treatment and services to protect against the development of urinary tract infections.  42 C.F.R. § 483.25(e)(2)(iii).  The undisputed facts establish

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that Petitioner failed to provide the required protection to one of its residents, a resident who identified as Resident 30.

This resident entered Petitioner’s facility on January 17, 2018, suffering from a neurogenic bladder, a condition that causes loss of bladder control, and a history of chronic urinary tract infections.  CMS Ex. 1 at 24.  The resident had mobility problems and needed to be assisted by Petitioner’s staff in order to turn over in bed.  In March 2018 the resident received a surgically implanted suprapubic catheter that drained urine from her bladder via a tube.  CMS Ex. 6 at ¶ 53. 

Resident 30 experienced problems with her catheter in the months that followed its implantation.  In June 2018 the resident required hospital treatment for a dislodged catheter and a urinary tract infection.  CMS Ex. 6 at ¶ 54.  She experienced additional catheter problems, also requiring a hospital visit, in August 2018.  Id. at ¶ 55.

Resident 30’s care plan stated that her catheter would be changed monthly.  That did not occur.  The catheter was changed during the resident’s June and August 2018 hospital visits but there are no facts showing that Petitioner arranged for the catheter to be changed monthly according to her care plan.  CMS Ex. 6 at ¶¶ 55-57.

The catheter tube should have been anchored to Resident 30’s body in order to prevent it from becoming kinked and causing problems.  However, on September 12, 2018, the catheter was not anchored, and it was kinked under the resident’s body.  CMS Ex. 6 at ¶¶ 47, 50-51.  On that date, the blocked catheter caused urine to leak from the resident’s bladder around the catheter implantation site.  Urine pooled at the catheter site and ran down the resident’s abdominal folds.  Id. at ¶ 50.

The resident’s skin at the implantation site suffered damage.  As of September 17, 2018, Resident 30 manifested small lineal excoriations (damaged skin) and “surrounding redness/erythema below the catheter insertion site.”  P. Ex. 3.

These undisputed facts establish obvious derelictions of care by Petitioner’s staff and a failure to comply with the regulation’s requirement that the staff protect Resident 30.  First, the failure to change the resident’s catheter monthly violates her plan of care.  Second, that the staff allowed the resident’s catheter to become kinked on September 12, 2018, plainly violates not only the staff’s own instructions for the resident’s care but applicable regulatory requirements.

Petitioner had a catheter care policy that required staff to check the resident’s catheter frequently in order to assure that there were no kinks or loops in the catheter tubing and that the resident was not lying on the tubing.  Furthermore, the catheter was supposed to be secured to the resident’s thigh in order to prevent it from being pulled out.  CMS Ex. 20 at 5.  Staff failed to perform these tasks.  On September 12, the staff did not anchor the

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catheter tubing.  The tubing wound up underneath the resident’s body, where it became kinked.  As a consequence, urine backed up.  It leaked at the catheter site.  The redness and lineal excoriations that the resident displayed a few days later, on September 17, show that leaking urine injured Resident 30.

CMS imposed two per-instance civil money penalties of $10,482 each to address each of the two deficiencies that I have sustained.  I find these two penalties to be reasonable.  They are justified, not only by the seriousness of Petitioner’s noncompliance, but by Petitioner’s poor compliance history.

The reasonableness of a per-instance civil money penalty may be measured by evidence pertaining to factors described at 42 C.F.R. §§ 488.438(f)(1)-(4) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors include the seriousness of a facility’s noncompliance and its compliance history.

Petitioner’s noncompliance is extremely serious.  Its staff allowed Resident 93, an individual who was helpless by any measure, to lie unattended in her own urine for more than two days, thereby contaminating with urine a wound that had been recently treated surgically.  The staff failed to attend to Resident 30’s surgically implanted catheter, causing her to suffer the discomfort of having urine leak from the catheter site, soaking her abdomen, and irritating exposed skin and tissue.  The staff also failed to arrange for a monthly change of the resident’s catheter, notwithstanding its plan to do so.

Moreover, Petitioner has a poor compliance history.  It has been repeatedly cited for deficiencies, including failure to care for pressure sores properly.  CMS Ex. 5 at 2-3.  Some of Petitioner’s previous deficiencies were so egregious as to constitute immediate jeopardy for residents.  Id. at 3-4.

The seriousness of Petitioner’s noncompliance and its poor compliance history certainly justify the penalties that CMS determined to impose.  The penalties are made all the more reasonable by the fact that they are considerably less than the maximum amounts that CMS could have determined to impose.  CMS could have imposed per-instance penalties of double the amount of the penalties that it did impose.  It could have imposed penalties for each day of Petitioner’s noncompliance that, in total, would have greatly exceeded the amounts of the per-instance penalties. 

I have considered Petitioner’s arguments in opposition to CMS’s motion and I find them to be without merit.3

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Petitioner begins by complaining that, in its motion, CMS offers facts that were not stated in the report of the survey on which it bases its noncompliance allegations.  Petitioner’s brief at 1.  Even if that assertion is correct it provides no ground for me to reject CMS’s motion.  CMS is not limited to presenting evidence that was cited by the surveyors in their survey report.  Here, CMS has given ample notice to Petitioner of its arguments and evidence.  Petitioner had approximately one month to review and respond to CMS’s motion and the facts on which CMS relies.  I note that the records offered by CMS as exhibits in support of its motion are records created or obtained by Petitioner.

Additionally, Petitioner asserts that CMS “added facts that are not relevant to the underlying citation[s] in a blatant attempt to color the accusations.”  Petitioner’s brief at 1.  Petitioner does not identify these allegedly irrelevant facts.  Suffice it to say that the facts on which I base this decision are relevant, are grounded in the exhibits supported by CMS, and most importantly, are undisputed.

Petitioner also contends that facts offered by CMS are “exaggerated and do not comport with the testimony of Petitioner’s witnesses.”  Petitioner’s brief at 2.  In this decision I identify a fact dispute – whether Resident 93 had an active pressure sore on her heel – and emphasize that I make no findings and draw no conclusions about that disputed issue of fact.  That dispute does not derogate from my overall findings of noncompliance, based on other, undisputed facts.  Petitioner did not identify any other fact disputes that are relevant to CMS’s allegations or to my decision.

Petitioner asserts that there was a physician’s order that Resident 93 wear heel protectors.  Additionally, it contends that its staff documented the wound care that it provided to the resident.  Assuming these facts to be true, they are irrelevant to my decision.  The issue is not whether a physician prescribed the resident’s heel protectors or whether the staff documented the wound care that it provided to the resident.  Rather, the issue is whether the staff developed a comprehensive plan of care to protect this resident from incurring additional pressure sores on her feet and to treat the wound on her sacrum.  There exist no facts showing that it did.

Petitioner asserts that the kinked catheter experienced by Resident 30 comprises an isolated event.  Petitioner’s brief at 3.  It argues that findings of noncompliance should not be made based solely on that event.

I disagree.  In this case, even one failure by Petitioner’s staff to provide Resident 30 with the care that she needed harmed the resident. 

The care plan for Resident 30 created by Petitioner’s staff plainly recognized that there were potential risks to the resident resulting from a kinked catheter.  Petitioner’s policy stated that residents with catheters should be checked frequently in order to avoid precisely the accident that Resident 30 sustained.  Petitioner’s staff was supposed to

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assure that Resident 30’s catheter was not kinked and was supposed to protect the resident by anchoring the catheter tubing to the resident’s leg.  The undisputed facts establish that the staff failed to provide these basic services to the resident.  The result was that the resident lay with her abdomen soaked in urine and with exposed skin and tissue at the catheter site irritated and inflamed. 

Petitioner also contends that the damage to the resident’s skin and tissue at the site of her catheter was less severe than that averred by CMS.  Petitioner’s brief at 3.  Petitioner asserts that the resident’s physician, Dr. Eric Brooks, found only “mild redness” at the catheter site when he examined Resident 30 on September 17, 2018.  Id.  In fact, Dr. Brooks did not characterize the resident as exhibiting only mild redness.  He found “small lineal excoriations and surrounding redness/erythema below the catheter insertion site.”  P. Ex. 3.  In finding noncompliance I cite to Dr. Brooks’ observations and not to those made by surveyors.  His observations amply support my noncompliance findings.

Petitioner offered no facts or argument to challenge the reasonableness of CMS’s remedy determinations.

• 1. CMS objected to one of these exhibits, P. Ex. 1, on the ground that it is an unsigned witness declaration.  Petitioner then filed an amended P. Ex. 1, bearing the signature of the declarant.
• 2. All of my citations to regulations in this decision are to regulations that were in effect as of September 12, 2018, the date of the survey on which CMS bases its noncompliance and remedy determinations.
• 3. I refer to Petitioner’s brief in opposition to CMS’s motion as “Petitioner’s brief.”  Petitioner’s counsel did not number the pages in Petitioner’s brief.  The brief totals eight pages.