Windsor Healthcare Center of Oakland, DAB CR5056 (2018)

DECISION

We consider here a long-term-care facility’s obligation to provide a seriously ill resident with the goods and services (food, water, and the efforts it takes to provide them) that he needs to avoid harm.

Petitioner, Windsor Healthcare Center of Oakland, is a long-term care facility, located in Oakland, California, that participates in the Medicare program.  Based on a complaint investigation, completed October 8, 2015, the Centers for Medicare and Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare requirements, and that its deficiencies caused actual harm to one of its residents.  CMS has imposed a per-instance civil money penalty (CMP) of $1,750.  For the reasons set forth below, I find that the facility was not in substantial compliance with Medicare program requirements, and that the penalty imposed is not unreasonably high.

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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).

Responding to a complaint filed by the son of a facility resident, surveyors from the California Department of Public Health (state agency) visited the facility to investigate.  They completed their investigation on October 8, 2015.  CMS Ex. 1; CMS Ex. 6 at 2 (Gallow-Davis Decl. ¶¶ 3, 5).  Based on their findings, CMS determined that the facility did not comply substantially with the regulation governing staff treatment of residents, which requires the facility to develop and implement policies and procedures to prohibit mistreatment, neglect, and abuse, 42 C.F.R. § 483.13(c) (Tag F224).  CMS also determined that the isolated deficiency caused actual harm to a resident (scope and severity level G).  CMS Ex. 1.

CMS imposed against the facility a $1,750 per instance CMP.  CMS Ex. 5 at 2.

Exhibits.  With its pre‑hearing brief (CMS Br.), CMS submitted eight exhibits (CMS Exs. 1-8).  Petitioner objected to my admitting five of those exhibits (CMS Exs. 1, 2, 6, 7, and 8).  During the December 18, 2017 pre‑hearing conference, I overruled Petitioner’s objections and admitted CMS Exs. 1-8.  Order Summarizing Pre-hearing Conference at 2-3 (December 18, 2017).

With its pre‑hearing brief (P. Br.), Petitioner submitted three exhibits (P. Exs. 1-3).  CMS objected to my admitting page 29 of P. Ex. 2 and to all of P. Ex. 3.  I overruled those objections and admitted P. Exs. 1-3.  Order Summarizing Pre-hearing Conference at 3.

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Witnesses.  The initial order in this case directed the parties “to exchange as a proposed exhibit the complete, written testimony of any proposed witness” in the form of an affidavit or written declaration.  Acknowledgment and Pre-hearing Order at 5 (¶ 8) (December 30, 2015).  CMS listed three witnesses but provided no written declaration for one of them.  I therefore did not allow CMS to call that witness.  Order Summarizing Pre‑hearing Conference at 3-4.

The initial order also directed Petitioner to indicate, in its brief, whether it wished to cross-examine any of CMS’s proposed witnesses.  Acknowledgment and Pre-hearing Order at 6 (¶ 9).  Petitioner did not do so.  Instead, on the evening before the pre-hearing conference, Petitioner asked, for the first time, to cross-examine CMS’s witnesses.  This request came more than a year-and-a-half after it should have been filed; Petitioner did not explain the long delay.  I denied Petitioner’s request.  Order Summarizing Pre‑hearing Conference at 3-4.

Petitioner listed seven witnesses but provided only one written declaration, and CMS ultimately waived its right to cross-examine that witness.  Order Summarizing Pre‑hearing Conference at 4; Order Cancelling Hearing (December 28, 2017).  As there are no witnesses to cross-examine, an in-person hearing would serve no purpose and this matter may be decided on the written record.  See Acknowledgment and Pre-hearing Order at 6 (¶ 10).

The parties have also filed closing briefs (CMS Cl. Br. and P. Cl. Br.).

Issues

In accordance with the regulations governing these proceedings, I issued an order summarizing the results of the pre‑hearing conference.  In that order, I articulated the issues:

• Was the facility in substantial compliance with 42 C.F.R. § 483.13(c); and
• If the facility was not in substantial compliance, is the penalty imposed, $1,750 per instance, reasonable.

See Order Summarizing Pre-hearing Conference at 1.

In my order, I cited 42 C.F.R. § 498.50(b) and reminded the parties that they had ten days in which to object to its contents.  Order Summarizing Pre-hearing Conference at 4.  Neither party objected.  Yet, in closing briefs, the parties argue two additional issues:  whether CMS properly determined the duration of noncompliance (which affects the duration of a denial of payment for new admissions); and whether CMS properly

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determined the “G level” scope and severity.  Pursuant to my order and section 498.50(b), these issues are not before me.

In any event, CMS’s determination as to the duration of the substantial noncompliance is consistent with statutory and regulatory requirements.  42 C.F.R. § 488.454(a) and (e); see Life Care of Elizabethton, DAB No. 2367 at 16-17 (2011) (holding that a facility remains out of substantial compliance until it affirmatively demonstrates that it has achieved substantial compliance); Hermina Traeye Mem’l Nursing Home, DAB No. 1810 at 12 (2002) (holding that the facility must show that it is in substantial compliance and is capable of remaining in substantial compliance).

CMS’s scope and severity finding is not reviewable because a successful challenge would not affect the range of the CMP nor result in the facility’s losing its nurse aide training program.  42 C.F.R. § 498.3(b)(14); 498.3(d)(10); see CMS Cl. Br. at 11.

Discussion

1. The facility was not in substantial compliance with 42 C.F.R. § 483.13(c) because its staff did not provide a facility resident with the goods and services he needed – adequate food and water – to avoid harm.2

Program requirements:  “Neglect” means failure to provide a resident with the goods and services necessary to avoid his suffering physical harm, mental anguish, or mental illness.  42 C.F.R. § 488.301.  Facilities must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents.  42 C.F.R. § 483.13(c).  Failing to provide a resident with the care required by his care plan supports the conclusion that the facility is not in substantial compliance with section 483.13(c).  The Cottage Extended Care Ctr., DAB No. 2145 at 5 (2008).

In assessing whether the regulation is violated, I consider not just the number or nature of the instances of neglect, but on whether the facts surrounding an instance or instances of neglect "demonstrate an underlying breakdown in the facility’s implementation of the provisions of an anti-neglect policy.”  Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 6 (2016) (quoting Oceanside Nursing and Rehab. Ctr., DAB No. 2382 at 11 (2011)).  I therefore consider the circumstances surrounding an incident of neglect to determine whether they show “a systemic problem in implementing policies and procedures to prevent neglect.”  Southpark Meadows, DAB No. 2703 at 6 (quoting Columbus Nursing & Rehab. Ctr., DAB No. 2247 at 27 (2009)).

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Here, I have no idea what the facility’s written policies and procedures required because neither party has submitted them.  Nevertheless, CMS has not alleged that the facility lacked written policies, nor that the written policies themselves were inadequate.  I can therefore reasonably infer that, whatever their specifics, the policies prohibited resident neglect.  See Southpark Meadows, DAB No. 2703 at 7 (acknowledging a facility’s “tacit” policy).

Resident 1 (R1).  R1 was an 82-year-old man suffering from Alzheimer’s disease and left-side hemiplegia, a form of paralysis, caused by a stroke.  CMS Ex. 2 at 29.  He was totally dependent on staff for all activities of daily living, including eating.  CMS Ex. 2 at 57-58; P. Ex. 3 at 1-2 (Folsom Decl. ¶ 2).  R1 was a small man.  According to an October 25, 2014 nutritional status assessment, he was 5’2” tall and weighed 104 pounds; his weight had been stable.  CMS Ex. 2 at 60.

In R1’s care plan, dated May 14, 2015, the facility acknowledged that he was at risk for weight loss.  The plan’s goals included his maintaining adequate hydration and his maintaining a weight of at least 94 pounds, preferably increasing it to 108 pounds.  He was to consume at least 75% of his meals.  Staff were instructed to weigh him monthly, encourage fluids and eating, offer assistance, and (added on July 8) “monitor for signs and symptoms of dehydration,” notifying his physician as necessary.  The plan called for a dietary assessment, as needed.  CMS Ex. 2 at 52-53.

Staff did not monitor R1 for signs and symptoms of dehydration.  CMS Ex. 2 at 53.  These include dry lips, dry mouth, sunken eyes, decreased urine output, and skin that feels dry to the touch.  CMS Ex. 7 at 6 (Bennett Decl. ¶ 13).  Had staff noted any of these signs, they could and should have intervened to prevent kidney damage.  Dr. Michael Bennett, medical consultant for the state agency, points out that R1 could have been encouraged to drink water every hour; he could have been weighed daily to ensure that he was not losing water weight and becoming even more dehydrated.  CMS Ex. 7 at 6 (Bennett Decl. ¶ 13).  I see no evidence that staff did any of this.

Further, notwithstanding the care plan’s professed goal of assuring that R1 consumed at least 75% of his meals (in order to maintain his weight and keep him well-nourished and hydrated), the facility’s food logs show that he regularly ate less than he required:

• On July 3, he ate less than half of his breakfast and less than half of his lunch;
• On July 4, he ate none to 25% of his dinner;
• On July 5, he ate less than half of his lunch; there is no record of his eating dinner;

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• On July 6, he ate less than half of his breakfast and less than half of his lunch; again there is no record of his eating dinner;
• On July 8, he ate less than half of his breakfast and less than half of his lunch;
• On July 9 and 10, he ate none to 25% of his dinner;
• On July 11, he ate none to 25% of his breakfast and none to 25% of his dinner;
• On July 12, he ate less than half of his dinner;
• On July 13, he ate less than half of his breakfast and none to 25% of his lunch;
• On July 14, he ate less than half of his breakfast and none to 25% of his lunch; again, there is no record of his eating dinner;
• On July 15, he ate less than half of his breakfast and none to 25% of his dinner;
• On July 16, he ate less than half of his breakfast, less than half of his lunch, and none to 25% of his dinner;
• On July 17, he ate less than half of his dinner;
• On July 18, he ate none to 25% of his breakfast, none to 25% of his lunch, and less than half of his dinner.

CMS Ex. 2 at 45-46; CMS Ex. 6 at 3 (Gallow –Davis Decl. ¶ 7); P. Ex. 2 at 7-10.

Unquestionably, R1’s food consumption was not adequate to prevent malnutrition and dehydration.  As Dr. Bennett points out, the body derives significant fluids from food, so failing to ensure that the resident eats properly contributes to dehydration.  CMS Ex. 7 at 3 (Bennett Decl. ¶ 9).  By not assuring that R1 was eating well, the facility was setting him up to become dehydrated as well as malnourished.  And, given R1’s fragility, he was at risk of becoming malnourished or dehydrated very quickly.  CMS Ex. 7 at 5 (Bennett Decl. ¶¶ 11, 12).

In his written declaration, R1’s physician, Dr. Douglas Folsom, criticizes Dr. Bennett’s opinion, declaring that it “is not medically supportable to assume that [R1] should have been eating 100% of his meals instead of a variant.”  P. Ex. 3 at 3 (Folsom Decl. ¶ 6).  Neither Dr. Bennett nor anyone else suggested that R1 was expected to eat 100% of his meals.  However, the facility, by means of his care plan, determined that R1 should eat at least 75% of his meals.  As his physician, Dr. Folsom would have been part of the

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interdisciplinary team that developed that plan.  42 C.F.R. § 483.20(k)(2)(ii).  Had the goal become unrealistic, the facility’s interdisciplinary team should have revised it to reflect that change.  42 C.F.R. §§ 483.20(b)(2)(ii); 483.20(k)(2)(iii).  The facility did not do so.

Nevertheless, someone must have recognized that R1’s well-being was compromised because, on July 7, 2015, his physician ordered weekly weight checks for four weeks and a consultation with the dietician.  CMS Ex. 2 at 44.

It took a week to obtain the dietary consult.  Significantly, when the dietician assessed R1, he had not been weighed for a week, so the data the dietician relied on was already out‑of-date.  Nevertheless, the dietary notes, dated July 14, 2015, indicate that R1’s weight had dropped significantly between May 12 and July 7.  On May 12, 2015, he weighed 99.8 pounds.  On June 5, he weighed 98.2, and on July 7, he was down to 94.2 pounds.  CMS Ex. 2 at 43, 48; P. Ex. 2 at 14.  For someone with R1’s low body weight, this should have set off alarms and prompted an immediate response.

The dietician determined that the resident’s nutrition needs were “likely” not being met and directed staff to increase his dietary supplement (Medpass), and change his food to fortified purees.  The dietician set a weight goal of 108 pounds and reiterated that R1 should be weighed weekly for four weeks.  CMS Ex. 2 at 43.  But the facility did not implement any of these recommendations until the day they sent R1 to the hospital, July 19.  Indeed, notwithstanding the dietician’s directive and his physician’s order for weekly weight checks, the facility did not weigh R1 again after July 7.  CMS Ex. 2 at 48-49.

The facility’s inattention to R1’s needs had dire consequences.  Returning from a vacation, R1’s son visited the facility on July 18, 2015.  He had not seen his father for about three weeks and was deeply disturbed by the changes in his father’s appearance.  When he last saw his father (on June 28), the older man’s face was full; now, R1 “had sunken temples and eyes” and “appeared to look like a corpse.”  His oral intake was poor.  The son insisted that his father be sent to the hospital.  CMS Ex. 2 at 8, 29; CMS Ex. 6 at 2 (Gallow-Davis Decl. ¶ 5); CMS Ex. 7 at 2 (Bennett Decl. ¶ 5).

R1 was admitted to the hospital on July 19, 2015, “thrashing about,” in obvious distress.  He was severely dehydrated and suffering from hypernatremia (high sodium levels) and malnutrition, which caused acute renal failure and injured his kidneys.  CMS Ex. 2 at 19‑20, 25; CMS Ex. 6 at 3 (Gallow-Davis Decl. ¶ 6); CMS Ex. 7 at 2-3 (Bennett Decl. ¶ 5).  His kidney injury and “was avoidable and preventable with adequate nursing care and supervision.”  CMS Ex. 7 at 6 (Bennett Decl. ¶ 14).

Upon admission, R1 weighed just under 91.5 pounds.  CMS Ex. 2 at 24, 28.  In about two months (May 12 to July 19), he had lost more than 8% of his body weight.  Plainly, he had not been consuming enough water, protein, and calories.  CMS Ex. 7 at 3 (Bennett

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Decl. ¶ 8).  The hospital started him on “fluid resuscitation,” i.e., it began to rehydrate him.  CMS Ex. 2 at 33.  The hospital reported that, while there, he was “eating his meals well.”  CMS Ex. 2 at 26.  His hospital physician opined that his malnutrition was “likely due to his dementia and inability to feed [himself], however, when fed, he eats well.”  CMS Ex. 2 at 27 (emphasis added).

On July 28, R1 was discharged from the hospital to a different facility and placed in hospice care.  R1 died on August 9, 2015.  CMS Ex. 2 at 42, 56; CMS Ex. 6 at 3 (Gallow-Davis Decl. ¶ 6).

Petitioner argues that R1’s malnutrition and dehydration (and, presumably, kidney damage) were the inevitable result of his declining health.  Dr. Folsom testified that he offered the family more aggressive interventions, including tube feeding, but they declined.  He noted that he could neither force the family to accept the intervention nor “force a resident to eat when [he] decline[s].”  P. Ex. 3 at 2 (Folsom Decl. ¶ 3).  The problem with Dr. Folsom’s assertions is that they presume that R1 was unable or unwilling to eat.  The evidence does not support that presumption.  In fact, the opposite is true.  R1’s care plan reflects the professional staff’s conclusion that he was capable of eating at least 75% of his meals, so long as staff provided him the assistance he needed.  CMS Ex. 2 at 52-53.  And this turned out to be true.  While in the hospital, he received the assistance he needed and ate well.  CMS Ex. 2 at 26, 27.

Moreover, that a resident’s condition is terminal does not excuse the facility for neglecting him.  Death may be unavoidable, but, as the Departmental Appeals Board has pointed out, timely and appropriate interventions can improve the resident’s condition and quality of life.  The Cottage Extended Care, DAB No. 2145 at 9 (2008).  Further, a facility’s failure to provide one resident with necessary care and services poses a potential threat for more than minimal harm to other residents because they are not assured that they will receive necessary care and services when the need arises.  Id.

The facility failed to provide R1 with the goods and services he needed – food and water and the efforts it took to provide them effectively – so that he would avoid suffering physical harm and likely mental anguish.  Staff did not implement the resident’s care plan; they did not follow the physician’s order nor the dietician’s directive.  R1 was neglected, multiple staff members at all levels contributed to that neglect, which shows a systemic problem in the facility’s implementing its policies to prevent neglect.  The facility was therefore not in substantial compliance with 42 C.F.R. § 483.13(c); see Southpark Meadows, DAB No. 2703 at 6.

2. The penalty imposed is not unreasonably high.

To determine whether a 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

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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 section 488.438(f) 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 per instance penalty of $1,750, which is at the very low end of the range for a per-instance CMP ($1,000-$10,000), and is especially modest considering what CMS might have imposed.  42 C.F.R. § 488.408(e)(1)(iv); see Plum City Care Ctr., DAB No. 2272 at 18-19 (2009) (observing that even a $10,000 per-instance CMP can be “a modest penalty when compared to what CMS might have imposed”).

Petitioner maintains that its compliance history is “not alarming.”  P. Cl. Br. at 5.  In fact, the facility’s compliance history is abysmal.  In the annual survey immediately preceding this complaint investigation, which was completed on May 26, 2015, the facility was not in substantial compliance with multiple program requirements, and its deficiencies posed immediate jeopardy to resident health and safety.  CMS Ex. 8.  Most significant, it was not in substantial compliance with section 483.13(c) (Tag F224) at scope and severity level K, which means a pattern of noncompliance that poses immediate jeopardy to resident health and safety.  CMS Ex. 8 at 6-26.

Nor was that the only serious citation.  The facility was not in substantial compliance with an alarming number of other requirements.  Some of its deficiencies caused actual harm to facility residents and others posed immediate jeopardy:

• 42 C.F.R. § 483.10(e) (Tag F164 – resident rights:  privacy and confidentiality) at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.13(c) (Tag F226 – policies to prohibit abuse and neglect) at scope and severity level E (pattern of noncompliance that causes no actual harm with the potential for more than minimal harm);

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• 42 C.F.R. § 483.15(e)(1) (Tag F246 – quality of life:  accommodation of needs) at scope and severity level D;
• 42 C.F.R. § 483.15(h)(2) (Tag F253 – quality of life: environment/housekeeping and maintenance) at scope and severity level D;
• 42 C.F.R. § 483.15(h)(3) (Tag F254 – quality of life:  environment/bed and bath linens) at scope and severity level D;
• 42 C.F.R. § 483.20(b)(2)(i) (Tag F273 –resident assessment:  comprehensive assessments) at scope and severity level D;
• 42 C.F.R. § 483.20(g) – (j) (Tag F278 – resident assessment:  accuracy, coordination, certification, falsification) at scope and severity level E;
• 42 C.F.R. §§ 483.20(d) and 483.20(k)(1) (Tag F279 – resident assessment:  comprehensive care plans) at scope and severity level E;
• 42 C.F.R. § 483.20(k)(3)(i) (Tag F281 – resident assessment:  professional standards of quality) at scope and severity level E;
• 42 C.F.R. §§ 483.20(e) and 483.20(m) (Tag F285 – resident assessment:  coordination/preadmission screening) at scope and severity level D;
• 42 C.F.R. § 483.25 (Tag F309 – quality of care) at scope and severity level G;
• 42 C.F.R. § 483.25(c) (Tag F314 – quality of care:  preventing pressure sores) at scope and severity level D;
• 42 C.F.R. § 483.25(k) (Tag F328 – quality of care:  special needs) at scope and severity level D;
• 42 C.F.R. § 483.25(m)(1) (Tag F332 – quality of care:  medication error rates) at scope and severity level E;
• 42 C.F.R. § 483.25 (m)(2) (Tag F333 – quality of care:  significant medication errors) at scope and severity level J (isolated instance of noncompliance that poses immediate jeopardy to resident health and safety);
• 42 C.F.R. § 483.30(a) (Tag F353 – nursing services:  sufficient staff) at scope and severity level E;

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• 42 C.F.R. § 483.60(b), (d), and (e) (Tag F431 – pharmacy services: consultation, labeling, and storage) at scope and severity level F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm); and
• 42 C.F.R. § 483.65 (Tag F441 – infection control) at scope and severity level L (widespread substantial noncompliance that poses immediate jeopardy to resident health and safety).

CMS Ex. 8.  Nor was the facility in substantial compliance in the three annual surveys immediately preceding the May 2015 survey.  CMS Ex. 4.  The facility’s history, by itself, justifies a CMP much higher than the relatively small one CMS has imposed here.

Petitioner does not claim that its financial condition affects its ability to pay the CMP.

With respect to the remaining deficiencies, I consider the facility’s neglect here very serious.  R1 needed adequate amounts of food and water, and he was completely reliant on facility staff to meet those needs.  Yet, for weeks he did not consume the amount of food his care plan called for.  When his physician ordered staff to check his weight weekly, they did not.  They did not monitor him for signs and symptoms of dehydration, as called for in his care plan.  They did not implement the dietician’s recommendations.  These failures show the facility’s high degree of neglect, indifference, and disregard for the resident’s care, comfort, and safety, for which the facility is culpable.

For these reasons, I find that the extremely modest penalty imposed is not unreasonably high.

Conclusion

For the reasons discussed above, I find that the facility was not in substantial compliance with 42 C.F.R. § 483.13(c) and the amount of the penalty is not unreasonably high.

• 1. The regulations governing long-term-care facilities have been revised. 81 Fed. Reg. 68688 (October 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 bold and italics, as captions in the discussion section of this decision.