Las Flores Convalescent Hospital, DAB CR5203 (2018)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose a per-instance civil money penalty of $10,000 against Petitioner, Las Flores Convalescent Hospital, a skilled nursing facility.

I. Background

CMS filed a pre-hearing exchange consisting of a brief (Br.) and six proposed exhibits (Exs.) that are identified as CMS Exs. 1-6. CMS’s proposed exhibits included the written direct testimony of a witness, Debra Goode, RN. CMS Ex. 6. Petitioner filed a brief and 21 proposed exhibits that are identified as P. Exs. 1-21. Petitioner’s proposed exhibits included the written direct testimony of two witnesses. P. Exs. 20-21. They also included statements of nine individuals not made under oath or penalty of perjury. P. Exs. 3-5, 8-12, 15-16.

I issued a pre-hearing order in this case that instructed the parties how they were to offer the proposed testimony of witnesses. That order instructed the parties that they must reduce all proposed witnesses’ testimony to sworn statements in affidavit or declaration form, made under oath or penalty of perjury. It instructed each party additionally that it must explicitly declare whether it intended to cross-examine any witness whose written

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direct testimony is offered by its opponent. Acknowledgment and Pre-Hearing Order, April 12, 2018 ¶¶ 7-8.

CMS did not declare that it intended to cross-examine any of Petitioner’s proposed witnesses. Petitioner did not explicitly declare that it intended to cross-examine CMS’s proposed witness. With its list of proposed witnesses Petitioner asserted that it: “reserves the right to submit additional witnesses and to call any witnesses identified by CMS in its list of proposed witnesses.” Petitioner’s Proposed List of Exhibits and Witnesses at 2.

Petitioner’s statement does not comply with the requirement of Paragraph 8 of my Acknowledgment and Pre-Hearing Order. In this case Petitioner states only generally that it might decide to call any of CMS’s proposed witnesses.

Furthermore, the statements of individuals not made under oath that Petitioner filed as P. Exs. 3-5, 8-12, 15-16 are not testimony inasmuch as these statements do not comply with Paragraph 7 of my Acknowledgment and Pre-Hearing Order. While I may admit these statements into the record I am under no obligation to find them credible inasmuch as they were not made under oath.

There is no reason to convene an in-person hearing in this case inasmuch as neither CMS nor Petitioner filed a request to cross-examine witnesses. Acknowledgment and Pre‑Hearing Order ¶ 9. I receive CMS Exs. 1-6 into evidence. I receive P. Exs. 1-21 into evidence. I explain below why I find the statements made in P. Exs. 3-5, 8-12, 15-16 not credible.

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 determination to impose a per-instance civil money penalty is reasonable.

B. Findings of Fact and Conclusions of Law

Following a survey of Petitioner’s facility on November 22, 2017, CMS asserts that Petitioner contravened two regulations governing participation of skilled nursing facilities in the Medicare program, 42 C.F.R. §§ 483.24 and 483.25(k). The first of these regulations, 42 C.F.R. § 483.24, provides among other things that a skilled nursing facility must provide the necessary care and services so that each of its residents may attain or maintain the highest practicable physical, mental, and psychosocial well-being consistent with that resident’s comprehensive assessment and plan of care. The second of

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these regulations, 42 C.F.R. § 483.25(k), which I find to be more directly implicated in CMS’s noncompliance allegations, requires a skilled nursing facility to ensure that it provides pain management to each of its residents who require such services, consistent with professional standards of practice, the resident’s comprehensive care plan, and the resident’s goals and preferences.

CMS alleges that Petitioner failed to provide pain management consistent with physicians’ orders to two of its residents, identified as Resident #s 10 and 1. CMS Br. at 2-8. It asserts that, in the cases of both of these residents, Petitioner’s nursing staff failed to take note of or respond appropriately to the residents’ complaints of pain. Id. It alleges that the staff failed to offer prescribed pain medication to either of these residents in situations where the residents were in obvious pain. Id. at 3, 6-7. CMS contends that Petitioner failed even to fill the prescriptions for pain relief medication that had been prescribed by the residents’ physicians. Id. at 5-8.

I find that the weight of the evidence strongly supports CMS’s allegations. Most disturbing, the evidence proves conclusively that Petitioner’s staff had not obtained prescribed pain medications for the two residents. From that failure, I infer that the staff was indifferent to these residents’ pain issues and unequipped to deal with them appropriately.

Resident # 10, an alert and cognitively aware individual, had several problems that caused her to experience pain. These included an open wound on her left leg at the site of an amputation. CMS Ex. 3 at 15-18, 29. The resident complained of pain on a daily basis at levels that reached 9 or 10 on a 10-point scale in which 10 represents the worst imaginable pain. Her pain was at her worst during wound care treatments. CMS Ex. 6 at 4.

On October 18, 2017, the resident’s physician prescribed medication to alleviate the resident’s pain. Prescribed medications included Norco, a medication that contains an opioid (hydrocodone). CMS Ex. 3 at 18-19. The physician ordered that the resident be administered Norco as needed. Id. at 19.

Resident # 1, an alert and cognitively aware individual, had several painful wounds on his sacrum and on both feet. CMS Ex. 2 at 9-13, 26-29, 33-35, 42-45. The resident’s physician issued orders directing Petitioner’s staff to assess the resident’s pain before and after daily wound care treatments and to prevent and alleviate the resident’s pain with Norco and with Tylenol on an as needed basis. Id. at 12, 14. The physician directed Petitioner’s staff to monitor the resident closely for pain, anticipate his need for pain medication, respond immediately to his complaints of pain, and ensure the resident’s comfort by treating his pain prior to performing wound care. Id. at 15-17.

Petitioner’s staff never obtained Norco for Resident # 10. As of November 17, 2017—a

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full month after Norco was prescribed for the resident—the prescription still had not been filled. CMS Ex. 3 at 19; CMS Ex. 6 at 6. Resident # 1’s supply of Norco ran out on November 13, 2017. CMS. Ex. 6 at 10. Petitioner’s staff had not obtained a refill of that medication as of November 17, thus leaving the resident without a supply of the medication for at least five days. CMS Ex. 1 at 21; CMS Ex. 2 at 7, 19; CMS Ex. 6 at 10.

Petitioner argues that the reason why Resident # 1’s prescription was not filled was that the resident’s physician failed to sign refill orders for that medication.1 According to Petitioner, the primary blame lies with the physician and its staff should not be faulted for the physician’s failure. I find this argument to be no defense. Petitioner may not hide behind a possible error by the physician. If the physician had, in fact, failed to sign refill orders it was Petitioner’s staff’s duty to communicate with the physician on behalf of the resident in order to assure that the prescription was refilled.

The failure to obtain prescription pain medication for Resident #s 1 and 10 meant that Petitioner’s staff was unable to carry out these residents’ physicians’ orders that the residents be supplied with medication on an as-needed basis. The physicians’ orders plainly contemplated active and ongoing intervention by Petitioner’s staff into the residents’ problems with pain. CMS Ex. 2 at 15-17; CMS Ex. 3 at 17-18. The plan for these two residents was to have Norco available for them, but also to assure that the staff anticipated the residents’ need for this medication and offer it to the residents when they responded affirmatively to the staff’s inquiries about their pain levels. Id. The fact that the staff did not bother to assure that the residents’ prescriptions were filled is proof that the staff was, at the least, insensitive to the residents’ pain issues.

Petitioner argues that, in fact, it did have a supply of Norco on hand to address the residents’ pain. P. Br. at 12-13. It is true that the staff maintained a small emergency supply of pain medication that included hydrocodone. P. Ex. 19. But, by definition, this supply was intended for emergencies. It was not supposed to be used as a supply of medication to be given to chronic pain sufferers, such as Resident #s 1 and 10. Furthermore, this emergency supply was intended to cover the emergency needs of all of Petitioner’s residents and not just the two residents whose care is at issue. Had Petitioner used the emergency supply as a stock of medication for these two residents then it would have quickly been depleted, thereby exposing other residents with emergency-related pain to the possibility that no medication would be on hand to address their needs.

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Of course, the fact is that neither Resident # 10, nor Resident # 1 (for a period of at least five days), received any opioid pain medication from Petitioner’s staff, not even from Petitioner’s emergency supply. That was the case despite the fact that these residents were complaining of pain to the extent that the staff should have at least assessed them to determine whether administering prescribed pain medication was appropriate.

As I have discussed, Resident # 10, suffering from an open amputation wound, persuasively told the surveyor that she had daily pain that reached a level of at least 9 on a scale of 10. CMS Ex. 6 at 4. Yet, the resident never received prescribed Norco. See id. at 6. There is nothing in the resident’s record to show that Petitioner’s staff listened to the resident’s complaints, assessed them, and determined that she did not need Norco. Had the staff made that determination, they would have been obligated to discuss it with the resident’s treating physician because withholding Norco would have required a new order from the physician. There is no evidence that they did that.

As was the case with Resident # 10, Resident # 1 suffered from a condition (multiple wounds) that caused him to experience ongoing pain. CMS Ex. 2 at 9-13, 42-45. His physician had ordered that the resident should be offered Norco on an as-needed basis to address this pain. Yet, Petitioner’s staff withheld Norco from the resident even when he asked for it. On November 17, 2017, in the presence of a surveyor, Resident # 1 complained that he had not received Norco for his pain. CMS Ex. 1 at 20; CMS Ex. 2 at 7. But the resident did not receive the medication on that date. CMS Ex. 2 at 19. Indeed, there was none available because the resident’s prescription hadn’t been refilled. It did not occur to Petitioner’s staff to offer the medication to the resident from Petitioner’s emergency supply.

In its defense Petitioner argues at length that when Resident #s 1 and 10 received wound care from Petitioner’s staff, the staff assessed both residents and offered pain medication to them. P. Br. at 1-2, 5-7, 11-12. From this Petitioner asserts that it complied with the physicians’ orders for these residents and with regulatory requirements. Id. at 4-15.

I find this argument to be without merit for several reasons. First, it relies on the statements of nine individuals whose written direct testimony Petitioner failed to offer in accord with the requirements of my Acknowledgment and Pre-Hearing Order. P. Br. at 5-13 citing P. Exs. 3-5, 8-12, 15. These statements are neither made under oath nor by declaration under penalty of perjury. P. Exs. 3-5, 8-12, 15. I find them not to be credible for that reason. Jennifer Matthews, DAB No. 2192 at 9 (2008). Petitioner could have, if it wished, sought declarations or affidavits from these individuals. I infer from the fact that it did not do so that the individuals who made these statements were either unable or unwilling to affirm their statements under oath. As for the two witnesses whose written direct testimony Petitioner offered—Arnel Maristela, Administrator (P. Ex. 21) and

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Renita Morgan, RN, Director of Nursing (P. Ex. 20)—neither of these witnesses was present when Petitioner’s staff provided wound care to its residents. Therefore, neither witness can credibly address the question of what Petitioner’s staff did or did not do for Petitioner’s residents while providing the wound care.

Second, the assertions in these statements are belied by undisputed facts. The individuals who made the statements may assert that they offered pain medication to the two residents on November 17, but in fact, neither of these residents had an available supply of Norco on that date. None of the individuals making the statements avers that he or she considered obtaining Norco from Petitioner’s emergency supply.

Third, these assertions address essentially the wound care provided on Petitioner’s staff on November 17. They do not address the failure of Petitioner’s staff to obtain Norco for Resident #s 1 and 10 nor do they address the failure of Petitioner’s staff to offer Norco to the residents on dates prior to November 17.

Fourth, CMS offered testimony made under penalty of perjury of Debra Goode, RN, a surveyor for the Los Angeles, California Department of Public Health, who was an eye witness to the wound care that Petitioner’s staff provided to Resident # 10 on November 17, 2017. CMS Ex. 6. I find Ms. Goode’s sworn testimony to be credible given her background and training. She testified that she saw Resident # 10 display obvious signs of pain while receiving wound treatment on November 17. Id. at 4. The nurse, a member of Petitioner’s staff, who provided treatment to the resident noticed those signs as well. See P. Br. at 5. However, she never asked the resident about the nature or intensity of her pain, she did not ascertain whether the resident received pain medication prior to receiving wound care, and she did not offer pain medication to the resident during the procedure. CMS Ex. 6 at 4.

Finally, Petitioner asserts that in providing wound care to residents it balanced its duty to address the residents’ complaints of pain with the residents’ desire to receive treatment despite experiencing pain. P. Br. at 5-7, 11-15. This is a false choice. Nothing precluded Petitioner from obtaining pain medication, as was prescribed, and offering the residents that medication prior to or during wound care. In fact, Petitioner’s duty to its residents was to treat their wounds and offer them medication to relieve their pain.

The civil money penalty that CMS determined to impose as a remedy for Petitioner’s noncompliance – $10,000 – falls midway in the range of permissible per-instance civil money penalty amounts. 42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3. Petitioner does not argue that the CMP was unreasonable and instead relies solely on its argument that the facility substantially complied with the relevant regulations. P. Br. at 4-15. I find the penalty to be entirely reasonable based not only on the seriousness of Petitioner’s noncompliance but also on its culpability. 42 C.F.R. § 488.438(f).

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The evidence establishes that two of Petitioner’s residents may have suffered needless pain due to Petitioner’s staff’s failure to comply with these residents’ physicians’ orders that their pain be monitored, assessed, and remediated with prescription pain medication. That is serious noncompliance with regulations governing skilled nursing facilities’ participation in Medicare. The regulations require that facilities do more than simply warehouse their residents. They are required to do whatever they can to identify residents’ medical and other problems and to do whatever is within reason to ameliorate those problems. 42 C.F.R. §§ 483.24, 483.25(k). Here, Petitioner failed utterly to address the pain experienced by Resident #s 1 and 10.

Moreover, Petitioner manifests a high level of culpability for its noncompliance. At the very least its staff was indifferent to the pain experienced by Resident #s 1 and 10, not offering to these residents the relief that their physicians had prescribed.

• 1. Although in making this argument Petitioner refers to Resident # 10, it is evident that Petitioner actually means Resident # 1. Petitioner’s staff never filled Resident # 10’s prescription for Norco. There was no issue about refilling the resident’s prescription because it hadn’t been filled initially. On the other hand, Resident # 1 had a prescription for Norco that expired. In that event it would have been necessary for Petitioner’s staff to obtain an order to refill the prescription.