SUBJECT:

Beverly Healthcare Eupora,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

Petitioner, Beverly Healthcare Eupora, violated 42 C.F.R. � 483.25 ⁽¹⁾ (Tag F309) ⁽²⁾ on June 21, 2004. There is a basis for the imposition of an enforcement remedy. A civil money penalty (CMP) of $5050 per day for two days, a total CMP of $10,100, is reasonable. Further, Petitioner is properly subject to the prohibition on conducting a nurse aide training and competency evaluation program (NATCEP) for two years.

I. Background

Petitioner is a long-term care facility located in Eupora, Mississippi. Petitioner is certified to participate in the federal Medicare program as a skilled nursing facility (SNF) and in the Mississippi Medicaid program as a nursing facility (NF). On March 3, 2005, the Mississippi State Department of Health (the state agency) completed a complaint survey of Petitioner's facility finding violations of 42 C.F.R. �� 483.13(c)(1)(ii) (Tag F225), 483.20(k)(2) (Tag F280), 483.25 (Tag F309), and 483.65(a)(1)-(3) (Tag F441). The state agency forwarded the survey to the Centers for Medicare & Medicaid Services (CMS). On March 29, 2005, CMS sent Petitioner a notice advising that, based upon the survey findings, it was imposing a CMP of $6500 per day for March 1 and 2, 2005, and a CMP of $200 per day, effective March 3, 2005, until Petitioner achieved substantial compliance with regulatory requirements or its provider agreement was terminated. CMS further advised Petitioner that it would impose a denial of payment for new admissions (DPNA) effective March 31, 2005, that termination would be effective September 3, 2005, if substantial compliance was not achieved before that date, and that Petitioner was ineligible to offer a NATCEP for a period of two years based upon the extended survey that was done. Joint Stipulation; CMS Exhibits (CMS Exs.) 1, 5; Petitioner's Exhibit (P. Ex.) 2.

On April 5, 2005, the state agency conducted a revisit survey of Petitioner's facility and determined that Petitioner had achieved substantial compliance with regulatory requirements effective March 25, 2005. As a result of finding Petitioner had returned to substantial compliance, the DPNA and termination remedies were cancelled. Joint Stipulation; CMS Ex. 17; P. Exs. 3, 4. Petitioner requested informal dispute resolution (IDR) through the state agency, which led to the reduction in the alleged severity of three of the cited deficiencies. Joint Stipulation; CMS Ex. 18; P. Exs. 5, 6, 7. CMS accepted the results of the IDR and, on July 28, 2005, CMS notified Petitioner that the CMP was reduced to $5050 per day for March 1 and 2, 2005, and to $100 per day for the period March 3 through 24, 2005. Joint Stipulation; CMS Exs. 20, 22.

Petitioner requested a hearing by letter dated May 24, 2005. The case was assigned to me for hearing and decision on June 23, 2005. Prior to hearing, the parties achieved a settlement agreement resolving all issues other than whether Petitioner was in violation of 42 C.F.R. � 483.25; whether the proposed CMP of $5050 per day, for March 1 and 2, 2005, was reasonable; and whether withdrawal of Petitioner's authority to conduct a NATCEP for two years was required. Joint Stipulation; Transcript (Tr.) 21-23.

I convened a hearing in Starkville, Mississippi, on November 30, 2005. CMS offered CMS Exs. 1, 2, 5, 6, 8, 9, 13 through 20, and 22 through 26, all of which were admitted as evidence. Petitioner offered, and I admitted as evidence, P. Exs. 1 through 17. Tr. 14-16. Sherrie McElwain (Surveyor McElwain), a registered nurse who conducted the survey in issue, testified for CMS. Petitioner elicited testimony from Lorna Patterson, a licensed practical nurse (LPN Patterson); Judy Otts, a registered nurse (RN Otts); and Charles Ozborn, M.D. (Dr. Ozborn). The parties submitted post-hearing briefs (CMS or P. Brief) and post-hearing reply briefs (CMS or P. Reply).

II. Discussion

A. Findings of Fact

The following findings of fact are based upon the exhibits admitted and the testimony at hearing. Citations to exhibit numbers or to the hearing transcript related to each finding of fact may be found in the Analysis section of this decision, if not indicated here.

1. Resident 1 was admitted to Petitioner's facility on March 27, 2002, with diagnoses including insulin dependent diabetes mellitus, aphasia, anemia, hypertension, acute myocardial infarction, coronary artery disease, and chronic renal failure. CMS Ex. 9, at 5; CMS Ex. 19, at 8, 9.

2. Hypoglycemia, commonly referred to as low blood sugar or glucose, is

[A]n abnormally diminished concentration of glucose in the blood, which may lead to tremulousness, cold sweat, piloerection, hypothermia, and headache, accompanied by irritability, confusion, hallucinations, bizarre behavior, and ultimately, convulsions and coma.

Dorland's Medical Dictionary 804 (27^th ed. 1988); CMS Ex. 23, at 1.

3. Resident 1 had a physician's order dated June 3, 2004, that specified that if her blood sugar was less than 60 or greater than 400 her physician was to be notified. CMS Ex. 9, at 6; P. Ex. 16, at 2.

4. On June 21, 2004, at 4:00 a.m., LPN Patterson checked Resident 1's blood sugar and found that it was 39, indicating that Resident 1 was suffering from hypoglycemia. CMS Ex. 9, at 16; P. Ex. 11, at 7.

5. LPN Patterson recorded in a nursing note, at 6:21 a.m. on June 21, 2004, that when she checked Resident 1 at 4:00 a.m., the "resident was unresponsive to stimuli" (CMS Ex. 9, at 16; P. Ex. 11, at 7), which she testified meant that the resident was not comatose or unconscious, she could move her arms, was not verbal (Tr. 89), could not swallow (Tr. 91), and had her eyes closed (Tr. 97).

6. Upon discovering that Resident 1's blood sugar was only 39, LPN Patterson attempted to have her swallow water thickened with sugar and honey (CMS Ex. 9, at 16; P. Ex. 11, at 7), which she could not swallow and it ran out of her mouth (Tr. 91).

7. When Resident 1 was unable to swallow the water thickened with sugar and honey, LPN Patterson placed the sugar from eight packets of sugar in Resident 1's mouth and that, on recheck, caused Resident 1's blood sugar to increase to 42. CMS Ex. 9, at 16; P. Ex. 11, at 7.

8. At 4:20 a.m. on June 21, 2004, after rechecking Resident 1's blood sugar and finding it at 42, LPN Patterson called the resident's physician, and he ordered that the emergency medical service at the hospital be contacted to come and start administration of glucose intravenously (IV glucose). CMS Ex. 9, at 16; P. Ex. 11, at 7.

9. The administration of IV glucose, at about 4:30 a.m. on June 21, 2004, increased Resident 1's blood sugar to 280, she was "immediately aroused" and was fed bananas and ice cream. CMS Ex. 9, at 16; P. Ex. 11, at 7; Tr. 97.

10. Petitioner's policy for a resident experiencing hypoglycemia and unable to take food or fluids by mouth was to administer glucagon and call 911 (emergency medical services). CMS Ex. 9, at 38; P. Ex. 17, at 2

11. LPN Patterson did not know that the facility policy was to administer glucagon for a resident that was unconscious or unable to take food or fluids by mouth and she was not aware whether or not glucagon was available in the facility. Tr. 98-99, 103-04.

12. The standard of care applicable in the case of Resident 1, who experienced hypoglycemia at about 4:00 a.m. on June 21, 2004 and was unable to take food or fluids by mouth, was to administer glucagon, and LPN Patterson failed to administer glucagon. Tr. 111, 116-17, 131-32.

13. Facility policy reflected the applicable standard of care, but the policy was not followed. CMS Ex. 9, at 38; P. Ex. 17, at 2; Tr. 98-99, 103-04.

14. If, due to an episode of hypoglycemia, an individual is unresponsive or unable to take food or drink by mouth, placing sugar in their mouth to raise their blood glucose is not the current standard of care. CMS Ex. 23; CMS Ex. 9, at 38; P. Ex. 17, at 2; Tr. 110-11, 116-17, 131-32.

15. LPN Patterson violated the standard of care applicable in the situation of Resident 1, by attempting to use packets of granulated sugar to raise the blood sugar level of the resident, who could not take food or fluids by mouth, as demonstrated by the failed attempt to use thickened liquid, and then rechecking blood sugar levels rather than administering glucagon.

B. Conclusions of Law

1. Petitioner timely requested a hearing and I have jurisdiction.

2. Pursuant to 42 C.F.R. � 483.25, each resident of a facility, such as Petitioner's, must receive, and the facility must provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident's comprehensive assessment and plan of care.

3. CMS made a prima facie showing that Petitioner failed to provide the necessary care and services to Resident 1, based upon LPN Patterson's failure to provide Resident 1 care consistent with the standard of care for a hypoglycemic episode that Resident 1 experienced at about 4:00 a.m. on June 21, 2004, i.e., LPN Patterson failed to administer glucagon.

4. The CMS determination that there was immediate jeopardy with respect to the violation of 42 C.F.R. � 483.25 was not clearly erroneous.

5. A $5050 CMP for each of two days of noncompliance, a total CMP of $10,100, is reasonable.

6. Petitioner is properly subject to the prohibition on conducting a NATCEP for two years.

C. Issues

The issues in this case are:

Whether there is a basis for the imposition of an enforcement remedy; and,

Whether the remedy imposed is reasonable.

D. Applicable Law

The statutory and regulatory requirements for participation by a long-term care facility are found at sections 1819 and 1919 of the Social Security Act (Act) and at 42 C.F.R. Part 483. Sections 1819 and 1919 of the Act vest the Secretary with authority to impose remedies, such as a CMP, against a long-term care facility for failure to comply substantially with federal participation requirements. The Secretary has delegated this authority to CMS and the states.

Facilities that participate in Medicare may be surveyed on behalf of CMS by state survey agencies in order to determine whether the facilities are complying with federal participation requirements. 42 C.F.R. �� 488.10-488.28, 488.300-488.335. Pursuant to 42 C.F.R. Part 488, CMS may impose a per instance or per day CMP against a long-term care facility when a state survey agency concludes that the facility is not complying substantially with federal participation requirements. 42 C.F.R. �� 488.406, 488.408, 488.430. The regulations in 42 C.F.R. Part 488 also give CMS a number of other remedies that can be imposed if a facility is not in compliance with Medicare requirements. Id. Pursuant to 42 C.F.R. � 488.301, "(i)mmediate jeopardy means a situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." (Emphasis in original.) Further, "(s)ubstantial compliance means a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." Id. (Emphasis in original.)

The regulations specify that a CMP that is imposed against a facility on a per day basis will fall into one of two ranges of penalties. 42 C.F.R. �� 488.408, 488.438. The upper range of CMP, of from $3,050 per day to $10,000 per day, is reserved for deficiencies that constitute immediate jeopardy to a facility's residents, and, in some circumstances, for repeated deficiencies. 42 C.F.R. �� 488.438(a)(1)(i), (d)(2). The lower range of CMP, from $50 per day to $3,000 per day, is reserved for deficiencies that do not constitute immediate jeopardy, but either cause actual harm to residents, or cause no actual harm, but have the potential for causing more than minimal harm. 42 C.F.R. � 488.438(a)(1)(ii).

The Act and regulations make a hearing before an administrative law judge (ALJ) available to a long-term care facility against whom CMS has determined to impose a CMP. Act, section 1128A(c)(2); 42 C.F.R. �� 488.408(g), 498.3(b)(13). The hearing before an ALJ is a de novo proceeding. Anesthesiologists Affiliated, et al, DAB CR65 (1990), aff'd, 941 F.2d 678 (8^th Cir. 1991). A facility has a right to appeal a "certification of noncompliance leading to an enforcement remedy." 42 C.F.R. � 488.408(g)(1); see also 42 C.F.R. �� 488.330(e) and 498.3. However, the choice of remedies by CMS or the factors CMS considers when choosing remedies are not subject to review. 42 C.F.R. � 488.408(g)(2). A facility may only challenge the scope and severity level of noncompliance found by CMS if a successful challenge would affect the amount of the CMP that CMS could collect or impact upon the facility's NATCEP. 42 C.F.R. �� 498.3(b)(14) and (d)(10)(i). CMS's determination as to the level of noncompliance "must be upheld unless it is clearly erroneous." 42 C.F.R. � 498.60(c)(2). This includes CMS's finding of immediate jeopardy. Woodstock Care Center, DAB No. 1726, at 9, 38 (2000), aff'd, Woodstock Care Center v. Thompson, 363 F.3d 583 (6^th Cir. 2003). The Departmental Appeals Board (the Board) has long held that the net effect of the regulations is that a provider has no right to challenge the scope and severity level assigned to a noncompliance finding, except in the situation where that finding was the basis for an immediate jeopardy determination. See, e.g., Ridge Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000). Review of a CMP by an ALJ is governed by 42 C.F.R. � 488.438(e).

When a penalty is proposed and appealed, CMS must make a prima facie case that the facility has failed to comply substantially with federal participation requirements. "Prima facie" means that the evidence is "(s)ufficient to establish a fact or raise a presumption unless disproved or rebutted." Black's Law Dictionary 1228 (8^th ed. 2004). See also, Hillman Rehabilitation Center, DAB No. 1611, at 8 (1997), aff'd Hillman Rehabilitation Center v. U.S. Dept. of Health and Human Services, No. 98-3789 (GEB) (D.N.J. May 13, 1999). To prevail, a long-term care facility must overcome CMS's showing by a preponderance of the evidence. Batavia Nursing and Convalescent Center, DAB No. 1904 (2004); Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Center, DAB No. 1665 (1998); Hillman Rehabilitation Center, DAB No. 1611.

E. Analysis

1. Petitioner violated 42 C.F.R. � 483.25 (Tag F309).

The general quality of care standard is established by 42 C.F.R. � 483.25, which provides:

Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.

CMS alleges that Petitioner violated this requirement in the case of Resident 1. Based on the findings of the state agency, CMS alleges that Petitioner violated 42 C.F.R. � 483.25 (Tag F309) by failing to provide necessary care and services for Resident 1 when it was determined that her blood sugar was low, as Petitioner failed to notify the physician of the abnormal results and failed to follow the facility policy and procedure for treatment of diabetics who experience hypoglycemia. CMS Ex. 19, at 7. ⁽³⁾ The surveyors allege in the SOD that Petitioner had a policy that required calling 911 and administration of glucagon for a resident experiencing hypoglycemia; that Petitioner's June 2004 Medication Administration Record (MAR) for Resident 1 reflects low blood sugar results for the resident twice on June 19, 2004 without documentation in the resident's records of contact with her physician, nursing intervention, or compliance with Petitioner's policy; that Resident 1 experienced hypoglycemia on June 21, 2004, the details of which are set forth under my Findings of Fact; that subsequently, on June 21 at about 11:42 a.m., the resident ceased breathing, cardiopulmonary resuscitation was successfully initiated, and the resident was transferred to the hospital; that interviews of five nurses revealed that they were unaware of the existence of a written facility policy regarding hypoglycemia; and that the facility's failure to provide care and services for Resident 1 was the basis for the allegation that there was immediate jeopardy for Petitioner's residents. ⁽⁴⁾ CMS Ex. 19, at 6-13.

The focus of the parties at hearing and in their briefs was primarily upon the incident involving Resident 1 that began at about 4:00 a.m. on June 21, 2004. According to the change in condition report prepared by LPN Patterson, and as augmented by her testimony (CMS Ex. 9, at 16; Tr. 83-105), upon checking Resident 1 at 4:00 a.m. on June 21, 2004, the resident was "unresponsive to stimuli." CMS Ex. 9, at 16. Nurse Patterson explained in testimony that her use of this phrase may have been inaccurate to the extent that the resident was not unconscious, but rather did not respond to physical stimuli in the ususal way. The resident also had unusual respiration. LPN Patterson had cared for Resident 1 on the night shift for an extended period and was very familiar with her presentation. LPN Patterson, being familiar with the fact that Resident 1 suffered from diabetes and had problems with fluctuating blood sugar levels, decided to check the resident's blood sugar, which registered very low at 39, a hypoglycemic level. LPN Patterson then attempted to give the resident thickened water with sugar and honey in an attempt to increase the resident's blood sugar level. LPN Patterson explained that the liquid had to be thickened, as Resident 1 had a problem with dysphagia, i.e., trouble swallowing. The attempt to use the thickened liquid failed, however, as Resident 1 could not be roused enough to swallow. According to LPN Patterson, Resident 1 "started to strangle" on the liquid so she ceased that intervention. CMS Ex. 9, at 16. LPN Patterson then put the contents of eight packets of sugar under the resident's tongue. The second intervention succeeded in raising Resident 1's blood sugar to 42, still at a hypoglycemic level. At about 4:20 a.m., LPN Patterson called the resident's treating physician, Dr. Ozborn, and he ordered that the resident be given IV glucose. LPN Patterson, who is not certified to begin an IV, contacted the emergency medical service at the hospital (which is across the street from Petitioner's facility) and paramedics came to the facility and started the IV. Resident 1 responded immediately and roused from her minimally responsive state. CMS Ex. 9, at 16; Tr. 83-105; CMS Ex. 9, at 12, 13, 15; P. Ex. 11, at 7-8.

Petitioner has a policy entitled "Clinical Guide: Blood Glucose Testing/Assessment/ Documentation and Physician Notification," with a review date of November 1, 2003. CMS Ex. 9, at 37-41. The policy provides, as noted above, that for an unconscious resident, or a resident unable to take food or fluids by mouth, and having a hypoglycemic episode, the facility is to call 911 and administer glucagon. CMS Ex. 9, at 38. RN Otts testified that this policy is standard throughout the chain of nursing homes she oversaw that are owned by the Beverly Corporation. ⁽⁵⁾ Tr. 132. LPN Patterson admitted during testimony that when treating Resident 1 on June 21, 2004, she was not aware of or did not recall this policy. She also admitted that she did not know at that time whether the facility had glucagon. Tr. 98-99; 103-04.

Dr. Ozborn and RN Otts both testified that placing sugar in the mouth of a person suffering hypoglycemia is an old nursing standard, and indicated that the current standard of care is to use glucagon. However, both testified that they are aware that some nurses continue to place sugar in the mouth of an individual experiencing an episode of hypoglycemia. Tr. 109-11, 116-17, 131-32. Dr. Ozborn testified that he was not concerned by the use of sugar with Resident 1, but that, after this emergency use, LPN Patterson should have followed up with glucagon (". . . the sugar, I think, was okay to use, for instance, while you were either getting [g]lucagon, trying to find it, have somebody else to get it. I mean, the sugar is one of those sort of immediate things that we've actually used for many years in order to preserve somebody's level while you could get something else done. Even the [g]lucagon takes a little bit to do, even if you have immediately at hand, the [g]lucagon has to get into the system and it takes a little bit." Tr. 116-17.). Tr. 109-11, 118-19. RN Otts agreed with Dr. Ozborn's testimony ("It's kind of like what Dr. Ozborn said, putting sugar in the mouth is an accepted emergency practice, and the nurses, especially the older nurse, that is their first train of thought to do: let's get the sugar in and then we'll follow up with the [g]lucagon. They will still put sugar in the mouth while they're getting [g]lucagon now, the older nurses do." Tr. 132.).

In this case, LPN Patterson attempted to administer water thickened with sugar and honey that Resident 1 could not swallow due to her minimally responsive state or her dysphagia. It is clear that LPN Patterson knew that Resident 1 was unable to take food or fluids by mouth, and it is also clear that, in such instances, facility policy requires the use of the emergency protocol, including calling "911" ⁽⁶⁾ and administration of glucagon. Administration of glucagon is the nursing standard, a fact confirmed by Petitioner's own witnesses, even as they attempted to assert that the use of granulated sugar might also comport with the standard of care, at least when followed up by the administration of glucagon. Whether or not the use of granulated sugar placed in the mouth is the old nursing standard, and a practice some nurses continue to follow, I find that the use of glucagon is the current standard of practice.

Accordingly, I conclude that CMS has made a prima facie showing of a violation of 42 C.F.R. � 483.25, because Resident 1 did not receive the "necessary care and services to attain or maintain her highest practicable physical, mental, and psychosocial well-being," which includes the requirement that treatment meet professional standards of care. See 42 C.F.R. � 483.25(k). It is particularly troubling that in this facility, where 36 percent of the residents are diabetic (Tr. 71), a nurse who was a long-time employee and charge nurse on the night shift (Tr. 84), was not aware of the facility policy or the requirement to administer glucagon and did not even know whether the facility had glucagon. Thus, even under the standard asserted by Dr. Ozborn and RN Otts (that use of the sugar was appropriate when followed by administration of glucagon), the facility's treatment of Resident 1 is out of substantial compliance with the participation requirement. It is also troubling that Petitioner has presented no evidence of any corrective action until the survey, which took place approximately eight months later.

I note Petitioner's argument (P. Brief at 22; P. Reply at 4-6) that its policy exceeded the standard of care in this instance and that CMS improperly focused on its policy. Petitioner's argument is not persuasive. Petitioner's reliance upon Spring Meadows Health Care Center, DAB No. 1966 (2005) is misplaced. In Spring Meadows, the Board found it reasonable to "presume" that a facility policy actually reflected the standard of care "absent convincing evidence to the contrary" (Spring Meadows, DAB No. 1966, at 18) and that it is reasonable to infer that the facility adopted the policy because it believed that the policy was necessary to attain and maintain resident well-being. In this case the policy required giving glucagon or calling "911" (which everyone knew meant to call the emergency medical service) if the resident was unconscious. As noted above, Petitioner's own witnesses indicated that glucagon is the standard of care and that sugar under the tongue is an old procedure which should be followed up by administration of glucagon. Petitioner has not shown by a preponderance of the evidence that there was a different standard of care applicable here.

I note also that Petitioner has argued that Resident 1 was not unconscious. However, Surveyor McElwain had reason to conclude that the resident was unconscious because, as noted in the change in condition report prepared by LPN Patterson on June 21, 2004, Resident 1 was noted to be "unresponsive to stimuli." CMS Ex. 9, at 16. And, whether the resident was actually unconscious is not relevant. Even Petitioner admits that Resident 1 had reduced responsiveness and thus some reduction of consciousness (P. Reply at 6), as well as trouble swallowing, and this condition created a particular potential for harm when LPN Patterson gave her thickened liquids or sugar rather than giving her glucagon.

The allegation that Petitioner's June 2004 MAR for Resident 1 reflects low blood sugar results for the resident twice on June 19, 2004, without documentation in the resident's records of contact with her physician, nursing intervention, or compliance with Petitioner's policy, is not denied by Petitioner. Rather Petitioner argues that Dr. Ozborn did not intend for the order to be taken literally. P. Brief at 10; P. Reply at 10. Counsel for Petitioner cites the testimony of Dr. Ozborn at Tr. 112 as support for his position. However, as I understand the testimony, Dr. Ozborn expected that his order to be called when blood sugars fell outside certain parameters be followed, but only after Petitioner's staff took emergency measures to correct the situation. Petitioner has not presented evidence that Dr. Ozborn was, in fact, called about the two instances of low blood sugar on June 19, 2004.

Finally, Petitioner attempts to minimize the allegation of the SOD that interviews of five nurses revealed that they were unaware of the existence of a written facility policy regarding hypoglycemia. Petitioner argues that the surveyor was dissatisfied with responses she received from Petitioner's staff and that the surveyor found no other instances of "inappropriate diabetes care" other than the examples related to Resident 1. P. Brief at 22; P. Reply at 10. Petitioner does not deny the allegations of the surveyor in the SOD about the responses of the nurses. However, Petitioner's policy reflected the standard of care and I do not find the nurses' lack of awareness of that policy insignificant, even though the reported response of two indicated that they were aware of glucagon.

Accordingly, I conclude that Petitioner violated 42 C.F.R. � 483.25 as alleged by CMS.

2. A CMP of $5050 per day for March 1 and 2, 2005, a total CMP of $10,100, is reasonable.

In determining the amount of the CMP, the following factors specified at 42 C.F.R. � 488.438(f) must be considered: (1) the facility's history of noncompliance, including repeated deficiencies; (2) the facility's financial condition; (3) the seriousness of the deficiencies as set forth at 42 C.F.R. � 488.404; and (4) the facility's degree of culpability.

The regulation authorizes the imposition of a per day CMP ranging from $3,050 to $10,000, for a regulatory violation that poses immediate jeopardy to a resident. Pursuant to the guidance in Emerald Oaks, DAB No. 1800 (2001), I must assess de novo the reasonableness of the CMP proposed by CMS based on the factors set forth at 42 C.F.R. � 488.438(f). The CMP of $5050 per day proposed by CMS is in the lower half of the range of the authorized remedy. CMS provided me with no evidence related to Petitioner's past history of noncompliance. I also have received no evidence regarding Petitioner's ability to pay.

I do find that the incident involving this resident was serious and that Petitioner was culpable in its failure to ensure that its staff (especially considering LPN Patterson was a charge nurse) was aware of its policy and the protocol it established, consistent with the current nursing standard, for the treatment of hypoglycemia. The evidence shows that Resident 1 was hypoglycemic and there is no dispute that hypoglycemia is a life-threatening situation. P. Brief at 2. Given the evidence, I cannot conclude that the CMS determination that the situation posed immediate jeopardy was clearly erroneous. Furthermore, Petitioner has not proved by a preponderance of the evidence that it achieved substantial compliance before March 2, 2005.

3. Petitioner was properly subject to the prohibition on conducting a NATCEP for two years.

In addition to the CMP, I conclude that the state agency was required to prohibit Petitioner from conducting a NATCEP for two years.

Pursuant to 42 C.F.R. �� 483.151(b)(2) and (e)(1), a state may not approve and must withdraw any prior approval of a NATCEP offered by a SNF or NF that: (1) has been subject to an extended or partial extended survey under sections 1819(g)(2)(B)(i) or 1919(g)(2)(B)(i) of the Act; (2) has been assessed a CMP of not less than $5000; or (3) has been subject to termination of its participation agreement, denial of payment, or the appointment of temporary management. Extended and partial extended surveys are triggered by a finding of "substandard quality of care" during a standard or abbreviated standard survey and involve evaluating additional participation requirements. 42 C.F.R. � 488.301. "Substandard quality of care" is identified by the situation where surveyors identify one or more deficiencies related to participation requirements established by 42 C.F.R. � 483.13 (Resident Behavior and Facility Practices), 42 C.F.R. � 483.15 (Quality of Life), or 42 C.F.R. � 483.25 (Quality of Care), that are found to constitute either immediate jeopardy, a pattern of or widespread actual harm that does not amount to immediate jeopardy, or a widespread potential for more than minimal harm that does not amount to immediate jeopardy and there is no actual harm. Id. As already noted, a facility is not normally entitled to ALJ review of a CMS or state agency level of noncompliance determination (also known as the "scope and severity" determination). The only two exceptions are where the amount of the CMP might be affected and where there was a finding of substandard quality of care that led to loss of approval of a facility's NATCEP. 42 C.F.R. � 498.3(b)(14).

In this case the evidence shows that the state agency conducted an extended or a partial extended survey and I have found that a CMP of more than $5000 is reasonable. Accordingly, the two-year prohibition on conducting a NATCEP is triggered here.

III. Conclusion

For the foregoing reasons, I conclude that Petitioner violated 42 C.F.R. � 483.25 and that there is a basis for the imposition of an enforcement remedy at an immediate jeopardy level. A CMP of $5050 per day for March 1 and 2, 2005, a total CMP of $10,100, is reasonable. Petitioner is also properly subject to the two-year prohibition on conducting a NATCEP.

Keith W. Sickendick

Administrative Law Judge

1. All references are to the revision of the Code of Federal Regulations (C.F.R.) in effect at the time of the surveys, unless otherwise indicated.

2. This is a "Tag" designation that refers to the part of the State Operations Manual (SOM), Appendix P, "Survey Protocol for Long Term Care Facilities," "Guidance to Surveyors," that pertains to the specific regulatory provision allegedly violated.

3. This is the statement of deficiencies (SOD) as modified by the IDR.

4. The surveyors cite the violation of 42 C.F.R. � 483.25 (Tag F309) at a scope and severity of "K." CMS Ex. 19, at 12; Joint Stipulation. According to the scope and severity matrix published in the SOM, section 7400E, a scope and severity level of K reflects a pattern of deficiencies that present immediate jeopardy to resident health and safety. The matrix, which is based on 42 C.F.R. � 488.408, specifies which remedies are required and optional at each level based upon the frequency of the deficiency. See SOM, section 7400E.

5. Administration of glucagon and calling emergency services is also consistent with guidelines prepared by the American Diabetes Association for situations where an individual has passed out. CMS Ex. 23, at 2.

6. Eupora, Mississippi, does not have "911" service, rather the emergency medical service at the hospital is called for emergency medical situations. Tr. 100-01. I see no difference in calling "911" to obtain emergency medical services and calling emergency medical services on another number - in both instances the intent is to have emergency medical services respond to the facility. LPN Patterson testified that she saw no difference between calling "911" and calling the hospital as it meant "the same difference to [her]." Tr. 101. Petitioner acknowledges that the fact that the policy referred to "911" rather than emergency medical services is really insignificant. P. Brief at 21.