College Park Rehabilitation and Care Center, DAB CR5757 (2020)

DECISION

Respondent, the Centers for Medicare & Medicaid Services (CMS), determined that Petitioner, College Park Rehabilitation and Care Center (College Park), was not in substantial compliance with Medicare participation regulations and imposed per-day civil money penalties (CMPs) for the facility’s substantial noncompliance.

As explained below, I sustain the imposition of a $14,891 per-day CMP from December 9 through 23, 2016.  I also sustain the imposition of a $1,253 per-day CMP from December 24, 2016 through January 5, 2017.  The total CMP is modified to $240,907.

I.     Background

College Park is a skilled nursing facility (SNF) located in Weatherford, Texas participating in the Medicare and Medicaid programs.  Following two surveys completed on December 23, 2016 and January 18, 2017, CMS determined that College Park was not

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in substantial compliance with the following program requirements:

• 42 C.F.R. §§ 483.10(c)(6), (c)(8), (g)(12), 483.24(a)(3) (Tag F155 – right to refuse; formulate advance directives)
• 42 C.F.R. § 483.12 (Tag F223 – free from abuse/involuntary seclusion)
• 42 C.F.R. §§ 483.12(b)(1)-(3), 483.95(c)(1)-(3) (Tag F226 – develop/implement abuse/neglect, etc. policies)
• 42 C.F.R. § 483.21(b)(3)(i) (Tag F281 – services provided meet professional standards)
• 42 C.F.R. §§ 483.24, 483.25(k)(1) (Tag F309 – provide care/services for highest well-being)
• 42 C.F.R. § 483.70(f)(1)-(2) (Tag F499 – employ qualified full-time/ part‑time/consult professionals)

CMS Exhibit (Ex.) 1 at 1.  All deficiencies were cited at a scope and severity level “L”, meaning widespread substantial noncompliance that poses immediate jeopardy to resident health and safety, except for Tag F499, which was cited at a level “F”, meaning widespread noncompliance with no actual harm but with potential for more than minimal harm that is not immediate jeopardy.  Id.  CMS imposed a $14,891 per-day CMP for immediate-jeopardy level deficiencies from December 9 through 23, 2016, and a $1,253 per-day CMP for a non-immediate-jeopardy level deficiency from December 24, 2016, through January 18, 2017, for a total CMP of $255,943. 

College Park timely filed a request for hearing on March 13, 2017.1   Administrative Law Judge Scott Anderson was initially designated to hear and decide this case.  Judge Anderson issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order) on March 24, 2017, that set deadlines for the parties to file pre-hearing exchanges, including briefs, exhibits, witness lists, and the direct testimony of any witnesses identified.  Pre-hearing Order at 3.  CMS and College Park each filed timely pre-hearing exchanges, including pre-hearing briefs (CMS Br. and P. Br.). 

On August 25, 2017, the matter was transferred to me to hear and decide, and on January 17, 2018, I held a pre-hearing telephone conference with the parties.  Jan. 23, 2018 Order Summarizing Pre-Hearing Conference.  CMS had identified three witnesses in its exchange:  (1) Sherrie Jones, R.N.; (2) Earl Key, R.N.; and (3) Daniel McElroy, R.N., but withdrew the latter two at the conference.  Id.  Petitioner requested cross‑examination of CMS’s sole remaining witness, Nurse Jones.  Id.  Petitioner identified four witnesses:  (1) Joanna Ritchley, R.N.; (2) Brenda Balderson, R.N.; (3) Amanda Ward, L.V.N.; and (4) Dr. Pearl Merritt, and, at the conference, CMS confirmed its intent to waive its right to cross-examine Petitioner’s witnesses.  Id.

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II.     Hearing and Admission of Exhibits.

On September 14, 2018, I held a videoconference hearing to allow Petitioner to cross‑examine Nurse Jones.  At the outset of the hearing, I entered CMS Exhibits 1 through 14 into evidence and excluded CMS Ex. 10, which contained the testimony for one of the witnesses who was withdrawn by CMS.2   Petitioner objected to CMS Exhibits 1, 2, 6, and 9 in its pre-hearing exchange.  I overruled those objections as they go to the weight of the evidence, not their admissibility.  Hearing Transcript (Tr.) at 7.  Meanwhile, Petitioner identified Exhibits 1 through 21 in its exhibit list but did not offer Exs. 1-2, 5, 9, 11-12, and 14, which were duplicates of CMS exhibits.  Absent objection from CMS, I entered into evidence P. Exs. 3-4, 6-8, 10, 13, and 15-21.  Tr. at 139-40. 

Without seeking leave to do so, CMS uploaded Exs. 15 and 16 into the DAB E-file system during the hearing.  These documents are orders issued by the Texas Board of Nursing (BON) to resolve disciplinary proceedings against two of the facility’s nurses with respect to their actions in the same incident that gave rise to the deficiencies under review in this case.  Tr. at 123-24.  Once my staff attorney brought this filing to my attention, CMS explained that it wished to offer the orders to rebut the position that the nurses’ actions were acceptable under Texas BON guidelines.  Tr. at 131.  I deferred ruling at that time and allowed the parties to address the admissibility of these proposed exhibits in post-hearing briefing.  Tr. at 132, 139.  Following the hearing, the parties filed post-hearing briefs (CMS Closing Br. and P. Closing Br.).  Petitioner separately filed objections to the exhibits CMS submitted during the hearing (P. Objections).

Petitioner objected to these exhibits on several grounds, arguing they were untimely submitted, that as settlement agreements they are inadmissible under the Federal Rules of Evidence to prove the validity of a disputed claim, and that they are otherwise of limited relevance because they pertain to the question of the nurses’ individual professional shortcomings under the standards of the Texas BON, not the facility’s liability under federal regulations governing SNFs.  P. Objections.  Petitioner also contends these exhibits are not “rebuttal” evidence and therefore should have been submitted by CMS with its case-in-chief.  Id.

I sustain Petitioner’s objections.  It might be appropriate to submit proposed exhibits during a hearing in the context of rebuttal (assuming a party first sought leave to do so, which did not occur here), but CMS clearly believed Texas’s nursing standards were relevant to this case well before the hearing, because it had already submitted evidence to that effect in the declaration of its sole witness.  CMS Ex. 9 at 9.  Providing supplemental evidence related to the application of those standards to facility staff does not “rebut” any new issue raised by Petitioner, so much as represent an effort by CMS to

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buttress its case-in-chief.3   CMS should have submitted Exs. 15-16 along with its pre‑hearing exchange, or sought leave to do so earlier than in the midst of trial.  Because CMS has failed to show good cause for its untimely filing, I exclude CMS Exs. 15-16 from the record.

II.     Statement of issues

The issues presented are:

Whether College Park was in substantial compliance with Medicare program requirements; and

If College Park was not in substantial compliance, whether its deficiencies posed immediate jeopardy to resident health and safety; and

If College Park was not in substantial compliance, whether it returned to substantial compliance before December 26, 2016, or January 18, 2017, for the immediate- and non-immediate-jeopardy deficiencies; and

If College Park was not in substantial compliance, whether the $14,891 and $1,253 per-day CMPs imposed by CMS are reasonable.

III.     Jurisdiction

I have jurisdiction to hear and decide this case.  42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

IV.     Burden of Proof

CMS must first make a prima facie showing that College Park failed to comply substantially with federal participation requirements.  If this occurs, College Park must prove substantial compliance by a preponderance of the evidence in order to rebut CMS’s showing and prevail.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998).

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V.     Discussion

A.  Based on the December 2016 survey, CMS has established by a preponderance of the evidence that Petitioner failed to substantially comply with multiple participation requirements.

CMS argues that College Park was out of substantial compliance with several participation requirements based on the facility’s response to an emergency situation concerning one resident, Resident 1.  Resident 1 was 79 years old at admission on November 30, 2016 and had an “extensive history [with] multiple medical problems” including pneumonia, non-Alzheimer’s dementia, chronic obstructive pulmonary disease, and terminal large B-cell lymphoma.  CMS Ex. 5 at 1, 101-02.  Significantly, Resident 1 was designated as being in “full code” status because neither he nor his family had executed an advance directive.  CMS Ex. 7 at 1. 

On December 9, 2016, at around 2:15 p.m., a nurse observed Resident 1 resting quietly in bed and watching television, with his wife at his bedside.  CMS Ex. 4 at 8-9.  About two hours later, however, the resident’s grandson asked Nurse James Olson to check on Resident 1.  CMS Ex. 5 at 9.  At that time, Nurse Olson, who was in another resident’s room, finished providing care to the other resident.  Id.  He then went to Resident 1’s room and discovered the resident was not breathing and did not have a pulse.  Id.  Nurse Olson also observed at that time that Resident 1’s grandson was wearing a paramedic jacket.  Id.

Nurse Olson did not initiate CPR at that point.  CMS Ex. 5 at 9.  Instead, upon assessing Resident 1, Nurse Olson immediately told the grandson he would get help from Resident 1’s regular nurse and a registered nurse, who could pronounce death if needed:

Mr. Olson went into the hall, got Brenda Balderson, RN, Debbie Ray, LVN, Judy Bolan (ADON), and Amanda Ward (ADON).  The code status was immediately verified from the 24 hour report; nurses immediately came into the room with the crash cart, while other nurses called 911; and CPR was immediately started. 

P. Br. at 7, citing CMS Ex. 5 at 6-12; P. Ex. 16 at 4-5; and P. Exs. 17, 20, 21.  

After being alerted by Nurse Olson, Nurse Balderson also assessed Resident 1, but like Nurse Olson, did not initiate CPR.  CMS Ex. 5 at 9, 10; P. Ex. 21.  Both nurses instead proceeded to verify Resident 1’s code status, available in electronic records and in a 24‑hour report at the nurse’s station.  CMS Ex. 2 at 11.  After verifying the resident was “full code,” meaning Resident 1 wished the facility to take all measures to revive him, two other nurses initiated CPR on the resident.  CMS Ex. 5 at 6, 9, 11.  Staff continued to

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perform CPR until paramedics arrived.  Id. at 6, 10-11.  Resident 1 was transferred to the hospital, where he was pronounced dead.  CMS Ex. 4 at 8.

1.  Petitioner failed to substantially comply with 42 C.F.R.§ 483.24(a)(3), Tag F155.

SNFs like Petitioner are obliged to provide “the necessary care and services to ensure that a resident’s abilities in activities of daily living do not diminish” by “ensuring that:  . . . [p]ersonnel provide basic life support, including CPR, to a resident requiring such emergency care . . . subject to related physician orders and the resident’s advance directives.”  42 C.F.R. § 483.24(a)(3).  

In its published guidance to SNFs addressing initiation of CPR, CMS explicitly cites guidance promulgated by the American Heart Association that provides criteria to determine when to initiate CPR.4   State Operations Manual (SOM) – Guidance to Surveyors for Long Term Care Facilities, CMS Pub. 100-07, App. PP at 7 (rev. 133, eff. Feb. 6, 2015), available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R133SOMA.PDF. 

The SOM explains that under these standards, “[p]rompt initiation of CPR is essential as brain death begins four to six minutes following cardiac arrest if CPR is not initiated within that time.”  Id.  The SOM further notes that the AHA “urges” initiation of CPR unless:

1) a valid DNR order is in place;
2) obvious signs of clinical death (e.g., rigor mortis, dependent
lividity, decapitation, transection, or decomposition) are present; or
3) initiating CPR could cause injury or peril to the rescuer.

Id. 

College Park’s own CPR policy largely mirrors this guidance, providing “[t]he chances of surviving [a heart attack] may be increased if CPR is initiated immediately upon collapse” and that if an individual is found to be unresponsive and not breathing normally, licensed staff members “shall initiate CPR” unless a Do Not Resuscitate (DNR) order is known to apply or if there are “obvious signs of irreversible death (e.g., rigor mortis).”  P. Ex. 6 at 1.

Accordingly, there is no dispute that the AHA’s guidelines are appropriate to consider in

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order to determine whether the facility met its obligations under the regulations to provide the necessary care and service of CPR, or that those guidelines require a prompt initiation of CPR absent certain signs of clinical death or where initiation of CPR could cause injury or peril to the rescuer (neither of which the facility claims to be applicable here).

Here, CMS argues that College Park did not substantially comply with this regulatory requirement because its staff failed to immediately initiate CPR when they found Resident 1 unresponsive in his room.  College Park contends its staff members initiated CPR in this case at the soonest possible moment, and therefore acted consistently with the AHA’s guidelines. 

Having reviewed the arguments and evidence, I find that College Park did not “promptly” initiate CPR for Resident 1.  First, facility staff permitted an unnecessary delay by failing to immediately respond when alerted of Resident 1’s potentially emergent condition.  The parties dispute the exact amount of time that elapsed before the facility initiated CPR based on their differing views of when the facility should have recognized Resident 1’s emergent condition.  CMS relies on the estimate of Resident 1’s grandson that facility staff initiated CPR about 7-8 minutes after he first requested Nurse Olson’s assistance.  CMS Ex. 8 at 12.  College Park contends the grandson’s estimate included the time Nurse Olson required to finish helping another resident, and that it only took one to three minutes from the point Nurse Olson first entered Resident 1’s room for facility staff to initiate CPR.  P. Br. at 7; CMS Ex. 5 at 9; P. Ex. 21; P. Ex. 20.  College Park emphasizes Resident 1’s grandson, who happened to be a paramedic, failed to inform Nurse Olson of the emergent nature of Resident 1’s situation, so Nurse Olson did not actually become aware of the nature of Resident 1’s condition until the nurse first entered his room.  P. Br. at 9 n.3.

I do not credit College Park’s justification for the period of delay resulting from Nurse Olson’s failure to react when notified of Resident 1’s emergent status.  First, it is somewhat absurd to defend a facility’s lack of action based on the apparent affect of a resident’s family member, or that family member’s profession.  P. Br. at 6.  A SNF is obligated to provide the highest possible quality of care and apply sound medical judgment, which does not include relying on the credentials of a family member made apparent by his choice of outerwear.5   Second, despite the grandson’s “demeanor and calm nature,” CMS Ex. 5 at 9, Nurse Olson could have asked him follow-up questions to better ascertain the nature of Resident 1’s condition.  He could have also simply used the call button in the room where he was providing care and asked another facility staff member to quickly assess Resident 1.

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Instead, Nurse Olson finished administering pills to another resident, a decidedly non‑urgent task, which by his own estimate added another three minutes of delay.  Id.  The AHA’s guidelines embodied in the SOM and the facility’s CPR policy do not set a specific timeframe in which CPR must be initiated, but they counsel that CPR be administered “promptly” to avoid or minimize brain damage, which can occur in four to six minutes.  SOM, App. PP at 7; P. Ex. 6 at 1.  Facility staff should have recognized a delay of even three minutes could have substantially affected Resident 1’s possibility for survival, and acted accordingly.

Even assuming arguendo that Nurse Olson’s delay in assessing Resident 1 was appropriate, College Park staff members still failed to “promptly” initiate potentially life‑saving CPR upon becoming aware of Resident 1’s emergent condition.  There is no dispute that the first two nurses to assess Resident 1 delayed care to determine his code status.  Nurse Olson stated that he left Resident 1’s room to get help and that “[a]fter notifying [Nurse Balderson] I went to the nurse’s station to verify patient’s code status and notify his nurse.”  CMS Ex. 5 at 9.  Nurse Balderson confirmed Nurse Olson asked her to check on Resident 1 and that after her own assessment, she “left the room to check code status and have someone alert [the resident’s] nurse.”  CMS Ex. 5 at 10; CMS Ex. 2 at 9.  Both nurses, one after the other, assessed Resident 1, recognized an emergent situation, and then left the room to check the resident’s code status.

I recognize College Park’s obligation under the regulations and professional medical standards to ensure that it did not provide resuscitative measures to Resident 1 if he had declined them by means of an advance directive.  See 42 C.F.R. § 483.10(c)(6).  And I do not countenance an interpretation of the regulations that would impose a strict liability regime on facilities to be applied at CMS’s whim.  However, a SNF like College Park could reasonably anticipate that any of its infirm and elderly residents could require urgent rescue care; in fact, given the nature of the facility’s resident population, it was inevitable.  The need to avoid unnecessary delay in determining a resident’s code status was eminently foreseeable.  The facility should therefore have considered emplacing safeguards that allowed its staff to quickly identify each resident’s code status with little to no delay in order to immediately provide such critical care.

College Park clearly made no effort to do so.  After becoming aware of Resident 1’s non‑responsive state, the facility’s staff had to first verify his code status by accessing his patient care record on a computer or by going to the nurse’s station to review a written log, both of which required the so-called rescuers to leave Resident 1’s room.  CMS Ex. 2 at 11.6   As the AHA’s guidelines memorialized in the SOM and in the facility’s own CPR

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policy make clear, the first few minutes that CPR is performed are potentially the most precious.  The facility could and should have had in place a procedure that would allow staff to verify code status quickly.7   The facility did not “promptly” initiate CPR, as required by the regulations and applicable guidelines. 

College Park alternatively contends it was not required to initiate CPR in the first place because Resident 1 was dead.  P. Br. at 6.  The facility explains a nurse has the discretion to withhold CPR if a resident has overt signs of death, such as fixed and dilated pupils, no pulse, no respirations, cyanosis, and dependent lividity/livor mortis (the pooling of blood in the lower extremities following death).  Id. at 6.  In support of this proposition, College Park cites Resident 1’s grandson’s lack of emotional response when he spoke to Nurse Olson, as well as his failure to press Resident 1’s call light.  Id. at 5-6.  College Park asserts that Resident 1’s grandson’s failure to initiate CPR tends to lend credence to the facility’s theory that it was unnecessary to initiate CPR at all.  Id.

This argument might suit an entirely different case, but the actual facts are incongruent.  Putting aside the patent absurdity of placing the primary responsibility of assessing a resident to determine an urgent course of medical action on a family member, rather than a member of staff, the evidence of record makes plain that College Park did not consider Resident 1 to be beyond lifesaving measures.  Its staff instead sought to initiate CPR as soon as the resident’s code status could be verified, and then brought all its resources to bear to do so.  CMS Ex. 4 at 8; CMS Ex. 5 at 9; P. Ex. 16 at 4; P. Ex. 20.  And the facility continued to provide CPR until paramedics arrived, who also continued CPR while transporting Resident 1 to the hospital.  CMS Ex. 5; P. Ex. 21.  If signs of death were as obvious as Petitioner now claims, it is odd that facility staff who could declare death did not do so before Resident 1 was taken to a hospital. 

Only Nurse Balderson claims to have explicitly considered the possibility of declaring Resident 1 dead.  P. Ex. 21.  Her declaration made after the fact, and in support of her employer’s litigation position, is not corroborated by contemporaneous evidence, which fails to demonstrate any member of the staff gave serious consideration to declaring Resident 1 dead rather than initiating CPR.  But even allowing that her declaration is truthful, Nurse Balderson’s decision not to declare Resident 1 dead committed the facility to a course of action.  College Park may not now argue that its staff had no obligation to comply with guidelines and professional standards governing the administration of CPR once its staff exercised clinical judgment and determined it was appropriate to initiate

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CPR.

In any event, there is insufficient evidence to suggest the facility could have simply declared Resident 1 dead and declined to provide CPR.  The AHA guidelines identified in the SOM urge facilities to initiate CPR unless “obvious signs of clinical death (e.g., rigor mortis, dependent lividity, decapitation, transection, or decomposition) are present.”  SOM, App. PP at 7.  College Park’s own policy requires initiation of CPR unless there are “obvious signs of irreversible death (e.g., rigor mortis).”  P. Ex. 6 at 1. 

These guidelines for declining to initiate CPR because of irreversible death were not met.  The AHA guidelines endorsed by CMS in the SOM and reflected in the facility’s CPR policy cite extreme examples of obvious signs of irreversible death, which Petitioner does not argue was present here.  SOM, App. PP at 7; P. Ex. 6 at 1.  These guidelines suggest that facilities should err on the side of caution and initiate CPR in all but the most obvious circumstances. 

Petitioner also cites the Texas BON’s guidelines, which permit withholding of CPR only in the event of an unwitnessed cardiac arrest where the resident exhibits all of the following signs:

(1)      Unresponsive;
(2)      Has no respirations;
(3)      Has no pulse;
(4)      Has fixed and dilated pupils;
(5)      Has body temperature indicates hypothermia;
(6)      Has generalized cyanosis; and
(7)      There is presence of livor mortis or venous pooling of blood in dependent body parts causing purple discoloration of the skin. 

P. Br., App. Tab 1 at 4-5.

But applying the Texas BON’s standards does not better situate Petitioner; the contemporaneous record only documents the resident was unresponsive and had no respirations or pulse.  CMS Ex. 4 at 8.  These clinical signs are not enough to declare death (and indeed, are the reasons to initiate CPR in the first place). 

Nurse Balderson did declare after the fact that she recognized livor mortis and found Resident 1’s pupils to be fixed, but her testimony does not indicate she assessed his body temperature.  P. Ex. 21.  In her interview with the surveyor less than a month after the incident, she claimed to have observed a lack of response, respiration, or breathing, fixed pupils, yellowish skin, cyanosis in the lips, and pooling of blood in the resident’s posterior thighs.  CMS Ex. 5 at 10.  But even there, Nurse Balderson did not allege generalized cyanosis or hypothermic body temperature.

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Nurse Ward similarly declared in these proceedings that Resident 1 did not exhibit a pulse or respiration, and claimed she observed livor mortis upon entering his room to administer CPR.  P. Ex. 20.  But none of these findings were contemporaneously documented.  CMS Ex. 4 at 8.  When interviewed by a surveyor less than a month after the incident, Nurse Ward stated only that she assessed the resident and determined a pulse and respirations were not present and then initiated CPR.  CMS Ex. 5 at 6.  Thus, Petitioner has not established that the clinical evidence of record at the time met the Texas BON’s standards to support a decision to withhold CPR from Resident 1 – which is likely why the facility did not do so in the first place.

College Park’s remaining arguments with respect to this deficiency are irrelevant.  Its claim that CMS or the state agency found it in violation of F155 for failing to follow its advance directive policy appears to be based on a mistaken notion concerning the scope of the deficiency finding related to that tag in this case.  P Br. at 4; P. Closing Br. at 3-4.  Tag F155 encompasses both the failure to initiate CPR and the failure to formulate advance directives.  It is true that the state agency cited Tag F155 in its deficiency finding, and referenced the underlying regulations for both deficiencies.  CMS Ex. 2 at 2‑3.  But it is clear from the substance of the statement of deficiencies and CMS’s arguments in its briefing before me that the only deficiency at issue identified under Tag F155 is whether College Park properly initiated CPR.

College Park also relies on a statement from Resident 1’s physician, Dr. Kris Wusterheusen, who opined the resident died from natural causes and not an act or failure to act by College Park’s staff.  P. Closing Br. at 7.  Dr. Wusterheusen’s opinion may be true as far as it goes, but it is irrelevant to the outcome here.  I need not find the facility caused Resident 1’s death (or in fact, actual harm at all) in order to determine the facility was not in substantial compliance with its regulatory obligations; instead, I need only find that its noncompliance posed a risk for more than minimal harm.  42 C.F.R. § 488.301.  The facility’s failure to promptly provide CPR to Resident 1 assuredly placed him at risk for more than minimal harm, regardless of the clinical outcome.

Finally, CMS argues College Park was out of substantial compliance because it failed to use an automated external defibrillator (AED) during administration of CPR for Resident 1.  CMS argues that AHA guidelines require use of an AED as soon as it is available during CPR administration.  CMS Br. at 5.  College Park has submitted medical literature in response that it claims shows the use of an AED does not increase or otherwise change a patient’s overall chance of survival, if, as here, a resident lacks a heartbeat.  P. Br. at 8; P. Ex. 7 at 2.  

College Park’s claim is unconvincing.  As I have already discussed, CMS endorsed the AHA’s guidelines as the appropriate professional standard by which facilities should fashion policies concerning the administration of CPR.  SOM, App. PP at 7.  Critically, College Park adopted the AHA’s standards in its own policy, which states “[e]arly

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delivery of a shock with a defibrillator plus CPR within 3-5 minutes of collapse can further increase chances of survival.”  P. Ex. 6 at 1.

Petitioner has not bothered to explain why it was appropriate to ignore its own policy, or why I should ignore it now.  Nor has it documented any effort to change or update its policy according to the evidence it believes supersedes guidance from the AHA.  I decline to disregard a facility’s own memorialized judgment as to how to comply with a regulatory requirement, particularly where that policy is based on a widely acknowledged standard of care that is not reasonably in dispute, like the AHA’s guidelines for initiation of CPR.  See Good Shepherd Home for the Aged, DAB No. 2858 at 12 (2018) (“A resident care policy intended to ensure compliance with Medicare participation requirements ‘may reflect [the] facility’s own judgment about how best to achieve compliance [with those requirements] and hence failure to comply with its own policies can support a finding that the facility did not achieve compliance with the regulatory standard.’”). 

2.  Petitioner failed to substantially comply with 42 C.F.R. § 483.12, (b)(1), Tags F223 and F226.

CMS argues that the facility’s failure to promptly initiate CPR also amounts to neglect of Resident 1 as well as a failure to develop procedures that prohibit and prevent neglect.  CMS Br. at 5-6.  The facility was therefore also out of substantial compliance with 42 C.F.R. § 483.12 and subsection (b)(1), cited under Tags F223 and F226.  Id. at 5-6.  College Park raises similar arguments with respect to both citations, so I address these two deficiencies together here.  P. Closing Br. at 10-12.

42 C.F.R. § 483.12 provides a SNF resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation, while 42 C.F.R. § 483.12(b)(1) requires a facility to develop and implement written policies and procedures that, among other things, prohibit and prevent neglect.  The regulations define “Neglect” as “the failure of the facility, its employees, or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.”  42 C.F.R. § 488.301. 

I agree with CMS that the facility’s failure to promptly provide CPR to Resident 1 amounts to neglect that violates 42 C.F.R. § 483.12.  Here, the “service” Resident 1 needed to avoid physical harm was timely CPR, which the facility did not promptly provide.

I also find that the facility failed to develop written policies and procedures to prevent this type of neglect in the first place.  The facility was unable to promptly initiate CPR because its staff first needed to verify Resident 1’s code status.  But College Park had no established procedure for verifying any resident’s code status.  Even if the facility’s staff generally knew to verify a resident’s code status by checking the 24-hour report with the

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charge nurse or at a nearby computer in the electronic records, the facility could have developed and implemented other procedures to more quickly verify a resident’s code status, including the sticker system the facility ultimately implemented as part of its plan of correction.

College Park argues that the survey report never specifically states how the facility violated or failed to implement its neglect policy or even what exact portion of the neglect policy was not followed.  P. Br. at 12.  But as the Board has noted, a facility may be noncompliant when it “fail[s] to develop policies or procedures adequate to prevent neglect.”  Glenoaks Nursing Ctr., DAB. No. 2522 at 14 (2013).  College Park further claims there is no specific regulation regarding development and/or implementation of policies pertaining to initiating or withholding CPR that it could turn to in order to fashion a policy that was adequate to prevent neglect.  P. Br. at 12. 

In the first place, the regulations permit facilities the flexibility to develop and implement written policies for preventing neglect.  42 C.F.R. § 483.12(b)(1).  And, it is somewhat disingenuous to say that there was no guidance a facility could rely on short of actual regulatory language.  As I have discussed, the AHA’s standards for initiation and withholding of CPR are uniformly acknowledged and widely adopted.  CMS cites them in its SOM, which provides guidance to SNFs.  College Park incorporated these standards in its policy.  The Texas BON’s professional standards provide a similar standard as well.  The facility failed to meet any of those standards.  The facility cannot, in good faith, plead ignorance on this issue. 

Because College Park did not have a written policy or procedure in place for its staff to quickly verify a resident’s code status, the facility placed its residents at risk of not promptly receiving CPR in emergency situations.  I find this systemic failure to provide a service to residents that is necessary to avoid physical harm amounted to a failure to develop written policies and procedures to prevent neglect within the meaning of 42 C.F.R. § 483.12(b)(1).

3.  Petitioner failed to substantially comply with 42 C.F.R. § 483.24, Tags F281 and F309.

Relying on the facility’s failure to promptly initiate CPR that underpins the other deficiencies already discussed, CMS cited College Park under Tag F281, for failure to provide services that met professional standards, and Tag F309, for failure to provide care and services for highest well-being.  CMS Ex. 1 at 1.  College Park makes similar arguments concerning both deficiencies so I address them together.  P. Closing Br. at 12-15.  The facility argues that SOM guidelines “clarify that the purpose and intent of Tag F281 is to ensure that the facility delivers services of ‘professional quality’ for all services required by the ‘comprehensive care plan.’”  P. Br. at 13.  College Park also claims the SOM guidelines “confirm the purpose of the F309 Tag is to ensure that a

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facility is providing services under the resident’s comprehensive assessment and care plan.”  Id. at 14.  College Park asserts the terms “comprehensive assessment” and “care plan” bear specific regulatory meaning, and that under the regulations, those documents are not required to be completed until up to 21 days after admission.  Id. at 13-14.  College Park therefore argues that because Resident 1 had been a resident for only 10 days, the facility could not have failed to perform services under a comprehensive care plan that did not yet exist.  Id.

College Park’s arguments as to these deficiencies are without merit.  Compliance with the relevant regulations does not first require the completion of a comprehensive assessment or initiation of a care plan.  It is true that 42 C.F.R. § 483.21(b)(3)(i) requires services provided or arranged by the facility, as outlined by the comprehensive care plan, must meet professional standards of quality.  But as CMS observes, it would be absurd to read this regulation to permit a SNF to essentially meet no regulatory standards at all for up to 21 days, while the facility completes a comprehensive assessment and establishes a care plan for a resident.  CMS Closing Br. at 6.  Whatever care a SNF provides to a resident upon admission and prior to the establishment of a care plan, that care plainly must meet professional standards.8

CMS’s guidance on this subject clarifies that:  “The intent of [section 483.21(b)(3)(i)] is to assure that services being provided meet professional standards of quality (in accordance with the definition provided below) and are provided by appropriate qualified persons (e.g., licensed, certified).”  SOM, CMS Pub. 100-07, App. PP at 33 (rev. 127, eff. Nov. 26, 2014) (2014 SOM), available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R127SOMA.PDF.  And guidance for F281 instructs surveyors to consider whether there is “evidence of assessment and care planning sufficient to meet the needs of newly admitted residents, prior to completion of the first comprehensive assessment and comprehensive care plan.”  Id. at 34 (emphasis added).  CMS’s guidance clearly contemplates applying the citation in situations that precede the completion of a comprehensive care plan.

As for Tag F390, the relevant regulation provides that:

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, consistent with the resident’s comprehensive assessment and plan of care.

42 C.F.R. § 483.24.

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The Board has held that 42 C.F.R. § 483.24 “implicitly imposes on facilities a duty to provide care and services that, at a minimum, meet accepted professional standards of quality ‘since the regulations elsewhere require that the services provided or arranged by the facility must meet such standards.’”  Sheridan Health Care Ctr., DAB No. 2178 at 15 (2008), citing Spring Meadows Health Care Ctr., DAB No. 1966 at 17 (2005).  In Spring Meadows, the Board explained:

While the clearest case of failure to meet the general requirement is failure to provide one of the specific services outlined in the subsections or failure otherwise to follow the plan of care based on the comprehensive resident assessment, the regulation, in context, is clear enough to support applying it in other circumstances” including “where the care provided did not meet ‘professional standards of quality,’ since the regulations elsewhere require that the services provided or arranged by the facility must meet such standards.

DAB No. 1966 at 17; 42 C.F.R. §§ 483.25, 483.75.

Consistent with that reasoning, the Board found the facility in John J. Kane Regional Center - Glen Hazel out of substantial compliance when it failed to provide CPR in accordance with professional standards where the facility failed to call 911 and provide CPR until emergency services arrived.  DAB No. 2068 (2007).  In Royal Manor, the Board found the facility out of substantial compliance when it delayed resuscitation efforts for several minutes while trying to find the resident’s resuscitation order.  DAB No. 1990 (2005).  

Contrary to Petitioner’s arguments, it is clear a facility may be out of substantial compliance with 42 C.F.R. §§ 483.21(b)(3)(i), 483.25 where it fails to provide care consistent with accepted professional standards, regardless of the absence or presence of a comprehensive assessment or care plan.  See Longwood Healthcare Ctr., DAB No. 2394 (2011) (holding a facility failed to provide care for a need identified in the resident’s hospital discharge summary); Georgian Court Nursing Ctr., DAB No. 1866 (2003) (holding the facility’s failure to follow a physician order did not meet accepted professional standards).  By failing to promptly provide CPR, College Park did not substantially comply with the regulations at 42 C.F.R. §§ 483.21(b)(3)(i), 483.25.

4.  Petitioner failed to substantially comply with 42 C.F.R. § 483.70(f), Tag F499.

CMS also cited College Park for substantial noncompliance with 42 C.F.R. § 483.70(f)(2), which requires SNF professional staff to be licensed, certified, or registered in accordance with applicable State laws.  During the January 18, 2017 survey

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at issue here, state surveyors found that Nurse Olson’s temporary license to practice nursing in Texas expired on November 23, 2016, but that he continued to work as a nurse at College Park until January 5, 2017.  CMS Ex. 11.

College Park does not dispute that Nurse Olson continued to work at College Park after his temporary license in Texas expired.  Instead, the facility asserts the state surveyors were “not legally authorized” to cite this deficiency.  P. Br. at 17-18.  College Park explains that prior to the January 2017 survey, its Quality Assurance (QA) Committee had already identified the issue through routine licensure audits and had taken prompt remedial action by immediately suspending Nurse Olson on January 5, 2017.  Id.  College Park further contends that under applicable state licensing regulations, federal regulations, and agency guidance, surveyors are prohibited from reviewing QA documents.  Id. at 18.  College Park points to 42 C.F.R. § 483.75(h) and (i), which provide:

(h) Disclosure of information. A State or the Secretary may not require disclosure of the records of such [QA] committee except in so far as such disclosure is related to the compliance of such committee with the requirements of this section.

(i) Sanctions. Good faith attempts by the [QA] committee to identify and correct quality deficiencies will not be used as a basis for sanction.

(emphasis added). 

College Park argues the state surveyors improperly cited a deficiency for an issue its QA Committee had already identified and corrected prior to the beginning of the survey.  P. Br. at 18.  College Park complains facilities will become apprehensive about their quality assurance activities for fear that information generated therefrom that is supposed to be used for internal self-evaluation and critical review will instead be used against them in a subsequent deficiency report or administrative proceeding.  Id. at 18-19.

College Park’s claim is without merit because it has not demonstrated the surveyors relied on information produced by its QA Committee to identify the deficiency at issue.  College Park does not even claim the surveyors requested the facility to disclose any QA records for review that would have led the surveyors to discover Nurse Olson’s expired license.  Instead, the record shows the surveyors learned of Nurse Olson’s expired license by interviewing the facility’s staff, including the Administrator, the Director of Nursing, and Nurse Olson.  CMS Ex. 11 at 2-3.

College Park’s claim that the surveyors could not independently cite the facility for any deficiency investigated or identified by its QA Committee is similarly without merit.  The

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drafters of the regulation cited by College Park specifically addressed the facility’s concern:

We [CMS] also retain the proposed requirement that ‘‘Good faith attempts by the committee to identify and correct quality deficiencies will not be used as a basis for sanction.’’  This requirement is not new; however, it now also includes QAPI [Quality Assurance and Performance Improvement] activities.  As is currently the case, surveyors are instructed not to cite as a deficiency for a requirement other than the QAPI requirements a concern that would not have been identified but for a review of QAPI materials for the purpose of determining compliance with the QAPI regulations. That said, nothing in this section would preclude a surveyor from citing a concern that is identified based on a review of materials or on observations separate and apart from an assessment of QAPI compliance.  Excluding such a concern simply and only because it has also been identified by the QAPI program would be irresponsible of CMS.

81 Fed. Reg. 68,688, 68,806 (Oct. 4, 2016) (emphasis added).  The SOM plainly states that “if the survey team had already independently (not through use of the records) identified noncompliance in the same areas as those that have been selected by the [QA] committee, the team is expected to cite the noncompliance for the other requirements.”  SOM, CMS Pub. 100-07, App. PP at 541 (rev. 107, eff. Aug. 17, 2007), available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R107SOMA.pdf; see also Jewish Home of E. Pa., DAB No. 2254 at 6 n.3 (2009) (explaining the regulations establishing disclosure and use restrictions for QA Committee records do not establish an evidentiary privilege or rule of evidence).

Though College Park’s QA Committee may have identified and addressed Nurse Olson’s expired license, there is no indication that the surveyors learned of this deficiency by reviewing QA Committee documents.  College Park’s concerns as to the integrity of its QA process are therefore unfounded.  The facility otherwise makes no effort to dispute the basis of the surveyor’s findings as to this deficiency.  I therefore find College Park was out of substantial compliance with the staff licensing requirement mandated by 42 C.F.R. § 483.70(f).

5.  Scope and Severity

Based on the findings of the January 18, 2017 survey at issue before me, CMS cited College Park for multiple deficiencies at an “L” scope and severity level, meaning

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widespread immediate jeopardy to resident health and safety.  SOM, Chap. 7, § 7400.5.1 at 9-10 (rev. 161, eff. Sept. 23, 2016), available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R161SOMA.pdf.  College Park argues this determination was not justified, or at least not justified beyond level “D.”  P. Closing Br. at 15-17.  College Park explains the citations involve only one resident and one incident, which is not enough to constitute a deficiency with “widespread” immediate jeopardy.  Id. at 15.  College Park argues that the state survey report does not contain adequate evidence of the requisite elements of immediate jeopardy, namely:  (1) harm; (2) immediacy; and (3) culpability.  Id. at 15-16.  College Park also asserts that “actual” harm is a component of an “L” citation, that the surveyors did not identify future or “prospective” harm for any specific resident at the time of the survey, that the facility acted swiftly and appropriately when the nurses realized Resident 1’s critical condition, and that College Park has an aggressive abuse and neglect prohibition program in place and cleared the immediate-jeopardy condition in less than 48 hours after it was called.  Id. at 15-18.

Immediate jeopardy exists if a facility’s noncompliance has caused or is likely to cause “serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.  I must uphold CMS’s determination as to the level of a facility’s noncompliance (which would include an immediate jeopardy finding) unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The Board has consistently observed that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004), citing Koester Pavilion, DAB No. 1750 (2000); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9 (2007). 

I cannot find CMS’s determination of immediate jeopardy here to be clearly erroneous.  In the first place, contrary to Petitioner’s argument, the regulation does not require that a residentsuffer actual harm.  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012). 
And it is not difficult to conclude the deficiencies arising here would be likely to cause “serious injury, harm, impairment, or death” to potentially all the facility’s residents.  42 C.F.R. § 488.301.  Resident 1 did not promptly receive CPR because the facility did not respond to his grandson quickly to verify his emergent condition, and then spent unnecessary minutes verifying the resident’s code status. 

Emergency situations involving CPR are by their nature very serious, and often a matter of life or death.  Any delay in initiating CPR and providing basic life support dramatically reduces chances of survival.  Brian Ctr. Health & Rehab./Goldsboro, DAB No. 2336 at 13 (2010) (characterizing CPR as a “basic life-saving procedure”).  Even the three- to four-minute delay estimated by College Park could have caused significant harm, including brain damage or death.  SOM, App. PP at 7; P. Ex. 6 at 1 (providing CPR administered “promptly” can help avoid or minimize brain damage, which can

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occur in four to six minutes). 

Far from affecting only one resident, the facility’s flawed procedure for verifying code status potentially affected all of its residents by placing them at risk of not receiving prompt CPR during exigent circumstances.  College Park appears to have followed the same ad hoc procedure for verifying code status for all its residents:  if the resident’s primary nurse happened to be near and in the room, the resident would receive quicker care because that nurse would presumably know the resident’s code status.  Or if another nurse happened to be nearby and logged into a cart, that nurse could more quickly check the resident’s status. 

But otherwise, as happened here, it is entirely possible the wrong nurse or nurses, lacking ready access to a cart or the resident’s usual nurse, would need to leave the resident’s room in an emergency and verify code status with the 24-hour report at the nurse’s station or on the nearest computer before initiating CPR.  The facility’s ad hoc reliance on the hope that the right nurse would be in the vicinity during an emergency does not merit describing as a policy.  The unnecessary delays that occurred were highly foreseeable and, unfortunately for the residents of College Park, bound to eventually happen to one of them.  I cannot conclude CMS’s determination of immediate jeopardy was clearly erroneous.

6.  I affirm the period of immediate jeopardy, but shorten the duration of the period of non-immediate jeopardy.

CMS imposed an immediate-jeopardy level CMP from December 9 through 23, 2016, and a non-immediate-jeopardy level CMP from December 24, 2016 through January 18, 2017.  CMS Ex. 1 at 16.  College Park argues that the duration of both the immediate- and non-immediate-jeopardy level CMPs should be reduced.  P. Br. at 21-22; P. Closing Br. at 19-20.  I address each period in turn. 

Concerning the finding of immediate jeopardy, College Park does not actually articulate what the period of immediate jeopardy should be.  Id.  But College Park argues that the surveyors do not identify one single instance of inappropriate conduct or licensure violation by the facility with respect to providing CPR between December 9 and 23, 2016.  P. Closing Br. at 19.  I surmise Petitioner believes the immediate jeopardy period should last one day, the day Resident 1 died. 

Petitioner asks me to assume substantial compliance for the period following the day Resident 1 died.  But that request is squarely inconsistent with holdings of the Board, which has explained noncompliance is presumed to continue until the facility demonstrates it has achieved substantial compliance.  Cary Health & Rehab. Ctr., DAB No. 1771 at 23-24 (2001); see also Park Manor Nursing Home, DAB No. 2005 at 26 (2005), aff’d sub nom. Park Manor v. U.S. Dep’t of Health & Human Servs., 495 F.3d

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433 (7th Cir. 2007).  

The Board has also held that “[t]he burden is on the facility to show that it timely completed the implementation of [its] plan [of correction] and in fact abated the [immediate] jeopardy (to reduce the applicable CMP range) or achieved substantial compliance (to end the application of remedies).”  Lake Mary Health Care, DAB No. 2081 at 29 (2007), citing, e.g., Spring Meadows Health Care Ctr., DAB No. 1966 (2005).

For the duration of immediate jeopardy deficiencies in particular, the Board has explained that a “determination by CMS that a SNF’s ongoing compliance remains at the level of immediate jeopardy during a given period constitutes a determination about the ‘level of noncompliance’ and, therefore, is subject to the clearly erroneous standard of review under section 498.60(c)(2).”  Brian Ctr. Health & Rehab./Goldsboro, DAB No. 2336 at 7-8.  In other words, the facility’s burden of demonstrating clear error in CMS’s immediate jeopardy determination also “extends to overcoming CMS’s determination as to how long the noncompliance remained at the immediate jeopardy level.”  Azalea Court, DAB No. 2352 at 17 (2010), citing Brian Ctr. Health &Rehab./Goldsboro, DAB No. 2336 at 7.

I find that CMS’s determination of a period of immediate jeopardy lasting from December 9 through December 23, 2016 was not clearly erroneous.  As noted, “[t]he burden is on the facility to show that it timely completed the implementation of [its] plan [of correction] and in fact abated the [immediate] jeopardy (to reduce the applicable CMP range).”  Lake Mary, DAB No. 2081 at 29, citing, e.g., Spring Meadows Health Care Ctr., DAB No. 1966 (2005).  Here, the deficient provision of CPR to Resident 1 occurred on December 9, 2016, but the facility’s plan of correction (referred to as “the Facility’s Plan of Removal for Immediate Jeopardy”) was not even accepted by CMS until December 21, 2016.  CMS Ex. 2 at 14.  The presumption of ongoing deficiency would at minimum require the duration to extend to that date.  Cary Health & Rehab. Ctr., DAB No. 1771 at 23-24.  Moreover, College Park’s plan of correction included retraining staff on emergency assistance procedures and CPR, which was not completed until December 23, 2016.  CMS Ex. 2 at 17.  Thus, College Park did not fully abate the immediate-jeopardy deficiencies until December 23, 2016.  Petitioner has offered no evidence to support an earlier date for its return to compliance. 

College Park also argues the non-immediate-jeopardy duration period should be shortened because Nurse Olson did not cause any resident harm and was suspended by College Park as a result of his expired temporary license on January 5, 2017, nearly two weeks before the January survey in this case.  P. Closing Br. at 19-20.  The facility otherwise notes CMS offered no evidence to support its period of noncompliance.  Id. at 20.

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Although these arguments were unpersuasive as to the issue of Petitioner’s noncompliance, they are relevant as to its duration.  The sole basis for the non-immediate jeopardy deficiency finding was Petitioner’s substantial non-compliance with 42 C.F.R. § 483.70(f)(1)-(2).  The CMP for this deficiency stemmed from the facility’s failure to ensure its staff had current nursing licenses.  College Park notes it suspended Nurse Olson for having an expired temporary LVN license, and that this suspension occurred nearly two weeks before the second survey completed on January 18, 2017.  P. Closing Br. at 19-20, citing CMS Ex. 14 at 3. 

The record supports College Park’s argument that the facility had already taken necessary steps to correct this issue as soon as it became aware of it through its own internal review process, and that it did not pertain to any other employee except Nurse Olson.  The facility administrator reported at the January 2017 survey that the facility’s corporate office notified him at the end of 2016 that the Human Resources department would be responsible for ensuring all employees’ licenses and certifications were current. CMS Ex. 11 at 2.  A disciplinary note dated January 5, 2017 indicates that Nurse Olson was suspended on that date pending an investigation.  CMS Ex. 14 at 3-4.  Staff interviews conducted during the January 2017 survey confirm that the facility suspended Nurse Olson on January 5, 2017.  CMS Ex. 11 at 2-3. 

No other licensure violations aside from that pertaining to Nurse Olson were identified by CMS or in the SOD.  The SOD does not indicate why the surveyors determined the facility’s noncompliance persisted through January 18, 2017, the date of the survey.  Critically, CMS’s brief is silent on this matter as well.  Neither CMS nor the state agency has indicated College Park needed to develop and complete a plan of correction related to this deficiency.  The facility’s suspension of Nurse Olson thereby removed any possibility of harm for any of its residents arising from this deficiency. 

Accordingly, I find College Park returned to substantial compliance with the licensing requirement by January 5, 2017 and implemented procedures for remaining in substantial compliance with the licensing requirement before that date.  I find the non-immediate-jeopardy CMP ran from December 24, 2016 through January 5, 2017, not January 18, 2017, as CMS originally proposed.

7.  The per-day CMPs imposed by CMS are reasonable.

A per-day CMP may range from either $103 to $6,188 per day for less serious noncompliance, or $6,291 to $20,628 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  42 C.F.R. § 488.438(a)(1).9   In

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determining the reasonableness of the penalty amount imposed, I look to the factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors include the seriousness of the deficiency, the facility’s compliance history, its financial condition, and its degree of culpability.  Id.  

CMS asserts that College Park’s noncompliance history, the seriousness of the deficiencies, and the facility’s culpability all support the $14,891 and $1,253 per-day respective CMPs for the immediate- and non-immediate-jeopardy deficiencies.  CMS Br. at 7.10   In response, College Park observes that CMS did not present evidence from any witness confirming the reasonableness of the proposed penalty, while College Park’s expert, Dr. Pearl Merritt, testified that the subtotal CMP for the immediate‑jeopardy period, over $220,000, was “not at all justified.”  P. Closing Br. at 19.  Dr. Merritt opined that the CMP does not have any reasonable relation to the incident involving Resident 1 because College Park did not do anything to cause Resident 1’s death.  P. Ex. 17 at 11.

The Board has held that the CMP amount selected by CMS is presumptively reasonable based on the regulatory factors listed above, and that the burden is on the SNF “to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction [in the penalty amount] is necessary to make the CMP amount reasonable.”  Crawford Healthcare & Rehab., DAB No. 2738 at 19 (2016).  Dr. Merritt’s opinion does nothing to rebut that presumption.  She failed to even address the regulatory factors I must consider to determine the reasonableness of the penalty – factors which appear to be well outside of her expertise as a doctor of education.  P. Ex. 17 at 11.  Dr. Merritt’s conclusory opinion is also premised on her erroneous assumption that the facility had to have caused Resident 1’s death in order to justify the penalty.  Id.  There is no requirement that a SNF cause actual harm or contribute to or cause the death of a resident in order to be subject to penalties within the immediate‑jeopardy deficiency ranges.  42 C.F.R. § 488.301; Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8.

Upon consideration of the regulatory factors unaddressed by Dr. Merritt, I ultimately find the $14,891 per-day immediate-jeopardy CMP proposed by CMS to be reasonable.  Neither party addresses the facility’s compliance history or relied upon it to either argue for the reasonableness of the penalty or for a reduction thereof.  Similarly, College Park has not proffered evidence of financial vulnerability that would warrant a reduction in the CMP amounts.

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For the remaining factors, I address the CMPs separately.  A per-day amount in the middle-to-upper immediate-jeopardy penalty range is warranted for the immediate jeopardy CMP given the seriousness of the deficiencies at issue here.  An immediate jeopardy determination need not be based on a finding of actual harm, as Petitioner and Dr. Merritt claim, but simply a risk of likely serious harm or death.  That has been well‑established in this case, which primarily arose from an emergency situation involving a resident who needed but did not promptly receive potentially lifesaving CPR because the facility was delayed in verifying his code status.  The ad hoc procedure relied on by College Park placed all of the facility’s other residents at risk of not receiving timely CPR as well.  See Royal Manor, DAB No. 1990 at 8 (holding the facility’s “demonstrated incompetence” in responding to a life-threatening emergency was likely to harm other residents with a similar medical emergency).  The risk of harm was significant, widespread, and therefore serious.

I also find the facility has a high degree of culpability in this matter, further justifying a per-day CMP in the middle-to-upper range.  College Park should have foreseen the need to develop a better procedure for verifying code status, given the likelihood that any member of its aged and infirm resident population would require prompt initiation of CPR at some point.  The ease with which the facility developed a new procedure that addressed this highly foreseeable problem reinforces its culpability.

As for the non-immediate-jeopardy level CMP, CMS imposed a $1,253 per-day CMP, which is in the lower range of penalty amounts available.  I also find this amount to be reasonable.  The deficiency is serious because the facility placed its residents at risk of receiving care from unqualified professionals.  I recognize College Park took action through its own internal quality assurance process and discovered Nurse Olson’s expired license before the January 18, 2017 survey.  However, I have accounted for the facility’s self-correction by reducing the period of duration. 

The facility’s culpability during that reduced period of deficiency is significant because it allowed Nurse Olson to provide care for over a month after his temporary nursing license had expired.  CMS Ex. 11 at 2-3.  There is no excuse for this delay and, indeed, there is evidence that prior to this incident, the facility had not routinely verified staff licenses at all.  When interviewed by the surveyor, the Director of Human Resources indicated that he did not verify staff members’ licensure after their initial hiring and prior to changing their system as a result of this survey, but “expected the nurse[s] to ensure their license[s] [were] up to date.”  Id. at 3.  College Park was obliged to protect its vulnerable resident population by ensuring, on an ongoing basis, that its staff members had current licenses, rather than simply hoping their employees maintained their licensure. 

Accordingly, in light of the seriousness of the deficiencies and the facility’s culpability, I find the $14,891 and $1,253 per-day CMPs for the immediate- and non-immediate

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jeopardy deficiencies in this case to be reasonable.

VI.     Conclusion

Based on the foregoing, I conclude that College Park was out of substantial compliance with Medicare participation requirements.  I sustain the imposition of a $14,891 per‑day CMP from December 9 through 23, 2016, and a $1,253 per-day CMP from December 24, 2016, through January 5, 2017, for a total CMP of $240,907.

1. College Park filed two requests for hearing in this matter, the second on June 2, 2017.  Both requests were consolidated under C-17-770.
• back to note 1
2. CMS never filed written direct testimony for Daniel McElroy, the other witness it withdrew.
• back to note 2
3. If CMS believed Petitioner had raised new arguments concerning this issue in its pre-hearing brief, CMS could have sought leave to supplement the record in the lengthy period between the filing of Petitioner’s pre-hearing exchange and the date of the hearing.  CMS did not do so.
• back to note 3
4. The Board has affirmed use of the AHA’s guidance concerning CPR initiation as an accepted professional standard of care within the context of assessing a facility’s compliance with the applicable regulations.  N. Las Vegas Care Ctr., DAB No. 2946 at 6 (2019), citing John J. Kane Regional Ctr. – Glen Hazel, DAB No. 2068 at 11-12 (2007).
• back to note 4
5. In any case, Resident 1’s grandson stated that he did not perform a full assessment and was primarily concerned with removing his family from the resident’s room and then contacting a staff member.  Nothing in his testimony suggests he attempted to assess his grandfather and relay his clinical findings to Nurse Olson.  CMS Ex. 2 at 7; CMS Ex. 8 at 12.
• back to note 5
6. Nurse Olson explained he did not know Resident 1’s code status because he did not normally work in that hall, and that he would normally be able to verify Resident 1’s code status from the computer on the medication cart he was using, but he had already logged out.  CMS Ex. 2 at 8.  Resident 1’s chance for survival should not have hinged on which staff member happened to be in the vicinity or whether that individual happened to be logged into a device.  Any staff member should have been able to quickly ascertain Resident 1’s code status in an emergent condition.
• back to note 6
7. Indeed, following the survey and resulting deficiency finding, College Park implemented the exceedingly simple corrective measure of marking resident rooms with a red or green sticker to indicate that resident’s code status.  CMS Ex. 2 at 14-15.  The facility was able to create a system that allowed its staff to immediately respond in the event of a crisis with little effort or cost.  Given the foreseeability of this event, such a simple system should have already been in use.
• back to note 7
8. If nothing else, I presume the facility would comply with the obligation to meet professional standards of care during the first 21 days after a resident’s admission so that its staff could maintain their good standing in the nursing and medical boards in which they are licensed, whatever this regulation says.
• back to note 8
9. CMS increased the CMP amounts to account for inflation in compliance with the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015, Pub. L. No. 114-74, § 701, 129 Stat. 584, 599 (2015).  See 81 Fed. Reg. 61,538, 61,549 (Sep. 6, 2016).  The inflation-adjusted amounts apply to CMPs assessed after August 1, 2016, for deficiencies occurring on or after November 2, 2015.  Id. at 61,538.
• back to note 9
10. CMS devotes less than one double-spaced page in its pre-hearing brief to the reasonableness of a nearly quarter-million dollar penalty.  CMS Br. at 7.  It makes no mention of this issue in its closing brief at all.  CMS fails to address any of the regulatory factors in any detail, and submitted no evidence whatsoever concerning the facility’s prior compliance history.  The agency may enjoy a presumption of reasonableness in its calculation of CMPs, but it does a profound disservice to the notion of due process by failing to articulate any argument at all concerning the reasonableness of the penalties it chooses to impose, and then demanding by dint of sheer inaction that I fashion a rationale for its penalty determinations ex post facto.  CMS and its counsel can – and should – do better.
• back to note 10