South Louisiana Nursing and Rehab, et. al., DAB CR6115 (2022)

DECISION

I enter summary judgment in favor of The Centers for Medicare & Medicaid Services (CMS) and against the following Petitioners:  South Louisiana Nursing and Rehab, C-22-

Page 2

198; Maison DeVille Nursing Home of Harvey, C-22-199; Maison DeVille Nursing Home – Houma, C-22-200; Maison Orleans Healthcare of New Orleans, C-22-201; Park Place Healthcare, C-22-202; River Palm Nursing Home Rehab, C-22-203; and West Jefferson Healthcare Center, C-22-204.  Remedies that I sustain include the imposition of civil money penalties against each Petitioner and termination of each Petitioner’s participation in the Medicare program.

I. Background

Each Petitioner that I identify in this decision’s opening paragraph is a skilled nursing facility.  All seven facilities are owned by one individual, Mr. Bob Dean, Jr.  CMS Ex. 11 at 2.¹

The hearing requests filed by these Petitioners are docketed separately.  However, the principal allegations of noncompliance are common to all facilities and rest on identical facts.  Indeed, Petitioners filed identical oppositions to CMS’s motions for summary judgment.  For that reason, I am issuing a single, consolidated decision that addresses the allegations as they pertain to all seven Petitioners.²  Each Petitioner has separate and independent appeal rights should it choose to appeal this decision as it pertains to that Petitioner.

In deciding whether to enter summary judgment, I must base my decision only on material facts that are undisputed.  I must draw all reasonable inferences from the undisputed facts that may favor the party who defends against summary judgment.

I grant summary judgment here because there are no disputed issues of material fact, because the undisputed facts overwhelmingly establish Petitioners’ noncompliance with Medicare participation requirements, and support the remedies that CMS determined to impose.  These facts allow only the conclusion that Petitioners egregiously violated Medicare participation requirements, that their violations comprised immediate jeopardy for Petitioners’ residents, and that CMS’s remedy determinations are reasonable.

Petitioners argue that there are “numerous factual disputes as to what happened” and that I must hear from witnesses and make credibility findings to decide these cases.  Opposition to Respondent’s Motion for Summary Judgment (Petitioners’

Page 3

Brief) at 1.  However, Petitioners did not cite to any evidence to support these assertions, except for an Appeal Letter filed with the Louisiana Department of Health and attachments.³  Nor did Petitioners offer the testimony of a single witness to rebut the evidence offered by CMS.⁴

I have not received exhibits into evidence in these cases because the material facts are undisputed.  However, I cite to some of CMS’s exhibits and to Petitioners’ assertions, either to illustrate undisputed facts or to explain why Petitioners’ assertions are unsupported or irrelevant.

II. Issues, Findings of Fact and Conclusions of Law

1. Issues

The issues are whether the undisputed material facts establish that:  Petitioners failed to comply with Medicare participation requirements; Petitioners’ noncompliance with certain requirements put residents of their facilities at immediate jeopardy; and CMS’s remedy determinations are reasonable.

2. Findings of Fact and Conclusions of Law
   1. Noncompliance Allegations That are Common to all Petitioners

These cases center on the measures that Petitioners took to contend with the dangers posed by a hurricane, Hurricane Ida, that threatened their facilities at the end of August and the beginning of September 2021.  Petitioners opted to deal with Ida’s threat by evacuating their residents to a warehouse.  CMS Ex. 10 at 1-2.  Petitioners housed all

Page 4

residents of their facilities – at least 838 individuals – in a common space, consisting of the warehouse’s floor.  CMS Ex. 10 at 2.  CMS grounds its noncompliance and remedy determinations on facts establishing how Petitioners housed and treated these residents.

CMS asserts that Petitioners failed to comply with the following regulations.

• 42 C.F.R. § 483.73(b).  Skilled nursing facilities must develop and implement emergency preparedness policies and procedures for their residents.  The regulation specifically directs facilities to address: residents’ subsistence needs; the provision of food, water, and pharmaceutical supplies; and, alternative sources of energy to maintain temperatures sufficient to protect residents’ health and the safe and sanitary storage of provisions, emergency lighting, fire detection, extinguishing and alarm systems, and sewage and waste disposal.
  
  CMS does not contend that Petitioners failed to adopt policies to deal with emergencies.  Rather, it asserts that Petitioners failed to implement their policies, resulting in the 838 residents living under deplorable and unsafe conditions.  CMS Brief at 13-17.  More specifically, CMS alleges that Petitioners failed to ensure the provision of subsistence for their residents, failed to ensure that there was a functioning fire detection system in the warehouse, and failed to assure continuity of care for the residents.  Id.

• 42 C.F.R. § 483.12(a)(1).  All nursing facility residents have the right to be free from neglect (“neglect” is defined at 42 C.F.R. § 488.301 to mean failure to offer goods and services to residents that are necessary to avoid physical harm, pain, mental anguish, or emotional distress).
  
  CMS alleges that Petitioners neglected the 838 residents by failing wholesale to: provide these residents with the care that they required; enforce even minimal protocols to protect the residents from the spread of infectious illness; keep the residents in a safe and comfortable and hygienic environment; protect the residents’ privacy; establish a communication system by which the residents could alert staff to their needs; and ensure a safe means to evacuate the warehouse.
  CMS Brief at 17-19.

• 42 C.F.R. § 483.70(d)(1),(2).  A skilled nursing facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.  Each facility must have a governing body or a designated person functioning as its governing body that is legally responsible for establishing and implementing management and operations policies.

Page 5

CMS argues that Petitioners failed to comply with this requirement because their owner (effectively, their governing bodies) failed to protect residents from abuse and neglect and because he failed to implement emergency preparedness policies and procedures.  CMS Brief at 19-21.

• 42 C.F.R. § 489.75(a)(18).  A participating provider, including any participating skilled nursing facility, must grant immediate access to its premises upon a reasonable request from a state survey agency or other authorized entity for the purpose of determining whether that facility meets applicable Medicare requirements and conditions of participation.
  
  CMS asserts that Petitioners violated this requirement because on August 31, 2021, Petitioners’ owner refused to allow a state agency surveyor continued access to the warehouse.  CMS Brief at 20-21.

The undisputed facts unequivocally sustain CMS’s allegations.

Surveyors employed by the Louisiana state survey conducted a survey of the warehouse that they completed on September 2, 2021.  CMS Ex. 2.  They discovered that the warehouse did not meet applicable public safety standards.  Id.  The warehouse did not have a permitted kitchen.  CMS Ex. 9 at 4.  Staff were preparing food outdoors in violation of public health requirements.  There was no fire watch at the warehouse and staff had not demonstrated that they could perform this task.  There was a large amount of flammable material on site.  There were no evacuation aisles for staff and residents.  There was no communication with the local fire department.  Id.

The surveyors saw residents living in terrible conditions.  Id. at 7-8.  Most residents were lying on air mattresses placed directly on the warehouse floor, with the mattresses placed only inches apart.  Id. at 3.  Residents from multiple facilities were commingled in the warehouse, they were not wearing identification bracelets, and it was impossible to ascertain which resident came from which facility.  Water had leaked into the warehouse in some places and puddles were present, smeared with dirt and mud.  The air was fetid, pervaded with the stench of urine and feces.  Toilets were filled to the brim with human waste.  Id. at 4.  Residents’ bedding showed visible signs of dirt from being walked on by residents and staff.  Id. at 3.

Residents were in a deplorable state.  A resident told the surveyors that she had not been bathed in four days and that she was wearing the same clothing that she wore when she was transported to the warehouse.  Id. at 7.  Several residents wore only t-shirts and briefs and were without pants.  One resident was observed wearing a t-shirt and a brief that contained a brown substance.  Another resident was seen lying face down on the floor between his mattress and the adjoining mattress.  A female resident softly called for help, without response from any staff member.  Another female resident was visible from

Page 6

multiple lines of sight, naked.  Id. at 8-9.  Other residents called for help without response from staff.  Id. at 7-8.  A male resident was observed lying naked on a mattress on the floor without a covering sheet.  A female resident lay near the warehouse entrance, clad only in a t-shirt and a brief.  Another resident pleaded with the surveyors to be relocated from the warehouse.  Id.

The surveyors discovered a resident who was perspiring heavily, visibly struggling to breathe, and calling for help.  Staff were seated nearby but did not respond to the resident’s pleas.  The surveyors observed another resident lying half on a mattress and half on the warehouse’s concrete floor, unassisted by staff, who were seated nearby.  A female resident lay on a mattress, naked from the waist down.  Id. at 9.

The surveyors observed residents being fed.  Their meal consisted of ten small noodles in tomato sauce, about one or two tablespoons of beans, and about a quarter of a cup of fruit.  Id. at 7.

Most of the residents, placed inches apart, were not wearing face masks.  Id.  This was amid the Covid-19 (Covid) pandemic.  At the end of August 2021, Louisiana was hit harder by the pandemic than many other states, averaging well over 4,000 new cases of Covid per day.  Tracking U.S. covid-19 cases, death and other metrics by state, The Washington Post, https://www.washingtonpost.com/graphics/2020/national/coronavirus-us-cases-deaths/?itid=hp_pandemic_gfx/&state=LA (last visited July 5, 2022).

Residents who were scheduled to receive medical treatments did not receive them.  Others did not receive routine care.  A total of 36 residents eventually had to be transported from the warehouse to local hospitals.  CMS Ex. 4 - 7.

 For example, on September 1, 2021, the surveyors discovered one resident who had to be transported to a hospital emergency department suffering from, among other things, acute respiratory distress, acute hypertension, and pulmonary edema.  CMS Ex. 9 at 9.  The resident required regular kidney dialysis, three times a week.  However, the resident had not received dialysis since August 26, 2021, five days previously.  Id.

Other residents missed dialysis appointments and were admitted to local hospitals for emergency treatment.  CMS Ex. 4 at 12-13; CMS Ex. 5 at 1, 8; CMS Ex. 6 at 7.  Four residents were admitted to hospitals from the warehouse suffering from hunger and/or thirst.  CMS Ex. 4 at 2-3, 7-8; CMS Ex. 7 at 3-5.  Two additional residents were admitted to hospitals suffering from hypoglycemia.  CMS Ex. 6 at 1; CMS Ex. 7 at 3-5.  Three residents were transported to hospitals after losing consciousness.  CMS Ex. 4 at 8; CMS Ex. 5 at 3-4; CMS Ex. 6 at 4-5.

These undisputed facts establish that Petitioners violated 42 C.F.R. §§ 483.73(b), 483.12(a)(1), and 483.70(d)(1)(2).

Page 7

First, they prove Petitioners’ failure to implement their emergency preparedness plans. Petitioners were utterly unprepared to relocate their residents in a way that provided them with safe and sanitary conditions.  The horrific circumstances under which these residents found themselves at the warehouse speak for themselves.  Moreover, Petitioners failed to implement basic fire safety planning.  The warehouse did not have lawful kitchen facilities and Petitioners provided inadequate food to the residents who were housed there.

The conditions at the warehouse showed not only a wholesale disregard for emergency planning, but also contravened specific elements of Petitioners’ emergency preparedness plans.  For example, Petitioners had instructed that each evacuated resident wear bracelets identifying the resident’s name, birth date, home facility, allergies, critical diagnoses, and critical medical information.  CMS Ex. 13 at 100.  Notwithstanding, residents at the warehouse did not wear identifying bracelets, rendering it difficult or impossible for staff to provide care that addressed residents’ individual needs.  CMS Ex. 9 at 3.

As another example, Petitioners had adopted policies to deal with Covid infections but ignored those policies at the warehouse.  CMS Ex. 13 at 209-214.  Not only were Petitioners’ residents housed in miserable conditions, but Petitioners totally ignored even basic infection control requirements at a time when Covid ran rampant through Louisiana.  CMS Ex. 9 at 3.

The undisputed facts unquestionably establish that Petitioners neglected their residents.  The fact that an emergency existed did not excuse Petitioners from providing these residents with the accommodations and skilled nursing care mandated by regulations.  Here, however, there was a wholesale disregard by Petitioners for their responsibilities.  The facts describe a chaotic situation in which frail and helpless individuals were left to their own devices in a hellish environment.

The responsibility for this nightmarish scenario rests directly on Petitioners’ management.  Management was responsible for devising and implementing emergency planning.  The management – the owner – of these facilities failed utterly to discharge his responsibilities.

The undisputed facts establish an additional violation by Petitioners, of 42 C.F.R. § 489.75(a)(18).  Petitioners’ management had a duty to allow Louisiana state survey agency surveyors to survey the warehouse and to interview staff and residents.  But on the afternoon of August 31, 2021, surveyors were aggressively confronted by Petitioners’ owner, who evicted the surveyors from the warehouse.  CMS Ex. 9 at 13.

Petitioners offer no defense to the undisputed facts.  They do not challenge any of them aside from baldly asserting that there are fact disputes in these cases that necessitate a

Page 8

hearing.  Petitioners’ Brief at 1.  Unsubstantiated denials of material facts are not grounds to deny a motion for summary judgment:

To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under governing law.

Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010), aff’d, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F. App’x 820 (5th Cir. 2010).

As I note above, Petitioners urge that I read the Appeal Letter and exhibits attached to their Brief.  Petitioners’ Brief at 2.  I have read them, and I do not perceive any facts in these documents that rebut CMS’s allegations and the undisputed facts.  Indeed, Petitioners have not identified anything in these attachments that rebut the facts offered by CMS.  They simply allude to the attachments as providing some proof of a fact dispute.  That is not enough to rebut a motion for summary judgment.  If Petitioners intend to rebut facts offered by CMS, then they must identify the facts that allegedly create a dispute.  They have not done so.

Petitioners argue that there were no staffing issues at the warehouse and that the capacity of the facility greatly exceeded the number of residents that Petitioners housed there.  Petitioners’ Brief at 2.  I accept these assertions as true for purposes of deciding the motions for summary judgment.  However, they are irrelevant to my findings.  I do not find, for example, that the warehouse census exceeded the facility’s total capacity, although clearly, residents in the warehouse were crowded together in an unacceptable way.  The conditions at the warehouse were deplorable no matter what the total capacity of the building may have been.  Nor do I find that Petitioner had inadequate staff on hand to treat the residents that were at the warehouse.  Indeed, CMS does not allege staffing inadequacy.  But the undisputed facts establish abject failure by staff – adequate in number or not – to meet the needs of the residents at the warehouse.

2. Immediate Jeopardy

CMS asserts that Petitioner’s noncompliance with 42 C.F.R. §§ 483.73(b), 483.12(a)(1), and 483.70(d)(1), (2) was so egregious as to pose immediate jeopardy for the residents housed at the warehouse.  The undisputed material facts unequivocally support this assertion.

Regulations define “immediate jeopardy” as noncompliance that causes or is likely to cause serious injury, harm, impairment, or death to one or more residents.  42 C.F.R. § 488.301.  Where CMS establishes noncompliance and determines that the

Page 9

noncompliance is at the immediate jeopardy level, it is the facility’s burden to prove that the determination is clearly erroneous.  42 C.F.R. § 498.60(c)(2).

In cases in which I hold a hearing, I would expect the facility, if it sought to rebut a determination of immediate jeopardy level noncompliance, to offer evidence that proved that the determination is clearly erroneous.  Petitioners’ burden is somewhat different here because CMS has moved for summary judgment.  Here, I ask:  have Petitioners offered facts from which I might infer that the determinations of immediate jeopardy level noncompliance are clearly erroneous?

Petitioners failed that test.  They offered no facts to rebut CMS’s assertion of immediate jeopardy level noncompliance.  See generally Petitioners’ Brief.

The undisputed facts of this case allow only one conclusion and that is that Petitioners’ noncompliance put the residents in the warehouse in a state of immediate jeopardy.

It is not necessary to establish that individuals have suffered actual harm by the facility’s noncompliance to find immediate jeopardy.  Dumas Nursing & Rehab., L.P., DAB No. 2347 at 19 (2010), (citing Life Care Ctr. of Tullahoma, DAB No. 2304 at 58 (2010), aff’d, Life Care Ctr. of Tullahoma v. Secretary of U.S. Dep’t of Health & Human Servs., 453 F. App’x 610 (6th Cir. 2011)).  A likelihood of serious injury, harm, impairment, or death caused by noncompliance suffices to establish immediate jeopardy.  42 C.F.R. § 488.301.  In this case the undisputed facts establish that Petitioners’ noncompliance actually harmed many residents – 36 of them had to be transported from the warehouse to local hospitals.  But even in the absence of harm, the likelihood of harm was overwhelming.

Consider, for example, the likelihood that Covid would spread among residents due to Petitioners’ wholesale failure to implement minimal infection control measures at the warehouse.  I take notice that Covid is highly infectious and is spread by respiratory droplets.  Housing 838 residents crowded inches from each other and without masks is an invitation for that illness to spread.  I also take notice that Covid is far more lethal among sick and elderly individuals than it is among the general population.  It is common knowledge that Covid has taken a terrible toll on nursing facility residents, killing many thousands of them.

It is important to bear in mind who nursing facility residents are when considering the likelihood of harm to residents caused by Petitioners’ failure to enforce even minimal infection control standards.  By definition, any resident of a skilled nursing facility is too sick and/or frail to care for his or her personal needs.  Residents are mostly elderly, and frequently helpless.  Residents are extremely vulnerable to the ravages of infectious disease and often exhibit medical conditions that can deteriorate suddenly if not scrupulously attended to by nursing facility staff.

Page 10

But it was not just Covid that posed terrible risks for these residents.  There was a likelihood that residents would suffer great harm or worse due to the failure by Petitioners’ staff to attend to the conditions that put these residents under nursing care and by placing residents in intolerable living conditions.  Missed dialysis appointments, dehydration, hypoglycemic episodes, loss of consciousness, the need to hospitalize, emotional distress - all were the consequence of crowding hundreds of frail, very sick, and elderly individuals together in unlivable conditions, many of them not receiving prescribed care.

3. Remedies

CMS imposed the following remedies against each Petitioner:

• Civil money penalties of $22,320 per day for each day of a four-day period during which CMS determined the presence of immediate jeopardy level noncompliance.
• Termination of each Petitioner’s participation in Medicare.

Petitioners offered neither facts, nor arguments to challenge CMS’s remedy determinations.  However, I have considered these determinations based on the undisputed facts and I find them to be supported by applicable regulations.

The immediate jeopardy level civil money penalties fall within a permissible range for such penalties.  42 C.F.R. § 488.438(a)(1); 45 C.F.R. Part 102.  The amount is close to the top end of penalties within the permissible range.  I find the penalty amount to be amply justified, not only by the seriousness of Petitioners’ noncompliance, but by Petitioners’ culpability.  42 C.F.R. §§ 488.438(f)(1)-(4); 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  I need not reiterate here how horrific were the conditions under which Petitioners housed 838 frail and helpless individuals.  Nor do I need to restate the obvious harm that Petitioners caused these residents.  Suffice it to say that Petitioners’ conduct was egregious and plainly merited the penalties that CMS determined to impose.

As for termination of participation, that remedy is mandated by regulation due to Petitioners’ obstructing Louisiana state survey agency inspectors.  42 C.F.R. § 489.75(a)(18).

Moreover, CMS has authority to terminate Petitioners’ Medicare participation based on any of the findings of noncompliance with participation requirements that I sustain here.  The authority to terminate participation exists whenever a facility fails to comply substantially with Medicare participation requirements.  42 C.F.R. § 488.406.  That authority exists even where noncompliance does not place residents at immediate jeopardy.  Id.

Page 11

4. Additional Determinations That Petitioner, West Jefferson Healthcare Center, C-22-204, Failed to Comply Substantially with Medicare Participation Requirements.⁵

From August 8 through August 11, 2021, Louisiana state agency surveyors surveyed the facility of Petitioner, West Jefferson Healthcare Center (West Jefferson), for compliance with Medicare participation requirements.  Based on that survey, CMS determined that West Jefferson manifested several compliance deficiencies; deficiencies that are additional to those that I address above.

Specifically, CMS found that Petitioner failed to comply substantially with 42 C.F.R. §§ 483.10(i)(1)-(7), 483.12(a)(3)(4); 483.21(b)(1); 483.24(a)(2); and 483.80(a)(1)(2)(4)(c)(f).  CMS Ex. 1 at 1.

CMS asserts that undisputed facts support these determinations.  It alleges that on two occasions surveyors observed members of Petitioner’s staff failing to follow facility policies concerning the donning and use of personal protective equipment.  As a remedy, CMS imposed a per-instance civil money penalty of $5,000.  CMS Ex. 1 at 1.

Petitioner offered neither facts nor argument to challenge CMS’s determinations.  See Generally Petitioner’s Brief.  It does not deny any of the facts that CMS cites, nor does it deny that those facts support the findings of noncompliance.  Id.  Indeed, Petitioner does not address CMS’s allegations in its brief nor does it point to any document that it has submitted in connection with these cases that purportedly rebuts the facts alleged by CMS.  Id.  Finally, Petitioner offers no argument about the remedy CMS determined to impose.  Id.

I sustain CMS’s findings and its remedy determination in the absence of any fact dispute or argument from Petitioner. 

---

Endnotes

¹  Unless otherwise noted, the exhibits cited are to those as filed in Docket No. C-22-203.

²  CMS makes some additional noncompliance allegations about one of the facilities, West Jefferson Healthcare Center, C-22-204. I discuss these additional allegations in a subsection of this decision.

³  On January 21, 2022, I issued an Acknowledgment and Pre-hearing Order (Order) in each of the seven cases. The order in each case instructed the parties to file pre-hearing exchanges that included a list of all proposed exhibits and specific rules for the preparation and identification of proposed exhibits. Order at ¶¶ 3, 5. Petitioners filed no list of exhibits. Instead, in each case Petitioner filed an identical 54-page Appeal Letter with exhibits that was purportedly sent to the Louisiana Department of Health. Petitioner filed no exhibit list and the Appeal Letter does not meet any of the requirements for proposed exhibits set forth in ¶ 5 of my Order. Nonetheless, I have reviewed the Appeal Letter and attachments even though they do not comply with my Order.

⁴  The Pre-Hearing Order in each case instructed the parties to file pre-hearing exchanges that included a list of all proposed witnesses and the written direct testimony of any proposed witness. Order at ¶¶ 3, 7. Petitioners did not list any witnesses in their pre-hearing exchanges, nor did they offer the written direct testimony of any witnesses.

⁵  Briefs and exhibits cited in this section refer to those filed in C-22-204.