Grays Harbor Health & Rehabilitation Center, DAB CR5837 (2021)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) that Petitioner, Grays Harbor Health & Rehabilitation Center, a skilled nursing facility, failed to comply with a Medicare participation requirement governing the prevention and treatment of pressure ulcers.  I also sustain CMS's remedy determination consisting of a civil money penalty of $725 for each day of a period that began on February 14, 2019 and that continued through March 28, 2019.

I. Background

I very recently received this case as a transfer from the docket of another administrative law judge.  The parties have completed their pre-hearing exchanges of briefs and proposed exhibits.  CMS submitted proposed exhibits identified as CMS Ex. 1-CMS Ex. 13.  Petitioner submitted proposed exhibits identified as P. Ex. 1-P. Ex. 5.  Neither party filed objections to my receiving these exhibits into evidence.

Each party submitted the written direct testimony of a witness as a proposed exhibit.  CMS submitted the testimony of Stefani Anderson.  CMS Ex. 5.  Ms. Anderson is a

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registered nurse and a surveyor who conducted surveys of Petitioner's facility.  Id. ¶¶ 2-3.  Petitioner submitted the testimony of Robert Dillon Linhart, a physician's assistant and wound specialist.  P. Ex. 1.  Mr. Linhart attended to the resident whose care is at issue in this case.

Petitioner did not request to cross-examine Ms. Anderson.  CMS moved to cross‑examine Mr. Linhart.

As I explain in more detail below, I find Mr. Linhart's testimony – even if true – to be irrelevant to my decision and to the outcome of this case.  I therefore find it unnecessary to grant CMS's motion to cross-examine this witness.  I do not convene an in-person hearing.  Rather, I hear and decide this case based on the parties' written pre-hearing exchanges.  I receive into evidence CMS Ex. 1-CMS Ex. 13 and P. Ex. 1-P. Ex. 5.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether Petitioner failed to comply with a Medicare participation requirement and whether CMS's remedy determination is reasonable.

B. Findings of Fact and Conclusions of Law

CMS asserts that Petitioner failed to comply substantially with the requirements of 42 C.F.R. § 483.25(b).  CMS Ex. 1 at 5-7.  In relevant part, this section requires that a skilled nursing facility ensure that:

A resident receives care, consistent with professional standards of practice, to prevent pressure ulcers and does not develop pressure ulcers unless the individual's clinical condition demonstrates that they were unavoidable . . . .

42 C.F.R. § 483.25(b)(1)(i).

CMS contends that Petitioner contravened this section in providing care to a resident who is identified as Resident 1.  CMS Pre-hearing Brief at 5.

The evidence establishes the following.  Resident 1 suffered from a variety of impairments, including moderate cognitive impairment.  CMS Ex. 1 at 4.  She had a history of developing pressure ulcers.  P. Ex. 1 ¶ 5.  In January 2019, she manifested a pressure ulcer on her coccyx.  Id.

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On January 17, 2019, a nursing service inserted an intravenous line (IV line) into the resident's arm.  CMS Ex. 6.  The resident subsequently removed the line.  CMS Ex. 7 at 4.  Petitioner then sent the resident to a local hospital's emergency department where the attending staff inserted a new IV line into the resident's left hand.  CMS Ex. 7 at 4; CMS Ex. 8; CMS Ex. 9.  The hospital staff wrapped the resident's hand in tape in order to secure the line in position and returned Resident 1 to Petitioner's facility.  CMS Ex. 7 at 2; CMS Ex. 8 at 4, 5; CMS Ex. 11 at 1.

A consequence of wrapping Resident 1's hand was that the skin below the bandage was not visible for observation.  Petitioner's staff could not check the skin for integrity without removing the bandage.  Failure to remove the bandage would prevent the staff from assessing the IV insertion site for any possible swelling, infection, and skin breakdown.  CMS Ex. 5 ¶ 14.  Professionally recognized standards of nursing practice mandated Petitioner's nursing staff to observe the IV site at least once every eight-hour shift.  Id.  Indeed, the presence of a bandage on the resident's hand, coupled with the resident's propensity to develop pressure ulcers, should have alerted the staff to check periodically the skin on the resident's hand.  Id.

Petitioner's staff failed to make the requisite observations.  Petitioner's staff changed the bandage on Resident 1's hand only once during a two-day period beginning on January 19, 2019 and continuing into January 21, 2019.  CMS Ex. 10 at 3.  The staff reported hourly checks on Resident 1 during this period.  However, none of these checks recorded the condition of the skin on Resident 1's left hand.  See CMS Ex. 10.  The record contains no qualitative description of the hand's appearance and no notes concerning swelling, infection, or skin breakdown.  See id.

On January 21, 2019, Petitioner's staff removed the bandage on Resident 1's left hand and discovered the presence of a wound, approximately 1 cm x 1 cm in size, attributed by staff to the pressure caused by the bandage and the hub of the IV line.  CMS Ex. 7 at 2.

The evidence unequivocally describes a dereliction by Petitioner's staff to protect Resident 1 against the development of a pressure ulcer, in violation of regulatory requirements.  Professionally recognized standards of practice mandate that a nursing staff check the integrity of a bandaged resident's skin at least once every eight hours.  That can only be accomplished by removing the bandage and observing the underlying skin for the development of sores, inflammation, infection, and skin breakdown.  Petitioner's staff manifestly failed to do that over a period of about two days.  Not only did the staff change Resident 1's bandage only once during this period, but it failed to make any observations of the condition of the underlying skin.

Petitioner argues that it should not be held liable for violating 42 C.F.R.

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§ 483.25(b)(1) because, it contends, the wound manifested by Resident 1 after two days was not a pressure ulcer.  To that end, Petitioner offers Mr. Linhart's testimony.  See P. Ex. 1.

I find the question of whether the resident developed a pressure ulcer versus some other type of wound to be irrelevant.  Petitioner was obligated to protect Resident 1 against the development of a pressure ulcer whether or not the resident actually developed one.  I would find Petitioner to be derelict even if the resident's skin had been completely intact after the bandage was removed on January 21, 2019.

Petitioner's duty was to protect Resident 1's skin consistent with professional practice standards.  Those standards required Petitioner's staff to remove the resident's bandage once per eight-hour shift and to carefully observe the condition of the underlying skin.  Petitioner's staff failed completely to discharge this duty.  It matters not whether the resident developed a pressure ulcer.  The duty to protect exists independently of the results.

CMS imposed a civil money penalty of $725 for each day of a period beginning on February 14, 2019 and ending on March 28, 2019, as a remedy for Petitioner's noncompliance.  Petitioner asserts that no penalty should be imposed because, it argues, it complied with participation requirements.  I have addressed Petitioner's compliance argument.

The $725 daily penalty amount is a small fraction of the maximum penalty that CMS might have imposed for Petitioner's noncompliance.  The CMP amounts available to CMS at the time of Petitioner's noncompliance, at the non-immediate jeopardy level, ranged from $107 to $6,418 per day.  45 C.F.R. § 102.3 (2019).  I find that the penalty is justified by the seriousness of the noncompliance.

I find the penalty amount to be reasonable, given the seriousness of Petitioner's  noncompliance.  Although I have held it to be irrelevant for purposes of assessing compliance whether dereliction such as that committed by Petitioner's staff actually caused Resident 1 to sustain a pressure ulcer, it is not irrelevant to consider the potential for harm resulting from the staff's dereliction in deciding whether the penalty determination is reasonable.  Here, the potential for harm was substantial and the noncompliance quite serious because Petitioner's staff left itself clueless as to what might be happening underneath Resident 1's bandage.

Resident 1 was a resident who was prone to developing pressure ulcers.  P. Ex. 1 ¶ 5.  She had a history of such ulcers.  Id.  Thus, Petitioner's staff knew or should have known that this resident was at a high risk for developing ulcers.  However, in treating the resident's hand, it ignored that risk for a period of two days.  That left the resident, vulnerable as she was, in potential harm's way.

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CMS determined to end the assessment of the penalty when it found that Petitioner had attained compliance with participation requirements.  Petitioner has not offered evidence showing that it attained compliance at an earlier date than that which CMS determined.