The Rowland, DAB CR6496 (2024)

DECISION

The Rowland (Petitioner or facility) is a skilled nursing facility located in Covina, California, that participates in the Medicare program.  On February 2, 2021, Petitioner was notified by the Centers for Medicare & Medicaid Services (CMS) that it was not in compliance with participation requirements following a complaint survey completed on October 13, 2020.  CMS Exhibit (Ex.) 2. 

The facility was cited at federal tag F686 for noncompliance with 42 C.F.R. § 483.25(b)(1)(i)(ii) (Treatment/Services to Prevent/Heal Pressure Ulcers) at scope and severity level “L,” and federal tag F760 for noncompliance with 42 C.F.R. § 483.45(f)(2) (Residents are Free of Significant Medication Error) at scope and severity level “K.”  CMS found situations of immediate jeopardy to resident health and safety from September 5, 2020 through September 10, 2020.  A civil money penalty (CMP) of $11,285.00 per day was imposed for the period from September 5, 2020 through September 10, 2020, for a subtotal of $67,710.00 and a CMP of $225.00 per day was imposed for the period from September 11, 2020 through November 17, 2020, for a subtotal of $15,300.00.  The total CMP was $83,010.00.¹ Id. at 1-2.  Petitioner here 

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challenges those determinations and filed a Request for Hearing (RH) on April 2, 2021. For the reasons set forth below, based on the written record, I find that the facility was not in substantial compliance with the regulatory requirements of 42 C.F.R. § 483.25(b)(1) and 42 C.F.R. § 483.45(f)(2); CMS’s determination of immediate jeopardy was not clearly erroneous; and the CMP of $83,010.00 is reasonable.  

I. Background

The Social Security Act (Act) sets forth requirements for nursing facility participation in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing the statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance with program participation requirements.  Act § 1864(a); 42 C.F.R. § 488.20. The regulations require that each facility be surveyed once every twelve months, and more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.  

In this case, surveyors from the California Department of Public Heath (CDPH) completed an investigation of two complaints during an abbreviated standard survey at The Rowland on October 13, 2020 and determined that the facility was not in substantial compliance with federal requirements for nursing homes participating in the Medicare and Medicaid programs.  Specifically, CMS found that the facility did not meet the federal requirements of 42 C.F.R. § 483.25(b)(1) at a scope and severity level “L”² and did not meet the federal requirements of 42 C.F.R. § 483.45(f)(2) at a scope and severity level “K” and imposed the above-mentioned CMP.  Petitioner’s timely Request for Hearing brings the matter before me for adjudication.  

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On April 6, 2021, Judge Leslie Rogall issued a Standing Pre-Hearing Order (PH Order), setting forth pre-hearing procedures.³  Included in that PH Order was a directive to each party to include in its pre-hearing exchange any objection it had to any of the proposed exhibits or witnesses of the other party and to affirmatively request cross-examination of any proposed witnesses.  The PH Order also stated that an in-person hearing would be necessary only if a party requested to cross-examine the opposing party’s proposed witness.  PH Order at 9. 

In accordance with the PH Order, CMS filed a pre-hearing brief (CMS Br.) and 57 proposed exhibits, including the written direct testimony of five witnesses.  Petitioner filed a pre-hearing brief (P. Br.) and five proposed exhibits, including the written direct testimony of one witness. 

No objections to the proposed exhibits or witnesses were received.  As a result, I admit CMS Exhibits (Exs.) 1-57 and Petitioner’s Exhibits (P. Exs.) 1-5 into the record.  In addition, neither party affirmatively requested cross-examination of the opposing party’s witnesses.  Accordingly, a hearing for the purpose of cross-examination of a witness is unnecessary and the decision will be based on the written record. 

II. Issues

The issues before me are:  

• (1)    whether the facility was in substantial compliance with 42 C.F.R. § 483.25(b)(1) and 42 C.F.R. § 483.45(f)(2);
• (2)    if the facility was not in substantial compliance, whether CMS’s determination of immediate jeopardy was clearly erroneous; and
• (3)    if the facility was not in substantial compliance, whether the CMP totaling $83,010.00 is reasonable. 

It is also necessary to identify the issues that are not before me.  Following the survey, CDPH identified noncompliance with numerous regulatory provisions, including:  

• 42 C.F.R. §§ 483.10(e)(3) (Reasonable Accommodations/Needs/Preferences); 483.24(a)(2) (ADL Care Provided for Dependent Residents);
• 483.25(g)(1)-(3) (Nutrition/Hydration Status Maintenance);
• 483.35(a)(1)-(2) (Sufficient Nursing Staff);
• 483.35(b)(1)-(3) (RN 8 Hrs/7 days/Wk Full Time DON); and 
• 483.45(a)(b)(1)-(3) (Pharmacy Srvcs/Procedures/Pharmacist/Records).    

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CMS Ex. 1.  However, CMS imposed CMPs only for the noncompliance with 42 C.F.R. §§ 483.25(b)(1) and 493.45(f)(2).  CMS Ex. 2 at 1-2.  As a result, the findings of noncompliance with the remaining regulatory provisions are not reviewable.  A facility may challenge a finding of noncompliance for which CMS imposes one of the penalties specified in 42 C.F.R. § 488.406.  42 C.F.R. § 498.3(b)(13); see 42 C.F.R. § 498.3(a).  A facility has no right to a hearing unless CMS imposes one of the specified remedies.  The remedy, not the citation of a deficiency, triggers the right to a hearing.  Lutheran Home – Caledonia, DAB No. 1753 (2000). 

III. Discussion

• A. Petitioner was not in substantial compliance with the requirements of 42 C.F.R. § 483.25(b)(1).⁴

Under the statute and the “quality of care” regulation, the facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the resident’s comprehensive person-centered care plan, and the resident’s choices.  Act § 1819(b); 42 C.F.R. § 483.25(b).  The issue to be resolved here is whether Petitioner ensured that its residents received care, consistent with professional standards of practice, to prevent pressure ulcers, as required by 42 C.F.R. § 483.25(b)(1)(i)(ii).  The relevant section of that regulation provides that:  

Based on the comprehensive assessment of a resident, the facility must ensure that—

• (i)    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; and
• (ii)    A resident with pressure ulcers receives necessary treatment and services, consistent with professional standards of practice, to promote healing, prevent infection and prevent new ulcers from developing.   

The Departmental Appeals Board (DAB) has explained that, “[t]o be in substantial compliance, a SNF must ensure, among other requirements, that a resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable .  .  .  .”  The Harborage, DAB No. 2905 at 1-2 (2018).⁵  The Board has also held that a prima facie case of 

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noncompliance exists when the evidence establishes that a nursing home resident having no pressure sores on admission develops a pressure sore in the facility, and the burden then shifts to the facility to establish that the pressure sore was clinically unavoidable.  Koester Pavilion, DAB No. 1750 at 34 (2000).  The Board further indicated that evidence that a resident developed a pressure sore while under a facility’s care is enough to show a deficiency in the absence of clinical evidence from the facility proving such negative outcomes to have been clinically unavoidable.  Woodland Village Nursing Ctr., DAB No. 2172 at 13 (2008). 

There are few facts in dispute in this case, including the situation at the facility at the time of the survey.  According to the Declaration of Anthony Kalomas, the facility Administrator, there was a surge of COVID-19 in September 2020 that was spreading through nursing facilities.  He indicated that the Director of Nursing (DON) and other staff members had COVID-19 during that time, and it was necessary to seek contract nursing services.  P. Ex. 5 at 2.  Mr. Kalomas stated that the residents cited in the survey were in the “Red Zone” where the COVID-19 patients were located and it was necessary to rely on registry staff for their care on a short-term basis.  Id. at 3. 

I completely accept the Administrator’s explanation for the use of registry or contract staff at that time.  The difficulties arose, however, in the way those staff members were utilized.  According to Surveyor Elizabeth Codero, R.N.: 

Rowland was using registry staff to care for residents in the COVID unit because its own staff was either unable or unwilling to work in the COVID unit (Red Zone).  But The Rowland failed to ensure that the registry staff knew the residents’ care needs and had access to the information and resources needed to provide appropriate care.  The staff did not know which residents needed skin care and wound treatments.  The Rowland had failed to give the registry staff access to the residents’ treatment records housed in the electronic medical records. 

CMS Ex. 26 at 3, ¶11. 

Surveyor Codero further indicated that “most, if not all, nursing home residents are at risk of pressure injuries because they have one or more risk factors:  fragile skin, immobility, incontinence, poor nutrition and hydration, and/or medical conditions affecting blood flow.”  Id. at 1, ¶ 5.  

The record does not support a conclusion that the residents at the facility received care consistent with professional standards of practice to prevent pressure ulcers.  In reviewing resident records, a troubling pattern is observed.  The records of the residents discussed here reflect variations on a theme:  at the time of the survey, the facility did not 

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provide the treatment or medication ordered by a physician for an individual at risk of pressure ulcers.  Some very concerning examples of this follow. 

1. a. Resident #2

Resident #2 (R#2) was readmitted to the facility on April 18, 2020 with diagnoses that included a history of cardiovascular accident.  CMS Ex. 5 at 1-2.  In the Minimum Data Set (MDS) assessment, he was noted to need extensive assistance with bed mobility, transfer, dressing, and hygiene.  Id. at 14.  He was determined to be at risk of developing pressure ulcers, but had no unhealed ulcers at the time of an assessment on May 26, 2020.  Id. at 20.  His physician entered an order on April 18, 2020 for Calmoseptine and A&D ointment to the sacrococcyx once daily, for skin maintenance.  Id. at 6.  On September 5, 2020, during the survey, R# 2 was observed to have redness in the sacrococcygeal area and a healed right upper buttock scar.  Id. at 7.  A review of R#2’s Electronic Treatment Administration Record (ETAR) for the months of August and September 2020, and a concurrent interview with Licensed Vocational Nurse 1 (LVN1) on September 9, 2020, demonstrated that the resident did not receive the skin treatment ordered by his physician on August 20, 2020, August 22, 2020, and from August 24, 2020 to September 7, 2020.  Id. at 29, 30; CMS Ex. 1 at 14.  By the time of a wound consultation on September 10, 2020, R#2 was observed to have a Stage 2 pressure injury on the left buttocks measuring 0.7 centimeters (cm) by 1.5 cm and a deep tissue injury, which was reported to be a persistent non-blanchable deep red, purple area on the right buttock.  CMS Ex. 5 at 35.  

1. b. Resident #6

Resident #6 (R#6) was readmitted to the facility on January 20, 2020 with diagnoses that included Alzheimer’s disease.  CMS Ex. 8 at 1-2.  In the MDS assessment, she was noted to be totally dependent on staff assistance for bed mobility, transfers, dressing, eating, toilet use, and personal hygiene.  Id. at 19.  She was determined to be at risk of developing pressure injuries.  Id. at 24.  Her physician entered an order on July 6, 2020 for the application of a barrier cream to coccyx redness daily.  Id. at 8.  During the survey on September 5, 2020, R#6 was observed to have a small skin tear on the left hand and a pressure injury on the back.  CMS Ex. 1 at 15.  The Registry RN reported he did not conduct skin assessments or provide wound treatment because he did not have access to R#6’s ETAR.  A review of R#6’s ETAR for the months of August and September 2020 indicated she did not receive the physician ordered barrier cream to the coccyx from August 27, 2020 through September 9, 2020.  CMS Ex. 8 at 25, 32, 36, 38.  By the time of a wound consultation on September 10, 2020, R#6 was observed to have a sacrococcyx stage 2 pressure ulcer and a skin tear to the left forearm.  CMS Ex. 8 at 43. 

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1. c. Resident #8

Resident #8 (R#8) was readmitted to the facility on January 17, 2019 with diagnoses of hypertension, dementia, and diabetes mellitus.  CMS Ex. 10 at 1-2.  In the MDS assessment, she was noted to be totally dependent on staff assistance for bed mobility, transfers, dressing, toilet use, and personal hygiene.  Id. at 6.  She was determined to be at risk for developing pressure injuries.  Id. at 8.  Her physician entered an order on August 10, 2020 for Calmoseptine to the Moisture-Associated Skin Damage (MASD), daily.  Id. at 11. 

According to the surveyor’s note, on September 5, 2020, R#8 was observed to have a pressure injury on her buttocks. CMS Ex. 1 at 17; CMS Ex. 22 at 14.  The surveyor indicated the Registry nurse present stated it was his first day working at the facility and he did not have access to the facility’s electronic treatment record.  CMS Ex. 1 at 17.  He reported that, as a result, he was not familiar with R#8’s wounds and no treatment was being done.  The surveyor stated R#8 appeared to have “a Stage 3, 4 and an unstageable pressure injuries to the sacro/buttocks area.”⁶  CMS Ex. 24 at 6.  A review of R#8’s ETAR indicated that she did not receive the wound treatment ordered by her physician from August 21, 2020 through September 5, 2020.  CMS Ex. 10 at 11-12. 

1. d. Resident #15

Resident #15 (R#15) was readmitted to the facility on August 3, 2020 with diagnoses that included hypertension, functional quadriplegia, and history of cerebrovascular accident.  CMS Ex. 17 at 1-2.  In the MDS assessment dated July 23, 2020, she was noted to require extensive staff assistance with bed mobility, dressing, and personal hygiene.  Id. at 13.  She was determined to be at risk for pressure injuries and an existing unhealed stage 3 pressure ulcer was reported at that time.⁷ Id. at 20.  While there were no physician’s orders for skin treatment, the MDS indicated that turning, repositioning, pressure ulcer care, and application of nonsurgical dressings and ointments were needed.  Id. at 21.  During the survey on September 5, 2020, the surveyor noted that R#15 began to cry and indicated that she felt the staff did not care and had forgotten about the residents.  CMS Ex. 1 at 7.  She stated it took the nurses more than 40 minutes to answer her call light and to change her adult diaper, leaving her wet and soiled.  The surveyor observed a stage 2 pressure injury to the right buttock with bowel movement in that area was well.  Id. at 19.  The RN that was present at that time indicated that he did not have access to the full electronic system, including treatment orders or assessments.    CMS Ex. 24 at 5-6.  

1. e. Resident #13

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Resident #13 (R#13) was readmitted to the facility with diagnoses that included dementia and history of stroke.  CMS Ex. 15 at 19-20.  The MDS assessment indicated he was totally dependent on staff assistance for bed mobility, transfers, dressing, eating, toilet use, and personal hygiene.  Id. at 37.  He was determined to be at risk of developing pressure injuries.  Id. at 42.  On May 25, 2020, his physician entered an order to clean the right and left buttock MASD with soap and water and apply Zinc Oxide daily.  Id. at 26.  A review of R#13’s ETAR indicated he did not receive the skin treatment ordered by his physician on August 28, 2020, August 29, 2020, and from September 5, 2020 through September 7, 2020.  Id. at 46, 49.  A Nursing Progress Note dated September 8, 2020 noted Stage 3 pressure ulcers in the upper buttocks and bilateral sacral area.  Id. at 17. 

1. f. Resident #5

Resident #5 (R#5) was readmitted to the facility on August 23, 2020 with diagnoses of diabetes and COVID-19.  CMS Ex. 7 at 1-2.  In the MDS, she was assessed as needing extensive assistance with transfers, toilet use, and personal hygiene.  Id. at 14.  The record noted a history of a healed ulcer in the right buttock.  Id. at 29-31.  On August 23, 2020, her physician ordered A&D ointment to the left heel, Zinc Oxide to the whole buttocks area for skin maintenance and prevention of a pressure injury.  Id. at 22.  A review of her ETAR during the survey indicated R#5 did not receive the A&D ointment or the zinc oxide from August 23, 2020 through August 31, 2020.  Id. at 23.  Resident 5 also did not receive the Zinc Oxide treatment on September 21, 2020; and did not receive the A&D ointment from September 1, 2020 through September 7, 2020, and again from September 9, 2020 through September 13. 2020.   Id. at 27. 

1. g. Resident #7

Resident #7 (R#7) was readmitted to the facility on September 4, 2020 with diagnoses of metabolic encephalopathy and diabetes mellitus.  CMS Ex. 9 at 1-2.  On that date, physical examination revealed redness to the bilateral buttocks.  Id. at 3.  An earlier MDS dated May 10, 2020 noted severe impairment in cognition and the need for extensive assistance with bed mobility and transfers, and total dependence with dressing, toilet use, and personal hygiene.  Id. at 13.  R#7 was determined to be at risk of developing pressure injuries.  Id. at 17.  On September 4, 2020, her physician ordered daily administration of a skin barrier cream to the whole buttocks area for skin maintenance and for the prevention of development of pressure injury.  Id. at 6.  A review of the ETAR indicated R#7 did not receive skin barrier cream to the buttocks from September 4, 2020 through September 7, 2020.  Id. at 34.  At the time of a wound examination on September 10, 2020, she had developed MASD.  Id. at 38. 

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1. h. Resident #9

Resident #9 (R#9) was readmitted to the facility on August 19, 2020, with diagnoses that included cellulitis of both lower extremities.  CMS Ex. 11 at 1-2.  An MDS completed on May 16, 2020 indicated she had severe impairment in cognition and required limited assistance from staff for transfer and toilet use and required extensive assistance from staff for dressing and personal hygiene.  Id. at 10.  She was determined to be at risk of developing pressure injuries.  Id.  In a Progress Note dated August 19, 2020, a Stage I pressure ulcer on the right heel and a pressure ulcer to the midback were observed.  Id. at 3.  On that date, her physician ordered application of hydrogel to the left heel and mid-back and application of Zinc Oxide to the right heel Stage I pressure injury.  Id. at 25.  A review of R#9’s ETAR indicated she did not receive the ordered treatments on August 28, 2020, August 29, 2020, September 1, 2020 through September 7, 2020 and September 9, 2020 through September 10, 2020.  Id. at. 28-31. 

1. i. Resident #11

The records for Resident #11 (R#11) are confusing, incomplete, and inconsistent with the statements in the SOD regarding this resident.  CMS Exs. 13, 1.  However, what is clear from the existing record, including the Care Plan, is that R#11 was at risk for skin breakdown because of incontinence.  CMS Ex. 11 at 4.  His physician entered an order for a barrier cream to be applied to the buttocks daily for skin maintenance.  Id. at 5. During the survey on September 5, 2020, he was observed by the surveyor to be sitting in bed, complaining of burning in the private area.  CMS Ex. 1 at 24.  R#11 complained that he had waited 30 minutes for the staff to assist and change his disposable brief and he could not remember the last time he received the treatment to his buttocks.  While a certified nurse aide (CNA) was assisting with the changing of his briefs, the surveyor observed R#11’s brief was full of brown bowel movement covering the entire buttocks, genital areas and groin area.⁸  His buttocks, genital area, and groin area were bright red in color.  CMS Ex. 1 at 24. 

While the record is not clear as to if or when R#11 had received the barrier cream treatment in August and September, the surveyor indicated that LVN 1 stated that R#11’s ETAR did not demonstrate he received this treatment from August 26, 2020 through September 5, 2020.  CMS Ex. 1 at 24.  Other records indicate a change in physician orders on September 2, 2020 and entries showing an X, which was defined as “not to be administered/Future date.”  CMS Ex. 13 at 5, 6, 8.  What is clear is that a new physician’s 

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order was entered on September 12, 2020 to cleanse the pressure ulcer in the sacro-coccyx area, pat dry, and apply hydrogel, indicating that R#11 did develop a pressure ulcer.  Id. at 6. 

This pattern continues with Resident #s 10, 12, and 14.  A physician enters an order for treatment for a resident at risk for pressure ulcers, but this treatment is not provided by the facility.  See CMS Ex. 12 at 11, 15, 24-26; CMS Ex. 14 at 13, 15, 35, 36, 39; CMS Ex. 16 at 17, 8, 22, and 26.  All told, a total of 12 out of 12 surveyed residents did not receive prescribed medication or treatment to address the assessed risk of pressure ulcers.  CMS Ex. 26 at 2, ¶ 8.  

As noted above, Petitioner does not directly dispute the above facts.  In its brief, Petitioner argues that: 

[s]kin assessments were performed and treatments provided.  However, due to staffing issues, there were delays in assessing and treating residents for some pressure injuries.  At no point were injuries allowed to progress into major wounds or to be become infected.  All pressure injuries were provided appropriate treatment and healed without issue. 

Br. at 3-4. Petitioner’s argument ignores the regulatory requirements and the reality reflected in the above medical records. In fact, during the time of the survey, skin assessments and skin treatments were not provided to the residents described above.  As noted by the surveyor, numerous vocational nurses and registered nurses indicated they were unaware that certain residents had skin care treatment orders.  CMS Ex. 1 at 12, 13, 15.  Moreover, despite Petitioner’s argument that no pressure injury progressed into major wounds, a view of the photographs of R#8’s pressure ulcers would suggest otherwise.  CMS Ex. 10 at 39-40. 

Under the provisions of 42 C.F.R. § 483.25(b)(1), the facility must provide care “to prevent pressure ulcers” and to provide “necessary treatment and services” to promote healing and prevent infection in existing ulcers.  The above record documents that Petitioner was not in substantial compliance with this regulation. 

1. B. Petitioner was not in substantial compliance with the requirements of 42 C.F.R. §45(f)(2).

Under the provisions of 42 C.F.R. § 483.45(f)(2), a facility must ensure that its residents are free of any significant medication errors.  CMS alleges that there were at least two residents of the facility that did not receive prescribed medications, resulting in a violation of this regulation.  CMS Br. at 6.  The record fully corroborates this contention. 

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Resident #1 (R#1) was readmitted to the facility on October 16, 2016 with diagnoses that included a seizure disorder and Parkinson’s Disease.  CMS Ex. 4 at 1-2.  His physician had ordered Divalproex (Depakote) to be administered three times a day and Levetiracetam (Keppra) to be administered twice a day.  Id. at 4.  During the survey on September 4, 2020 at 4:55 p.m., R#1 was observed to be yelling for help and asking for his medications in Spanish, indicating he needed his seizure medications because he felt that he was going to experience a seizure.  CMS Ex. 1 at 68.  On that same day at 7 p.m., he was observed to be having a seizure.  CMS Ex. 4 at 15; CMS Ex. 1 at 70.  He had a second seizure at 7:13 p.m.  CMS Ex. 4 at 16; CMS Ex. 1 at 70-71.⁹  He was then transferred to the Emergency Department for evaluation of the seizures.  CMS Ex. 4 at 71.¹⁰ 

A review of R#1’s EMAR for the month of August 2020 indicated that from August 1, 2020 through August 31, 2020, 73 out of 93 doses of Depakote were marked as not administered.  CMS Ex. 4 at 25.  The EMAR for September 2020 indicated that from September 1, 2020 through September 4, 2020, 9 out of 12 doses of Depakote were marked as not administered and the remaining 3 out of 12 were marked as not recorded as administered.  CMS Ex. 4 at 34, 43.  The surveyor reported that on September 4, 2020, she observed that the Depakote bubble packs containing R#1’s medications were not punched out for the 9 a.m. medication while the 1 p.m. and 5 p.m. medications were punched out, but not signed in as administered in the EMAR.  CMS Ex. 1 at 71. 

A similar problem with medication administration was experienced by Resident (R#2).¹¹ She was admitted to the facility on March 10, 2020, with diagnoses that included chronic kidney disease, Stage 5, requiring dialysis, deep vein thrombosis in the right upper arm, and anemia.  CMS Ex. 5 at 40.  On the day of admission, an order was entered by her 

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physician for Hydrocodone-Acetaminophen (Lorcet/Norco), one tablet every 6 hours, as needed for severe pain.  CMS Ex. 5 at 43.  On March 14, 2020, an order was entered to monitor pain three times a day.  CMS Ex. 5 at 79. 

During the survey on September 4, 2020, R#2 was observed sitting in a wheelchair outside her room, screaming and crying because she needed her pain medication.  She reported to the surveyor that she had been asking for her pain medication all day but the nurses ignored her.  CMS Ex. 1 at 73. 

A review of R#2’s EMAR indicates that, on September 4, 2020, she was not monitored for pain and the as needed pain medication prescribed for her was listed as not recorded as administered.  CMS Ex. 5 at 79, 78. 

The surveyor indicated in her declaration that when she investigated why R#2 had not received her medications on that date, one nurse told her that R#2 was not in the facility’s EMAR system and another nurse said that her medication was not available in the medication cart.  CMS Ex. 25 at 4, ¶14; CMS Ex. 1 at 74. 

Petitioner attributes these failure to “an unintended oversight caused by the staffing shortfall” secondary to the COVID-19 pandemic.  P. Br. at 5.  It asserts that, because of the staffing issues resulting from the pandemic, it was “forced to rely on available registry nursing staff who were not familiar with The Rowland or its residents.”  Id. at 4.  The problem with this rationale for the egregious failures noted above is that one of the reasons the registry staff were not familiar with the residents is that they were not given access to the EMAR system and could not access resident electronic medical records, as discussed above.  CMS Ex. 1 at 12, 15, 17.  Moreover, it is difficult to point to registry staff as the source of the violations when prescribed medications were not available to be administered, as in the case of R#2.  CMS Ex. 1 at 74.  So, while I understand the staffing difficulties resulting from the COVID-19 pandemic, the failures in this case did not directly result from registry staff.  Given the above record, I find that Petitioner was not in substantial compliance with the provisions of 42 C.F.R. § 483.45(f)(2). 

1. C. CMS’s determination that Petitioner’s noncompliance posed immediate jeopardy to resident health and safety is not clearly erroneous.

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.  The regulation does not require that a resident actually be harmed.  Lakeport Skilled Nursing Center, DAB No. 2435 at 8 (2012).   CMS’s assessment and response to the facility's substantial noncompliance (which includes an immediate jeopardy finding) may not be disturbed unless it is "clearly erroneous."  42 C.F.R. § 498.60(c)(2).  The "clearly erroneous" standard imposes on facilities a heavy burden to show no immediate jeopardy, and the DAB has sustained determinations of immediate jeopardy where CMS presented 

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evidence "from which ‘[o]ne could reasonably conclude' that immediate jeopardy exists."  See, e.g., Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (quoting Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)).  In reviewing CMS's finding, I "must consider whether the totality of the allegations support the Agency's determination that [the SNF's] noncompliance ‘has caused, or [was] likely to cause, serious injury, harm, impairment, or death to a resident.'"  Rosewood Care Ctr. of Swansea v. Price, 868 F.3d 605, 618 (7th Cir. 2017) (emphasis omitted). 

Petitioner argues that “[n]one of the deficiencies identified in the October 13 survey placed residents in immediate danger and all were addressed and resolved by the time CDPH returned to inspect The Rowland on November 18.”  P. Br. at 5.  One wonders whether the residents of the facility would agree with the assessment that they were never in “immediate danger.”  I would suggest that R#8, who was observed to have a Stage II pressure ulcer which was graphically documented in CMS Ex. 10 at 39-40, R#11, whose irritated skin was covered with brown bowel movement, CMS Ex. 24 at 6, or R#1, who suffered two seizures because he was not given his medications, CMS Ex. 1 at 70-71, would strongly have disagreed with the characterization that they were never in immediate jeopardy. 

Petitioner bears the burden of proof to show clear error in the immediate jeopardy determination.  CMS Br. at 9; see 42 C.F.R. § 498.60(c)(2); Universal Health Care – King, DAB No. 2383 at 16 (2011), aff'd, Universal Healthcare/King v. Sebelius, 400 F. App'x 299 (4th Cir. 2012).  Given the evidence discussed extensively above, I find that Petitioner has not met that burden.  The record supports a finding that Petitioner’s noncompliance with 42 C.F.R. §§ 483.25(b)(1) and 483.45(f)(2) caused, and was likely to cause, serious injury or harm to its residents.  The failure to provide the care and treatment ordered by physicians to vulnerable older residents exposed those residents to great risks of harm.  As a result, I find that CMS’s determination that Petitioner’s noncompliance with 42 C.F.R. §§ 483.25(b)(1) and 483.45(f)(2) posed immediate jeopardy to resident health and safety was not clearly erroneous. 

1. D. The CMP totaling $83,010.00 is reasonable under relevant statutory and regulatory factors for determining the amount of CMPs. 

CMS imposed on Petitioner a CMP of $11,285.00 per day from September 5, 2020 through September 10, 2020 and a CMP of $225.00 per day from September 11, 2020 through November 17, 2020, for a total of $83,010.00.  CMS Ex. 2 at 2. 

When determining whether a CMP amount is appropriate, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility's history of noncompliance; 2) the facility's financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility's degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i-(h)(2)(B)(ii)(I).  The absence 

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of culpability is not a mitigating factor.  The factors specified in 42 C.F.R. § 488.404 include:  the scope and severity of the deficiency, the relationship of the deficiency to other deficiencies resulting in noncompliance, and the facility’s prior history of noncompliance in general and in relation to the cited deficiencies.  

Petitioner argues that earlier and subsequent surveys from the survey at issue here found the facility to be in substantial compliance and the imposed CMP was out of proportion to the deficiencies identified.  P. Br. at 6. 

In considering the regulatory factors, I would agree that, assuming Petitioner’s statement regarding the number of surveys without violations identified to be correct, the record does not reflect a concerning level of prior noncompliance on the part of The Rowland. However, as CMS noted, the CMP of $11,285 assessed is in the middle range for a per-day CMP for an immediate jeopardy finding ($6,808 to $22,320 per day) and $225.00 was in the lower range for that category ($112 to $6,695).  45 C.F.R. § 102.3, Table 1; CMS Br. at 8-9.  I concur with the analysis of CMS.  Even assuming the history of noncompliance on the part of The Rowland is not significant, the CMP assessed reflects that degree of noncompliance with the use of the lower range of possible penalties. I find the scope and severity of the deficiencies in this case to be high.  As discussed above, the number of residents who did not receive the treatment and medication ordered by their physicians reflects a systemwide failure with potential deadly consequences for facility residents. 

The Rowland has not provided any evidence relating to its financial condition. Given the evidence relating to the above regulatory factors, I conclude that the per-day CMPs amounts are reasonable. 

IV. Conclusion

I uphold CMS’s determination that Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.25(b)(1) and 483.45(f)(2), the determination of immediate jeopardy was not clearly erroneous, and the per-day CMP amounts of $11,285.00 and $225.00 were reasonable. 

Endnotes

¹  Although CMS initially imposed additional remedies of Denial of Payment for New Admissions and Mandatory Termination, these remedies did not go into effect because the facility achieved substantial compliance before the effective dates of the remedies.  CMS Ex. 2 at 2. 

²  Scope and severity levels are used by CMS and state survey agencies when selecting remedies.  The scope and severity level is designated by letters “A” through “L.”  CMS Pub. 100-7, State Operations Manual (SOM), chap. 7, § 7400.3.1 (Factors That Must be Considered When Selecting Remedies), “Assessment Factors Used to Determine the Seriousness of Deficiencies Matrix” (table) (Rev. 63, effective Nov. 16, 2018); see also 42 C.F.R. § 488.408.  A scope and severity level of “L” indicates widespread substantial noncompliance that causes immediate jeopardy.  A scope and severity level of “K” indicates a pattern of noncompliance that causes immediate jeopardy. 

³ This case was reassigned to me on May 9, 2024. 

⁴ My findings of fact and conclusions of law are set forth in bold and italic text.  

⁵  In its decision, the DAB cited 42 C.F.R. § 483.25(c), which contains language identical to 42 C.F.R. § 483.25(b)(1), the regulation in effect at the time of the survey which provided the basis for CMS’s determination of noncompliance. 

⁶ CMS Ex. 10 at 39-41 contains very graphic photos of these open pressure ulcers. 

⁷ The location of the existing pressure ulcer was not specified in the MDS. 

⁸  To add to the horror of this situation, the Surveyor indicated that the registry CNA was using wipes to clean the bowel movement off the resident and then throwing them on the floor.  She then used the same gloves with bowel movement on them to help turn the resident and touched the resident’s clean linens, while throwing the soiled linens on the floor.  CMS Ex. 24 at 6. 

⁹ There is a slight discrepancy in the record regarding the times of the seizures.  The Progress Note dated September 5, 2020 indicates the seizures occurred at 5 p.m. and 8 p.m.  CMS Ex. 4 at 16.  A Progress Note dated September 4, 2020 indicated the seizure activity occurred at 7:30.  CMS Ex. 4 at 15.  It is not necessary to determine the exact time of the seizures since it is well established that R#1 experienced two seizures on the evening of September 4, 2020. 

¹⁰ R#1 died during the hospitalization from complications of a urinary tract infection, sepsis, renal failure, and COVID-19.  CMS Ex. 4 at 122.  

¹¹ There are two R#2s referred to in this record and, unfortunately, their records are co-mingled.  I presume that this is due to the fact that there were four surveyors, each focusing on a different area and completing different reports.  Because the SOD refers to both R#2s, I will continue to use those identifications. However, I will note that the records of the R#2, who experienced problems receiving her prescribed medication, begin in CMS Ex. 5 at 40.