Complete Care at Arbors, CR6510 (2024)

DECISION

Following a survey completed on January 27, 2021 by the New Jersey State Department of Health and Senior Services (state agency), the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner, Complete Care at Arbors (Petitioner or the facility), was not in substantial compliance with the following Medicare participation requirements: 42 C.F.R. § 483.12(a)(1) (Tag F600) (Free From Abuse and Neglect) at the immediate jeopardy level, 42 C.F.R. § 483.21(b)(1) (Tag F656) (Develop/implement Comprehensive Care Plan) at scope and severity level G, and 42 C.F.R. § 483.40(a)(1)(2) (Tag F741) (Sufficient/Competent Staff-Behavioral Health Needs).  As a result, CMS imposed two per-instance Civil Monetary Penalties (PICMPs); $20,780.00 for the immediate jeopardy violation of 42 C.F.R. § 483.12(a)(1); and $10,650.00 for the violation of 42 C.F.R. § 483.21(b)(1). 

For the reasons explained in this decision, I find that that CMS’s finding of noncompliance with 42 C.F.R. § 483.12(a)(1) was not clearly erroneous, and I find the related PICMP unreasonable for the reasons discussed below and reduce it to $7,000.  I also overturn CMS’s finding of noncompliance with 42 C.F.R. § 483.21(b)(1) and the related PICMP. 

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I.     Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in Tom’s River, New Jersey.  CMS Exhibit (Ex.) 1 at 1.  On January 27, 2021, the state agency completed a survey of Petitioner’s facility.  Id.  The state agency found that Petitioner was not in substantial compliance with three Medicare requirements: 

• 42 C.F.R. § 483.12 (Tag F600)¹ (Free From Abuse and Neglect), Scope and severity (S/S) level J (an isolated deficiency that involves immediate jeopardy to resident health or safety)²;  
• 42 C.F.R. § 483.21(b)(1) (Tag F656) (Develop/Implement Comprehensive Care Plan), S/S level G (an isolated deficiency that causes actual harm that does not amount to immediate jeopardy);
• 42 C.F.R. § 483.40(a)(1)(2) (Tag F741) (Sufficient/Competent Staff-Behavioral Health Needs), S/S level E (Pattern of deficiency with no actual harm with the potential for more than minimal harm).  

CMS Ex. 1. 

Petitioner returned to substantial compliance on March 3, 2021.  CMS Ex. 3.  

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On June 11, 2021, CMS issued an initial determination in which it informed Petitioner that the complaint survey completed at Petitioner’s facility on January 27, 2021, found that Petitioner was not in substantial compliance.  CMS Ex. 3.  CMS further imposed two PICMPs for the aforementioned deficiencies; $20,780.00 for the immediate jeopardy violation of 42 C.F.R. § 483.12(a)(1); and $10,650.00 for the violation of 42 C.F.R. § 483.21(b)(1).  Id.  CMS did not impose a remedy for Petitioner’s noncompliance with 42 C.F.R. § 483.40(a)(1)(2).  Id. 

On August 9, 2021, Petitioner requested a hearing to dispute CMS’s initial determination.  The Civil Remedies Division acknowledged receipt of the hearing request, assigned the case to me and issued my Standing Prehearing Order (SPO).  In accordance with the SPO, CMS filed a prehearing brief (CMS Br.), along with 14 exhibits (CMS Exs. 1-14).  Two of the exhibits (CMS Exs. 13 and 14) included written direct testimony of CMS’s witnesses.  Petitioner filed a prehearing exchange consisting of a prehearing brief (P. Br.), 15 exhibits (P. Exs. 1-15), of which four (P. Exs. 11-14) were written direct testimony of Petitioner’s witnesses.  Petitioner requested to cross examine both of CMS’s witnesses.  On February 7, 2022, the parties filed joint statements of fact and issues presented.  The parties also filed a joint settlement status update.  On the same day, CMS filed a Prehearing Reply brief.  

On June 23, 2022, a hearing was held and CMS’s witnesses, Rhonda Faust and Jody Nocks, and Petitioner’s witnesses, Jill Monahan, Dawn Schoephfer and Nelia Adaci, testified.  At the hearing, CMS’s Exs. 1-14 were admitted into evidence as well as Petitioner’s Exs. 1-12, 14-15.  On November 7, 2022, the second day of the hearing was held and Petitioner’s witness Noli Liangco testified.  Petitioner’s Ex. 13 was also admitted into evidence. 

On February 2, 2023, both parties filed their respective Post-Hearing Briefs (CMS PHB; P. PHB).  On March 6, 2023, both parties filed their respective Post-Hearing Reply Briefs (CMS Reply; P. Reply).  

II.     Issues

The issues in this case are: 

Whether Petitioner was in substantial compliance with the Medicare requirements at 42 C.F.R. § 483.12 and 42 C.F.R. § 483.21(b)(1);³  

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and

If Petitioner was not in substantial compliance, whether the PICMPs imposed on Petitioner are reasonable under the factors in 42 C.F.R. § 488.438(f).  

III.     Jurisdiction

I have jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13). 

IV.     Discussion

A. Applicable Legal Authority

The Act sets forth requirements for SNFs to participate in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3).  The Secretary’s regulations are found at 42 C.F.R. pts. 483 and 488.  

To participate in the Medicare program, a SNF must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  Id. 

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20.  The Act and its implementing regulations require that facilities be surveyed on average every twelve months, and more often if necessary to ensure that identified deficiencies are corrected. Act § 1819(g)(2)(A) (42 U.S.C. § 1395i-3(g)(2)(A)); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4) (42 U.S.C. § 1395i-3(g)(4)). 

The regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance with Medicare requirements.  42 C.F.R. § 488.406.  Among other remedies, CMS is authorized to impose a per-day CMP for the number of days a facility is not in substantial compliance or a PICMP for each instance of the facility’s noncompliance.  42 C.F.R. § 488.430(a).  In this case, CMS imposed two PICMPs.  The regulations specify that PICMPs have a single range between $2,233 and $22,320

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regardless of the associated scope and severity of the noncompliance.  42 C.F.R. § 488.408(d)(1)(iv); 45 C.F.R. § 102.3 (Table).⁴  

If CMS imposes a remedy based on a noncompliance determination, such as a PICMP, the facility may request a hearing before an administrative law judge (ALJ) to determine whether there was a basis for the deficiency findings that led to the imposition of the remedy and whether the CMP imposed was reasonable.  Act §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  However, the facility may not appeal CMS’s choice of remedies or the factors CMS considered in selecting remedies.  42 C.F.R. § 488.408(g)(2). 

A facility may only challenge CMS’s determination as to the scope and severity of noncompliance if a successful challenge would affect the range of the CMP that may be imposed, or if CMS has made a finding of substandard quality of care that results in the loss of approval of a facility’s Nurse Aide Training and Competency Evaluation Programs (NATCEP).  42 C.F.R. § 498.3(b)(14), (d)(10)(i).  The CMS determination as to the level of noncompliance, including the finding of immediate jeopardy “must be upheld unless it is clearly erroneous.”  42 C.F.R. § 498.60(c)(2); Woodstock Care Ctr., DAB No. 1726 at 9, 39 (2000), aff’d, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003). 

B. Findings of Fact, Conclusions of Law and Analysis

Facts

Resident 2 was an 85-year-old male who was admitted to Petitioner’s facility on November 12, 2020 for rehabilitation and wound care.  CMS Ex. 4 at 1-2, 72, 83.  Resident 2 was admitted with a diagnosis of major depressive disorder for which he was prescribed 15mg of Remeron  to be administered once per day.  Id at 42.  At the time of admission and throughout his stay at Petitioner's facility, the goal for Resident 2 was discharge to a long-term care facility and not to home.  P. Ex 13 at 2, ¶ 10.  

On November 19, 2020, Petitioner conducted a Resident Mood Interview with Resident 2 in which he reported experiencing the following symptoms: feeling little interest or pleasure in doing things; feeling down, depressed or hopeless; and feeling bad about himself, or that he was a failure or had let himself or his family down nearly every day. 

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CMS Ex. 4 at 114.  He also reported feeling tired and having little energy most days.  Id.  Resident 2 further reported that he had difficulty falling or staying asleep or sleeping too much.  Id. 

On November 20, 2020, a consulting nurse practitioner with Mid Atlantic Geriatric Association, Patricia Brogan, evaluated Resident 2’s depression.  CMS Ex. 4 at 54-63.  N.P. Brogan noted that Resident 2 was tearful at times.  Id.  N.P. Brogan reported that Resident 2’s depression was exacerbated by being separated from his wife.  Id.  Per the assessment, Resident 2 showed signs and symptoms of depression.  Id.  N.P. Brogan recommended Resident 2 continue using Remeron, attend psychotherapy and have more frequent video calls with his wife.  Id.  A November 27, 2020 Progress Note stated: “Pat Brogan, NP . . . recommendations made and approved, continue Remeron 15 mg QHS, provide psychotherapy, arrange frequent zoom visits with wife.”  Id. at 49.  N.P. Brogan reported that Petitioner had a responsibility to ensure that her recommendations were followed.  CMS Ex. 7 at 25-26.  It is undisputed that Petitioner never ordered or provided psychotherapy services to Resident 2.  Tr. 1 ⁵ at 165, 241, 259-63. 

On November 24, 2020, Resident 2 refused to get out of bed to see his treating physician.  CMS Ex. 4 at 50. 

Resident 2 refused to take any of his oral medications on December 4 and 5, 2020.  CMS Ex. 4 at 41, 43, 72.  Resident 2’s treating physician was notified of his refusals on December 4, but not December 5.  Id. at 41, 43.  However, during this time, Resident 2 still accepted IV medication.  CMS Ex. 4 at 41. 

In addition, on December 4, 2020, Petitioner refused his dinner, but ultimately ate a substitute sandwich, which was reported to Resident 2’s treating physician.  Id. at 35, 43; CMS Ex. 7 at 27.  Surveyor notes state that Resident 2 refused his dinner on December 5, 2020.  CMS Ex. 7 at 24.  However, undisputed testimony demonstrated that Resident 2 again accepted and ate a substitute sandwich for dinner that night.  P Ex. 13 at 7; Tr. 2 at 33.  

At 11:40pm on December 5, 2020, LPN 1 observed Resident 2 to be upset and “broken hearted” following a phone call with his wife in which she informed Resident 2 that he needed to remain at Petitioner’s facility and could not come home.  P. Ex. 13 at 4-5.  LPN 1 reported and testified that Resident 2 indicated that his wife did not want him home and said, “I’m not sure if I want to live anymore.”  CMS Ex. 4 at 40; see also P. Ex. 13 at 5-6; Tr. 2 at 49.  LPN 1 consoled Resident 2 for approximately five minutes stating that they could talk through everything more and that they could call his family the next day to

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clarify any misunderstanding.  CMS Ex. 1 at 4; P. Ex. 13 at 6; Tr. 2 at 43.  Resident 2 then appeared to be calm and stated that he “wanted to get some sleep.”  P. Ex. 13 at 6.  LPN 1 recalled a conversation that had occurred a few days earlier when Resident 2 had stated he knew he would live at Petitioner’s facility now and that he had made his peace with it.  Id.  LPN 1 left Resident 2 and turned out the lights to his room so he could rest.  Id.  

At around 11:57pm on December 5, 2020, approximately 12 minutes after LPN 1 left Resident 2 with eyes closed to sleep, LPN 1 and a CNA went to check on Resident 2 and found Resident 2 on both knees on the floor with the right side of his body leaning against the bed.  CMS Ex. 4 at 40.  When LPN 1 went to assist Resident 2, he discovered that Resident 2’s call bell cord was wrapped around his neck.  Id.  LPN 1 removed the cord and placed Resident 2 on his back on the floor.  Id.  No pulse or respiration was observed.  Id.  No attempt to resuscitate Resident 2 was made due to his advanced directives.  Id.  The Director of Nursing was immediately notified.  Id. 

Analysis

1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12 (Tag F600) (Free From Abuse and Neglect), because the undisputed evidence demonstrates that Petitioner failed to implement psychotherapy to treat Resident 2’s depression as recommended by Petitioner’s mental health provider.  Petitioner was in substantial compliance with 42 C.F.R. § 483.12 with regard to all other alleged violations. 

CMS argues that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12 (Tag F600) (Free From Abuse and Neglect).  A facility commits neglect when it fails to “provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish or emotional distress.”  State Operations Manual (“SOM”), Appendix PP at 70.  It is the facility’s responsibility to ensure that each resident is provided the goods and services they require based on the resident’s care plan and assessments.  Id. at 82.  42 C.F.R. § 483.12(b)(1) further requires facilities to develop and implement policies and procedures that prohibit and prevent abuse and neglect.  Accordingly, a facility’s failure to follow its own policies and/or procedures may be evidence of a violation of 42 C.F.R. § 483.12. 

CMS argues that Petitioner violated 42 C.F.R. § 483.12 for the following reasons:  1) failure to provide psychotherapy to Resident 2 as recommended; 2) failure to investigate the seriousness of Resident 2’s alleged intent to self-harm; 3) failure to secure the resident’s environment after Resident 2’s alleged suicidal ideation; 4) failure to notify Resident 2’s physician of his depressive and suicidal symptoms and his alleged intent to self-harm; 5) failure to supervise Resident 2 until instructions were received from his treating physician; and 6) failure to properly train staff on caring for a resident who

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exhibited signs of depression and/or suicidal ideation.  CMS Br. at 5; CMS Post-Hearing Br. at 3.  Each of these alleged violations are addressed in turn.

a. Failure to provide psychotherapy as recommended.

A facility is in violation of 42 C.F.R. § 483.12 when it fails “to implement resident interventions, even when residents are assessed and interventions are identified in the care plan.”  SOM, Appendix PP at 85.  The SOM further instructs that: 

The failure to provide necessary care and services resulting in neglect may not only result in a negative physical outcome, but may also impact the psychosocial well-being of the resident, with outcomes such as mental anguish, feelings of despair, abandonment, and fear. 

Id. 

It is not disputed that Resident 2 was diagnosed with major depressive disorder upon his admission to Petitioner on November 12, 2020.  CMS Ex. 4 at 1-2.  It is also not disputed that, on November 20, 2020, psychotherapy was recommended for Resident 2 by a tertiary mental health provider brought in by Petitioner to evaluate and treat Resident 2’s depression and that her recommendations, including psychotherapy, were approved for Resident 2 on or before November 27, 2020.  CMS Ex. 4 at 49, 54-63.  Finally, it is not disputed that Petitioner never provided psychotherapy to Resident 2.  Tr. 1 at 165, 192-95, 259-63. 

Petitioner’s Depression – Clinical Protocol Policy, revised October 2019 (hereinafter the “Depression Policy”) states: 

With consultative support as needed, the physician will order appropriate non-pharmacologic and pharmacologic interventions, based on preceding [mental health] assessments. 

CMS Ex. 5 at 13.  

Based on the plain language of the regulation and related guidance from the SOM, I find that Petitioner’s failure to provide psychotherapy services to Resident 2 violated 42 C.F.R. § 483.12. 

Petitioner makes several arguments attempting to excuse its failure to provide psychotherapy services to Resident 2.  Specifically, Petitioner argues that Resident 2 underwent a Preadmission Screening and Resident Review (PASRR), which found that

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he did not suffer from a mental disorder that prevented him from being admitted to Petitioner.  P. Br. at 3; P. Post-Hearing Br. at 3; P. Post-Hearing Reply at 2.  However, the fact that Petitioner was found to have no mental disorders that prevented him from being admitted to Petitioner’s facility does not negate Petitioner’s duty to provide necessary services, including psychotherapy, to Resident 2.  Accordingly, I find this argument without merit. 

Petitioner also argues that, since the recommendation for psychotherapy was not a physician’s order, it was free to ignore it.  P. Br. at 12-14; P. Post-Hearing Br. at 20.  This argument also misses the mark.  Petitioner brought in an outside specialist to evaluate and treat Resident 2’s depression.  See Tr. 1 at 97-99.  Petitioner cannot simply fail to implement the recommendations of the professional it hired without explanation and argue that, since there was not ultimately a doctor’s order, Petitioner did not have an obligation to follow-up on the recommendation.  Petitioner failed to provide any evidence that the recommendation was brought to the attention of the physician in contravention of Petitioner’s Physician Notification Policy.  CMS Ex. 5 at 15; Tr. 1 at 163-165, 195.  Accordingly, I reject this argument as without merit. 

Finally, Petitioner argues that Resident 2 was seen by a social worker, which, it alleges, is much the same as psychotherapy.  P Br. at 14.  While it may be true that in New Jersey social workers are accredited as psychotherapists (P. Br. at 14; P. Ex. 7), there is no evidence or argument that the social worker actually provided psychotherapy services to Petitioner.  In this case, there is evidence in the record that the social worker also assessed Resident 2 as requiring psychological therapy.  See CMS Ex. 1 at 15.  Petitioner further argues that, since Resident 2 was being treated with physiatry and occupational therapy, he was being well cared for and that perhaps the nurse practitioner assigned to Resident 2 was performing her own analysis and therapy along with the social worker so that Resident 2 did not, therefore, require psychotherapy.  P. Post-Hearing Br. at 20.  The documentary and testimonial record however is devoid of evidence to support this purely speculative assertion as to why the recommended psychotherapy services were not ordered.  Further, there is ample evidence in the record that Resident 2 was otherwise well-cared for; however, receiving good care and other ordered physical/occupational therapy did not relieve Petitioner of its duty to follow-up on recommendations for psychotherapy of Resident 2.  As such, I find these arguments unpersuasive. 

Petitioner failed to provide psychotherapy services as recommended by the nurse practitioner to a resident diagnosed with major depressive disorder.  CMS Ex. 4 at 63.  Further, Petitioner has not offered any evidence that it considered the recommendation for psychotherapy and determined that psychotherapy services would not be provided, for example, due to Resident 2’s refusal or after consultation with another physician in conjunction with Resident 2.  Accordingly, I find that Petitioner violated its Depression Policy as it clearly failed to “order appropriate non-pharmacologic and pharmacologic

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interventions, based on [required mental health] assessments” in violation of 42 C.F.R. § 483.12. 

b. Alleged failures to investigate the seriousness of Resident 2’s intent to self-harm, secure the resident environment after Resident 2’s alleged suicidal ideation, and supervise Resident 2 until instructions were received from his treating physician.

CMS next argues that Petitioner’s staff neglected Resident 2 by failing to follow the facility’s Suicide Threats Policy.  CMS Br. at 13, 16.  Specifically, CMS argues that Resident 2’s statement, “I’m not sure if I want to live anymore,” (CMS Ex. 4 at 40; see also P. Ex. 13 at 5-6) is a statement of suicidal ideation that triggered Petitioner’s Suicide Threats Policy vis-à-vis Petitioner’s Depression – Clinical Protocol, and therefore, Petitioner’s response to Resident 2’s statement failed to meet the standard of care.  CMS Br. at 16.  The crux of the determination for substantial noncompliance with 42 C.F.R. § 483.12 on this basis is whether Resident 2’s statement ought to have been interpreted as a threat of suicide. 

While one may fall victim to hindsight bias when evaluating Resident 2’s statement knowing now that Resident 2 ultimately committed suicide, we must instead evaluate Resident 2’s statement from the position of future uncertainty – at the time the statement was spoken.  To uphold CMS’s finding of substantial noncompliance on this basis, I would have to find that Petitioner failed to meet the standard of care even if Resident 2 had not attempted or committed suicide.  Based on the record before me, and supported by expert testimony, I cannot conclude that the statement “I’m not sure if I want to live anymore” was a threat of suicide in light of the relevant facts and circumstances at the time the statement was made. 

Petitioner’s Suicide Threats Policy provides the following:

1. Staff shall report any resident threats of suicide immediately to the Nurse Supervisor/Charge Nurse. 

2. The Nurse Supervisor/Charge Nurse shall immediately assess the situation and shall notify the Charge Nurse/Supervisor and/or Director of Nursing Services of such threats. 

3. A staff member shall remain with the resident until the Nurse Supervisor/Charge Nurse arrives to evaluate the resident. 

4. After assessing the resident in more detail, the Nurse Supervisor/Charge Nurse shall notify the resident’s Attending Physician and responsible party, and shall seek further direction from the physician. 

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5. All nursing personnel and other staff involved in caring for the resident shall be informed of the suicide threat and instructed to report changes in the resident’s behavior immediately. 

6. As indicated, a psychiatric consultation or transfer for emergency psychiatric evaluation may be initiated. 

7. If the resident remains in the facility, staff will monitor the resident’s mood and behavior and update care plans accordingly, until a physician has determined that a risk of suicide does not appear to be present. 

8. Staff shall document details of the situation objectively in the resident’s medical record.  

CMS Ex. 5 at 16. 

CMS also introduced testimony regarding the standard of care once a resident threatens suicide, which generally aligns with Petitioner’s Suicide Threats Policy.  In the event of a suicidal threat, the facility was required to:  1) investigate/assess the situation to determine the seriousness of the threat; 2) secure the room and remove items that could be dangerous to a suicidal resident; 3) notify the resident physician; and 4) stay with the resident until provided further instructions from the physician.  Tr. 1 at 293-94. 

Here, LPN 1 – who was very familiar with Resident 2 since Resident 2’s admission – had not interpreted Resident 2’s statement as a threat of suicide, but rather as an expression of brief emotional upset that was noteworthy for future monitoring to ensure the psychosocial wellbeing of Resident 2.  P. Ex. 13; Tr. 2 at 45-46.  LPN 1’s conclusion was reasonable based on numerous factors.  First, an analysis of the plain meaning of Resident 2’s statement does not indicate that he was threatening suicide.  “I’m not sure if I want to live anymore,” taken literally, indicates an uncertainty about the desire to continue living and is not a threat to take action to end one’s own life. 

Second, the statement taken in context further supports communication of emotional upset and not a threat of suicide.  Resident 2 was eighty-five years old (CMS Ex. 4 at 1), had not lived at home for many months prior to admission to Petitioner’s facility (P. Ex. 13 at 2; CMS Ex. 4), and previously acknowledged to LPN 1 that he knew he would not be discharged home and had made peace with it.  P. Ex. 13 at 3, 6; Tr. 2 at 29-30.  Resident 2 had calmed down quickly after becoming upset from a phone call with his wife that maintained Resident 2 would not live with his wife anymore.  Resident 2 then indicated he wanted to sleep after LPN 1 comforted him and counselled him that he could communicate with his wife the next day.  P. Ex. 13 at 5, 6.  Additionally, at the time, Resident 2 was choosing to participate in treatment for, inter alia, pressure ulcers, MRSA, subacute osteomyelitis, cellulitis, depression, gait dysfunction, and ADL dysfunction.  CMS Ex. 4 at 40; P. Exs. 5, 6.  This is all further indication of Resident 2's

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overall interest in not only continuing to live, but to heal.  To this end, Petitioner provided evidence that before and during the call that upset him, Petitioner was receiving an intravenous antibiotic treatment that “takes patience and time” and would be inconsistent with someone considering ending their lives minutes later.  P. Ex. 13 at 5; Tr. 2 at 34, 49-50, and 52.  

Third, LPN 1 had conducted an admission assessment of Resident 2, known as the PHQ-9, approximately three weeks prior to the night in question.  CMS Ex. 4 at 22.  Resident 2 at that time specifically indicated that he did not have thoughts of harming himself or that he was better off dead.  Id.; P. Ex. 13 at 1-2.  The Level 1 PASRR was also negative upon admission less than three weeks prior to Resident 2’s suicide, which indicated that Resident 2 was neither a danger to himself nor others.  CMS Ex. 4 at 22-23.  In the Minimum Data Set (MDS) Petitioner’s staff prepared on November 19, 2020, Resident 2 reported that he did not have thoughts of harming himself or that he was better off dead.  CMS Ex. 4 at 114. 

Fourth and finally, Petitioner put forth unrebutted expert testimony from Nelia S. Adaci, R.N., an expert in gerontological nursing.  Nurse Adaci testified that Resident 2’s statement, “I’m not sure if I want to live anymore” was not, considering the totality of the circumstances, a threat of suicide.  Tr. 1 at 304 (Q: “So that statement, I'm not sure if I want to live anymore, is it your testimony that those words uttered by the resident is not necessarily a suicidal ideation?” A: “That is my testimony, Your Honor.”); P. Ex. 14 at 12-13.  Nurse Adaci opined that the statement was not suicidal ideation or a threat of suicide required to trigger Petitioner’s Suicide Threats Policy given the fact that Resident 2 was able to be calmed by LPN 1 shortly after the statement was made and the total context in which it was made.  Tr. 1 at 247-48, 280-290, 299-302, 304-305. 

I agree with Nurse Adaci’s unrebutted opinion on this issue.  The phrase, “I’m not sure if I want to live anymore” is not, per se, a threat of suicide.  Given that LPN 1 was able to calm Resident 2 in a short period of time after the statement was made among all the factors discussed above supports that it was reasonable to not interpret the statement as a threat of suicide.  While Resident 2 did ultimately and unfortunately take his own life, we must look at the circumstances objectively at the time, and not with the benefit of hindsight.  Accordingly, I find that Petitioner has met its burden to show that it was reasonable not to interpret Resident 2’s statement as a threat of suicide and that Petitioner did not abuse or neglect Resident 2 in so doing.  Therefore, I find that Petitioner did not violate 42 C.F.R. § 483.12(a)(1) for its alleged failures to investigate Resident 2’s intent to self-harm, secure the resident’s environment, immediately notify Resident 2’s physician and maintain constant supervision of Resident 2 until instructions were received from Resident 2’s physician. 

c. Alleged failure to notify physician of Resident 2’s alleged change in mood and behavior, worsening depression, and suicidal ideation.

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CMS argues that Petitioner failed to report four separate events to Resident 2’s physician in violation of several of Petitioner’s facility policies and 42 C.F.R. § 483.12:  1) Resident 2’s refusal of oral medications;  2) Resident 2’s alleged change in appetite;  3) Resident 2’s alleged crying;  and 4) Resident 2’s statement, “I’m not sure if I want to live anymore.”⁶  CMS Br. at 12-17; CMS PHB at 16-23.  Each of these are addressed here in turn. 

First, CMS argues that Petitioner violated its Change in Condition or Status Policy (Change in Condition Policy) due to its nursing staff’s failure to report Resident 2’s refusals of oral medication on December 5, 2020.  CMS Br. at 13; CMS Ex. 5 at 1.  The Change in Condition Policy requires that nursing staff notify the physician of a significant change in a resident’s physical, mental or emotional condition.  A significant change in condition is defined as one that will normally not resolve without staff intervention, impacts more than one area of the resident’s health, requires interdisciplinary review, and is based on staff’s clinical judgement and the guidelines outlined in the Resident Assessment Instrument.  Id.  The policy further states that nursing staff “will notify the resident’s Attending Physician . . . when there has been a refusal of treatment or medications two (3) [sic] or more consecutive times.” ⁷  CMS Ex. 5 at 1.  The policy requires that all notifications “be made within twenty-four (24) hours” of the resident’s change in condition, except in the case of medical emergencies.  Id.  Petitioner argues multiple times that the anti-depressant medication that Resident 2 refused, Remeron, remains in a person’s system for days as proof that it didn’t violate its Change in Condition Policy.  P. Post-Hearing Br. at 19; P. Post-Hearing Reply at 10-11.  While there are no exceptions in Petitioner’s policies to report missed medications if the medication remains active in the system, Petitioner’s Change in Condition Policy requires reporting observed changes in behavior within 24 hours.  CMS Ex. 5 at 1.  Given that Resident 2’s medication refusals occurred within 24 hours of Resident 2’s passing, and CMS has not argued that the medication refusals were medical emergencies, Petitioner was not in violation of its Change in Condition Policy.  CMS Ex. 4 at 72.  LPN 1 testified

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that he had planned to report to Resident’s 2’s physician after his shift, which would have been in accordance with the policy’s reporting timeframe.  P. Ex. 13 at 6; Tr. 2 at 54-55, and 80-81. 

Second, CMS argues that Petitioner’s failure to report Resident 2’s alleged change in appetite violated Petitioner’s Depression – Clinical Protocol Policy (Depression Policy), which requires nursing staff to report change/decline in mood associated with anorexia, crying, sleeplessness.  CMS Br. at 12-13, 15; CMS Ex. 5 at 17.  CMS notes that, on December 5, 2020, Resident 2 ate only half of his lunch and refused his dinner.  Id.  However, unrebutted testimony at the hearing noted that Resident 2, while refusing his dinner, ultimately accepted and ate a substitute sandwich.  CMS Ex. 13 at 7; Tr. 2 at 33.  Accordingly, I find that Resident 2 did not demonstrate a change in appetite sufficient to warrant reporting to Resident 2’s physician.  However, even if Resident 2 had shown a change in appetite, the section of the Depression Policy that discusses change in appetite is found under the “Assessment and Recognition” section.  In the present case, Resident 2 was diagnosed with major depressive disorder from the date of his admission.  Accordingly, Petitioner had already assessed and recognized Resident 2’s major depressive disorder.  Therefore, I find that failure to report an alleged change in appetite of an already-diagnosed depressed resident does not violate the Depression Policy.  Finally, the Depression Policy sets forth no timeframe for which nursing staff must report changes in appetite.  As Petitioner passed within hours of any alleged change in appetite, I find that Petitioner did not violate its Depression Policy. 

Third, CMS argues that Petitioner violated Resident 2’s depression care plan in failing to notify the physician of his change in appetite, which required nursing staff to monitor, document and report signs of depression, including, but not limited to, sadness, irritability, anger, crying, shame, worthlessness, guilt, suicidal ideations, negative mood or comments, disrupted sleep, changes in appetite, lethargy or anxiety.  CMS Br. at 13, 15; CMS Ex. 4 at 35.  As discussed above, I find that Resident 2 did not have a change in appetite on December 5, 2020.  Furthermore, even if he did have a sufficient change in appetite to warrant reporting, there is no requirement that such a change be reported immediately.  Given that Resident 2 passed away within hours of his alleged change in appetite, I find that Petitioner did not violate Resident 2’s depression care plan. 

Fourth, CMS alleges that Petitioner’s staff failed to report Resident 2’s alleged crying to the treating physician.  CMS Br. at 15-16.  CMS argues that this failure violated both the facility’s Depression Policy and Resident 2’s depression care plan.  Id.  It is undisputed that Resident 2 was seen to be upset on the evening of December 5, 2020.  However, LPN 1 testified credibly that he never witnessed Resident 2 crying, as argued by CMS and its witnesses.  P. Ex. 13 at 5; Tr. 2 at 38, 44; CMS Ex. 1 at 1, 3, 12; CMS Ex. 7 at 21.  In fact, LPN 1 testified that he never told the surveyors that he witnessed Resident 2 crying, despite what is stated in the surveyor’s notes and report.  P. Ex. 13 at 5; Tr. 2 at 38, 44.  Accordingly, as LPN 1 was the only person alleged to have seen Resident 2

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crying on December 5, 2020, I find that Petitioner has proven by a preponderance of the evidence that Resident 2 was not crying on December 5, 2020.  Moreover, as discussed above, neither the Depression Policy, nor the care plan required immediate notification to the physician.  Given that Resident 2 passed away within 17 minutes of being observed to be upset, I find that Petitioner did not violate the Depression Policy or the care plan.  Additionally, Petitioner’s duty to report crying is found under the “Assessment and Recognition” section of the Depression Policy.  Because Resident 2 was already diagnosed with depression well before December 5, 2020, I find for this reason as well that Petitioner did not violate the Depression Policy for failure to immediately notify the physician that Resident 2 was allegedly observed crying.  

Finally, CMS argues that Petitioner violated its Suicide Threats Policy.  CMS Br. at 13; CMS Ex. 5 at 16.  However, as previously stated, Petitioner has proven that it was reasonable to conclude that Resident 2 had not threatened suicide.  Therefore, Petitioner did not violate its Suicide Threats Policy. 

d. Alleged failure to properly train staff on caring for a resident who exhibited signs of depression and/or suicidal ideation.

CMS next argues that Petitioner violated 42 C.F.R. § 483.12 in its alleged failure to train its staff on caring for residents who exhibit signs of depression and/or suicidal ideation.  CMS Br. at 17-18.  Specifically, CMS argues that LPN 1 was not trained in suicide prevention.  Id.  CMS correctly points out there is no documentation demonstrating that Petitioner’s staff was trained to respond to depression and suicidal ideation in residents prior to Resident 2’s suicide.  Id.  Indeed, Petitioner itself acknowledges this.  Tr. 1 at 154-58.  However, it was also undisputed that Petitioner’s facility changed ownership in 2019, and that all documentation prior to the ownership change, including documentation of staff training, could not be located or retrieved due to the transition.  Id.  There was further unrebutted testimony that all staff were indeed trained on caring for residents who exhibit signs and depression and suicidal ideation.  P. Ex. 13 at 1; Tr. 1 at 153, 168-69.  Finally, LPN 1 testified that Petitioner trained him on suicide prevention.  P. Ex. 13 at 1; Tr. 2 at 13-18, 63-64. 

Accordingly, I find that Petitioner has met its burden to show by a preponderance of the evidence that it provided appropriate training to its staff regarding the care of residents who exhibit signs of depression and/or suicidal ideation. 

2. Petitioner was in substantial compliance with 42 C.F.R. § 483.21(b) (Tag F656) (Develop/implement Comprehensive Care Plan), because CMS has failed to make a prima facie case that Petitioner failed to implement Resident 2’s care plan.

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42 C.F.R. § 483.21(b) states that facilities like Petitioner’s must develop and implement comprehensive care plans for each resident.  It is not enough that the facility develop a care plan.  The care plan must be implemented to be in substantial compliance with 42 C.F.R. § 483.21(b).  The statutory requirement for facilities to develop comprehensive care plans reflects the “importance of unified and coordinated resident assessments to the provision of high-quality care.”  Sheridan Health Care Ctr., DAB No. 2178 at 36 (2008) (quoting 52 Fed. Reg. 38,582, 38,585 (1987)).  A comprehensive care plan “functions as a roadmap for all of the resident’s caregivers, including those unfamiliar with a resident or without professional training, to provide consistent care and services tailored to ‘attain or maintain the resident’s highest practicable physical, mental and psychosocial well-being.’”  Id. at 37 (quoting 42 C.F.R. § 483.21(b)). 

CMS argues that Petitioner violated 42 C.F.R. § 483.21(b) due to its alleged failure to report observed signs and symptoms of depression, including crying, negative mood/comments and suicidal ideation.  CMS Br. at 20-21.  As set forth more fully above, I find that Resident 2 did not threaten suicide.  Accordingly, there was no violation from Petitioner’s staff’s failure to report Resident 2’s alleged suicide threat. 

Furthermore, Resident 2’s care plan did not require Petitioner to immediately report signs and symptoms of depression, such as crying and negative mood.  As Resident 2 was only allegedly observed to be crying and in a negative mood a mere 17 minutes before his passing, I find that Petitioner did not violate Resident 2’s care plan and therefore did not violate 42 C.F.R. § 483.21(b).  CMS’s finding of noncompliance with 42 C.F.R. § 483.21(b) is reversed along with the resulting $10,650 PICMP. 

3. CMS’s finding that Petitioner had not substantially complied with 42 C.F.R. § 483.12 at scope and severity level J is not reviewable.  

A facility may only challenge CMS’s determination as to the scope and severity of noncompliance if a successful challenge would affect the range of the CMP that may be imposed or impact the facility’s authority to conduct a NATCEP.  42 C.F.R. § 498.3(b)(14), (d)(10)(i).  Here, as there is only a single range for PICMPs regardless of scope and severity and Petitioner’s ability to conduct a NATCEP was not affected, the scope and severity finding by CMS is not reviewable.  

4. The $20,780 per-instance CMP amount imposed by CMS for Petitioner’s violation of 42 C.F.R. § 483.12 is not reasonable. 

As I have concluded that Petitioner violated 42 C.F.R. § 483.12, I must now determine whether the PICMP imposed against Petitioner was reasonable.  In so determining, 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,

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indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors listed in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies. 

The Board has explained that “[i]t is settled law that ALJ review of the reasonableness of CMP amounts imposed by CMS is de novo.”  Fireside Lodge Retirement Ctr., Inc., DAB No. 2794 at 19 (2017).  I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors. I am neither bound to defer to CMS’s factual assertions, nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002).  The Board has explained that “[t]he determination of whether a CMP amount is reasonable is a conclusion of law, not a finding of fact.”  Cedar Lake Nursing Home, DAB No. 2344 at 12 (2010), aff’d, Cedar Lake Nursing Home v. U.S. Dep’t of Health & Human Servs., 619 F.3d 453, 457 (5th Cir. 2010).  

Pursuant to 42 C.F.R. § 488.408(g)(2), a facility cannot appeal CMS’s choice of a remedy, and an appeal of a CMP is limited to review based on the regulatory factors set forth at 42 C.F.R. §§ 488.438(f) and 488.40(b)-(c).  See, e.g., Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 19-20 (2010). 

The regulations specify that a CMP imposed against a facility on a per-instance basis will fall into a single range of penalties.  42 C.F.R. §§ 488.408; 488.438.  The range is from $1,000 per instance to $10,000 per instance, adjusted for inflation under 45 C.F.R. pt. 102.  42 C.F.R. § 488.438(a)(2).  The adjusted amounts applicable in this case are $2,233 per instance to $22,320 per instance.  45 C.F.R. §§ 102.2, 102.3.  42 C.F.R. §§ 488.408, 488.438.  Here, CMS imposed a PICMP of $20,780, which is at the upper end of the penalty range.  

CMS argues that the CMP is reasonable based on the seriousness of Petitioner’s noncompliance and its history of noncompliance, which includes a level J (immediate jeopardy) finding in 2017.  CMS Br. at 25; CMS Ex. 11.  In response, Petitioner argues that the CMP should be removed because it was in substantial compliance with applicable Medicare regulations.  P Br. at 25. 

The $20,780 PICMP assessed in this case for Petitioner’s violation of 42 C.F.R. § 483.12 is at the upper end of the possible range, and I find that is not reasonable in light of my findings detailed above.  CMS arrived at the $20,780 PICMP for Petitioner’s violation of 42 C.F.R. § 483.12 based on the following allegations: failure to investigate the seriousness of Resident 2’s intent to self-harm; failure to secure the resident environment

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after Resident 2’s alleged suicidal ideation; failure to supervise Resident 2 until instructions were received from his treating physician; failure to notify physician of Resident 2’s alleged change in mood and behavior, worsening depression, and suicidal ideation; failure to properly train staff on caring for a resident who exhibited signs of depression and/or suicidal ideation; and failure to provide psychotherapy as recommended.  With the exception of the last alleged violation – failure to provide psychotherapy as recommended – I have found Petitioner in substantial compliance.  I do not find that the failure to provide recommended psychotherapy was likely to result in serious bodily harm under the facts and circumstances of this case, and I find that Petitioner’s culpability is low contrary to CMS’s arguments in support of the reasonableness of the PICMP.  See CMS Br. at 25.  On the other hand, Petitioner had a J-level deficiency in 2017, which was 4 years prior to this survey cycle, in which an $11,050 PICMP was assessed.  See CMS Ex. 11.  Therefore, in light of the factors enumerated at 42 C.F.R. §§ 488.438(f) and 488.404, I find that the imposed PICMP is unreasonable and reduce it to $7,000–an amount reasonably related to an effort to produce corrective action by Petitioner with the kind of deficiency found in this case. 

c. Conclusion

For the reasons discussed above, I find that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12 and that the PICMP imposed by CMS in the amount of $20,780 was not reasonable in light of my above findings.  The PICMP for Petitioner’s violation of 42 C.F.R. § 483.12 is reduced to $7,000.  I further find that Petitioner was in substantial compliance with 42 C.F.R. § 483.21(b) and reverse the associated $10,650 PICMP imposed by CMS. 

Endnotes

¹  Effective November 28, 2016, CMS substantially revised the federal nursing home regulations and re-numbered the tag numbers corresponding to the regulations.  81 Fed. Reg. 68,688 (Oct. 4, 2016).

²  CMS or the state agency designates the scope and severity level using a letter from A through L, based on a scope and severity matrix published in the State Operations Manual (SOM), ch. 7, § 7400.3.1 (Rev. 185, eff. Nov. 16, 2018), available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07pdf.pdf 
(last visited October 10, 2023).  A scope and severity level of A, B, or C indicates a deficiency that presents no actual harm but has the potential for minimal harm, which is an insufficient basis for imposing an enforcement remedy.  Facilities with deficiencies of levels A, B, or C remain in substantial compliance.  SOM, Ch. 7, § 7400.3.1, citing 42 C.F.R. § 488.301.  Levels D, E, or F indicate a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy.  Id.  Levels G, H, or I indicate a deficiency that involves actual harm that does not amount to immediate jeopardy.  Id.  Levels J, K, and L indicate a deficiency that constitutes immediate jeopardy to resident health or safety.  Id.  The matrix specifies which remedies are required and optional at each level based upon the pervasiveness of the deficiency.

³  CMS also cited a violation of 42 C.F.R. § 483.12(a)(1) (Behavioral Health Services).  However, as discussed above, no remedy was imposed as a result of this alleged violation.  Accordingly, this alleged violation is not reviewable on appeal.  42 C.F.R. § 498.3(b)(13); see also Generations at Regency Ctr., DAB No. 2950 at 6-7 (2019).

⁴  CMP amounts increased, effective February 3, 2017, for deficiencies assessed on or after February 3, 2017, when the violation occurred after November 2, 2015.  See 82 Fed. Reg. 9,174 (Feb. 3, 2017).  The range of CMP amounts I have listed above are the ranges which were in effect as of the date the CMPs were imposed against Petitioner:  December, 2020.

⁵  As the hearing in this matter was held over the course of two, nonconsecutive days, the transcript for the first hearing date will be cited to as “Tr. 1” and the transcript for the second hearing date will be cited to as “Tr. 2.”

⁶  CMS alleges that Petitioner failed to follow its Behavioral Assessment, Intervention and Monitoring Policy (Behavior Policy), which states that “nursing staff will identify, document, and inform the physician about specific details regarding changes in an individual’s mental status behavior and cognition.”  CMS Br. at 12; CMS Ex. 5 at 5.  CMS does not, however, further specify how Petitioner failed to follow this policy.  Therefore, I do not address it in my decision.

⁷  There is ambiguity as to whether Petitioner’s policy required notification after two or three consecutive medication refusals.  Given the timing of the second refusal of medication occurring less than three hours from the time Resident 2 committed suicide, whether the policy is interpreted to require notice after two or three consecutive medication refusals does not impact my decision.