Advanced Rehabilitation and Healthcare of Athens, DAB CR6542 (2024)

DECISION

Petitioner, Advanced Rehabilitation and Healthcare of Athens, is a skilled nursing facility (SNF or facility), located in Athens, Texas, that participates in the Medicare program.  Following a recertification survey completed on September 10, 2021, the Centers for Medicare and Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements.  CMS imposed a $7,000 per-day civil money penalty (CMP) from August 17 through September 9, 2021, for a total of $168,000.  From September 10, 2021 through October 7, 2021, CMS imposed a $250 per-day CMP for a total of $7,000.  The combined total for the CMP is $175,000.

For the reasons set forth below, I¹ find that the facility was not in substantial compliance and its deficiencies posed immediate jeopardy to resident health and safety.  I further find the penalties imposed are reasonable.

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I.     Procedural Background

On August 9, 2021, August 25, 2021, and September 10, 2021, surveyors from the Texas Health and Human Services Commission (THHSC or state agency) conducted health surveys of Petitioner’s facility.  As a result of the surveys, THHSC determined Petitioner was not in substantial compliance with various Medicare/Medicaid participation requirements.  Although CMS agreed with the state agency and determined that the conditions cited under 42 C.F.R. § 483.25, which was cited at scope and severity level “J,” that represented immediate jeopardy had been removed on September 10, 2021, CMS found that Petitioner continued to be not in substantial compliance with Medicare participation requirements, including with 42 C.F.R. § 483.25.²  CMS determined that Petitioner returned to substantial compliance with the participation requirements on October 8, 2021.  CMS Ex. 1 at 1.

Petitioner timely requested review³.

The parties filed pre-hearing briefs (CMS Br.; P. Br.), proposed exhibits, and post-hearing briefs (CMS Post-hrg. Br; P. Post-hrg. Br).  On August 14, 2024, the parties filed post-hearing reply briefs (CMS Reply; P. Reply).

On February 13, 2024, I convened a hearing via video conference.  I admitted into evidence CMS Exhibits (CMS Exs.) 1-33 and Petitioner Exhibits (P. Exs.) 1-4.  Transcript (Tr.) at 9, 153.

Prior to the hearing, the parties submitted Joint Stipulations of Facts and a Joint Statement of Issues (Joint Stipulation).  The Joint Stipulation narrowed the issues to 1) whether Petitioner was in substantial compliance with the Medicare/Medicaid

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requirement of 42 C.F.R. § 483.25 (Tag F684), cited in the September 10, 2021 survey; 2) whether the noncompliance constituted immediate jeopardy; and 3) whether the per-day CMP totaling $175,000 was reasonable.  The parties confirmed their agreement regarding the issues at the hearing.  Tr. at 7-8.  Based on the parties’ joint stipulations, my decision is limited to the stipulated issues⁴.

II.    Statutory and Regulatory Background

The Social Security Act (Act) sets forth requirements for SNFs or long-term care facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing these statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in Medicare, a SNF must be in “substantial compliance” with participation requirements in 42 C.F.R., Part 483, subpart B.  42 C.F.R. §§ 483.1, 488.404.  A “deficiency” is a “failure to meet a participation requirement.”  42 C.F.R. § 488.301.  A SNF is not in “substantial compliance” when it has one or more deficiencies that have the potential for causing more than minimal harm to residents.  Id.

The Secretary contracts with state agencies to survey SNFs to determine whether they are in substantial compliance with program requirements.  Act § 1864 (a); 42 C.F.R. § 488.20.  CMS may impose enforcement remedies based on the survey results, including a per-day or per-instance CMP on a SNF that is not in substantial compliance.  42 C.F.R. §§ 488.400, 488.402(b), (c), 488.406.  CMS determines the amount of a CMP based on multiple factors, which include the “seriousness” of the noncompliance.  42 C.F.R. §§ 488.404(b), 488.438(f).  “Seriousness” is a function of the noncompliance’s scope (whether it is “isolated,” constitutes a “pattern,” or is “widespread”) and severity (whether it has created a “potential for harm,” resulted in “actual harm,” or placed residents in “immediate jeopardy”).  42 C.F.R. § 488.404(b).

III.   Issues

The issues before me are:

1. Whether the facility was in substantial compliance with Medicare program requirements as set forth in 42 C.F.R. § 483.25 (Tag F684) as determined by the September 10, 2021 survey;

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2. If the facility was not in substantial compliance with the program requirements as determined by the September 10, 2021 survey, whether CMS’s determination that the alleged non-compliance constituted Immediate Jeopardy was clearly erroneous; and
3. If the facility was not in substantial compliance, whether the imposition of per-day CMPs, totaling $175,000, is reasonable.

IV.   Findings of Fact, Conclusions of Law, and Analysis⁵

1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25.

42 C.F.R. § 483.25 (Tag F684) requires that “[b]ased on the assessment of a resident, the facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices . . . .”  See Act § 1819(b)(2).

Petitioner’s Policies for Monitoring Vital Signs

The facility’s Clinical Practice Guidelines Vital Signs policy (Vital Signs Policy) that was most recently reviewed by the facility on February 15, 2020, describes the assessment of vital signs “as a means to establish baseline data with which to judge the significance of any future deviations from what appear to be the ‘characteristic’ or ‘normal.’”  CMS Ex. 8 at 1.  The guidelines also document that “[t]emperature, pulse, respiration, blood pressure, and pain assessment (considered the fifth vital sign) together comprise a set of Vital Signs.”  Id.

Neither CMS’s nor Petitioner’s witnesses dispute that a physician’s order for vital signs typically includes the oxygen saturation level (O2 saturation or O2 sat.), pulse, temperature, blood pressure, and respiratory rate.  Tr. 97, 138-39.

The facility’s Assistant Director of Nursing (ADON), Licensed Vocational Nurse (LVN) B, and Hospitality Aide K confirmed during the survey that vital signs are to be taken on each shift for residents on the skilled hall.  CMS Ex. 7 at 4, 16-18; CMS Ex. 4 at 7, 13, 14; see also CMS Ex. 32 at 2 (staff identifier key).  The ADON further confirmed that staff are not to “reuse” vital sign assessments.  CMS Ex. 7 at 17.

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Circumstances Underlying CMS’s Determination

In asserting that Petitioner was not in substantial compliance with the requirements imposed by 42 C.F.R. § 483.25, CMS relies on the circumstances involving two residents who expired on August 23, 2021, and within a span of five hours.  CMS Ex. 4 at 2.  Primarily, CMS asserts that the facility failed to ensure that Resident # 1 (R1) and Resident # 2 (R2) were thoroughly assessed after their admission and prior to their deaths.  CMS Post-hrg. Br. at 11.  Specifically, the surveyor found that vital signs were not taken on each shift for either of these skilled care residents.  CMS Ex. 4 at 4.  Additionally, the surveyor determined that the facility was noncompliant by failing to consult with R1’s physician and to document a change in his condition when he vomited on August 22, 2021, the day before he expired.  CMS Ex. 4 at 2.

Resident # 1 (R1)

R1 was a 77-year-old man who fractured his hip on August 3, 2021 and underwent surgery on August 4, 2021.  CMS Ex. 5 at 152, 200.  He was admitted to the facility on August 17, 2021, for skilled rehabilitation including occupational and physical therapy, with plans to return home after completing rehabilitation.  CMS Ex. 5 at 1-2; P. Ex. 1 at 1.  R1’s diagnoses included high blood pressure, chronic kidney disease, diabetes, displaced fracture of left femur, heart failure and gallstones with swelling of the gallbladder.  CMS Ex. 4 at 2-3; CMS Ex. 5 at 99, 127-29.

At 2:35 a.m. on August 23, 2021, a Certified Nursing Assistant (CNA) found R1 unresponsive and called a nurse.  The nurse responded to the room with a crash cart and Automated External Defibrillator, and the staff began cardiopulmonary resuscitation (CPR) until emergency medical services (EMS) personnel arrived and assisted with CPR.  R1 was pronounced dead by EMS personnel at 3:05 a.m. on August 23, 2021.  CMS Ex. 5 at 7.

The days prior to R1’s death

Upon R1’s admission to the facility on August 17, 2021, R1’s physician ordered that his vitals be taken monthly and as needed.  CMS Ex. 4 at 3; CMS Ex. 5 at 101.  Because of R1’s diagnosis of acute and chronic respiratory failure, the physician’s order also required an assessment of R1’s O2 saturation level on each shift.  CMS Ex. 5 at 100; CMS Ex. 4 at 3.  Further, because R1 was admitted to the skilled care hallway, his vitals were to be taken each shift.  P. Ex. 1 at 2; CMS Ex. 6 at 6 ¶ 16; CMS Ex. 7 at 17.

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Following R1’s admission to the facility on August 17, 2021, R1’s temperature, pulse, respirations, and blood pressure were documented as taken between 6:14 and 6:16 p.m.⁶  P. Ex. 1 at 22-25.  R1’s O2 saturation level and pain level are not documented for August 17, 2021.  See P. Ex. 1 at 26-27.  R1’s temperature, pulse, respiration, blood pressure, and O2 saturation level were next recorded at 12:22 p.m. on August 18, 2021.  P. Ex. 1 at 22-27.  R1’s pain level was not documented on August 18, 2021.  P. Ex. 1 at 26.

R1’s temperature, pulse, respiration, blood pressure, and O2 saturation level were again documented at 10:37 a.m. on August 19, 2021.  P. Ex. 1 at 22-25, 27.  R1’s pain level was not documented on August 19, 2021.  P. Ex. 1 at 26.  R1’s temperature, pulse, respiration, blood pressure, and O2 saturation level were also assessed between 4:09 a.m. and 4:11 a.m. on August 20, 2021.  Id. at 22-27.  R1 reported his pain level at a level of 8 out of 10.  Id. at 26.

Although some of R1’s vitals were taken at least once a day for the first three days after his admission, Petitioner’s Daily Skilled Observation Report for August 21, 2021 reflects a change in practice with documenting R1’s current and daily vital signs.  Although his pain level was assessed at 10:10 a.m. on August 21, 2021, R1’s other vital signs were simply listed as “most recent” and include those taken and documented for August 20 at 4:09/4:10 a.m.  Compare P. Ex. 1 at 2-3, with P. Ex. 1 at 26.  Specifically, the Daily Skilled Observation form includes the temperature, pulse, respiration, and O2 saturation level from the previous day.  Compare P. Ex. 1 at 2-3, with P. Ex. 1 at 23-25, 27.

The failure to document new vital sign assessments continued into the following day.  While the Petitioner’s Daily Skilled Observation Form for August 22, 2021 documents R1’s pain level as a 3 from August 21, 2021, it was assessed in the Pain Level Summary form as a 2 at 7:42 a.m. on August 22, 2021.  Compare P. Ex. 1 at 8-9, with P. Ex. 1 at 26.  The remainder of the form reflects that no other new vital signs were assessed on August 22, 2021.  P. Ex. 1 at 8.  As with the day before, the form again references the “most recent” temperature, pulse, blood pressure, and O2 saturation as those taken on August 20, 2021.  P. Ex. 1 at 8-9.  Only R1’s blood pressure and pulse were checked daily from August 17 through August 22 in conjunction with his receiving blood pressure medication.  P. Ex. 1 at 20; P. Ex. 3 at 1 ¶ 3.  These daily checks were not incorporated into the Blood Pressure Summary form.  See P. Ex. 1 at 22 (no values noted between August 20 and August 23, 2021).

Disregarding the fact that R1 was a skilled care resident and despite his physician’s order that his O2 saturation level be assessed each shift, Petitioner argues that R1’s physician’s orders only required that his vital signs be taken once a month.  P. Post-hrg. Br. at 7, 8. 

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Petitioner also argues that the surveyors did not cite to any facility policy regarding the taking of vital signs every shift or any regulatory authority for such.  Id. at 8.  In fact, in her direct testimony, Petitioner’s Regional Nurse Consultant testified that the surveyor’s Statement of Deficiencies “incorrectly states” that R1 should have had his vital signs taken each shift.  P. Ex. 3 at 1 ¶ 3.  She asserts that his blood pressure was taken daily in conjunction with his blood pressure medication, and she maintained that the physician’s orders only directed his vitals to be taken monthly.  Id.

During her hearing testimony, however, she acknowledged that to meet skilled care criteria, vital signs are taken each day for residents in skilled care.  Tr. at 140-41.  Although she did not address whether vitals are required to be taken each shift, neither she nor any other Petitioner witness explicitly rebutted LVN B’s or the ADON’s statements that nurses are required to take skilled care residents’ vital signs each shift.  CMS Ex. 4 at 7; Tr. at 107.

The facility’s Regional Nurse Consultant also acknowledged that R1’s physician ordered that his O2 saturation level be assessed on each shift.  Tr. at 107.  She provided no explanation why the facility failed to do so.

Resident # 2 (R2)

(R2) was admitted to the facility on August 20, 2021 with diagnoses including hypertension, diabetes, chronic kidney disease, heart failure, and a fall with a brain bleed and loss of consciousness.  CMS Ex. 4 at 10; CMS Ex. 20 at 31-33.  While the physician’s order included an order for monthly vital signs and as needed (CMS Ex. 20 at 3), R2 was also placed on the skilled care hall requiring that his vitals be taken each shift.  CMS Ex. 6 at 6 ¶ 16; P. Ex. 2 at 8.

At 8:46 a.m. on August 23, 2021, LVN G found that R2 had low blood pressure and left the room to call his physician.  A CNA called her back to the room and reported that R2 was unresponsive.  The nurse found that R2 had shallow breathing and a pulse but was unresponsive to all stimuli.  The nurse called for the crash cart and called 911.  Despite receiving CPR before and after EMS personnel arrived, R2 was ultimately pronounced deceased.  CMS Ex. 4 at 12-13; CMS Ex. 20 at 9.

The days before R2’s death

R2’s vital signs were taken at approximately 5:50 a.m. on August 21, 2021.  CMS Ex. 4 at 10; CMS Ex. 20 at 7.  Nurses’ notes for 11:19 a.m. on August 21 document the same vital signs that were taken six hours earlier.  CMS Ex. 20 at 8-9.  Nurses’ notes for August 22 at 4:31 a.m. again document R2’s vital signs as those taken at 5:50 a.m. the previous day.  CMS Ex. 20 at 8.  The nurses’ notes dated August 22, at 8:26 a.m. also

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document all the same vital signs that were taken on August 21 at 5:50 a.m.  CMS Ex. 20 at 9.

R2’s medical records reflect that between 5:50 a.m. on August 21, 2021 and early in the morning on August 23, 2021, the facility did not assess R2’s temperature, pulse rate, respiration, and O2 saturation.  See CMS Ex. 20 at 6-10; P. Ex. 2 at 2, 8, 14, and 20.  Petitioner’s Regional Nurse Consultant testified that R2’s blood pressure was taken every shift for purposes of administering his blood pressure medication.  P. Ex. 3 at 2.  However, Petitioner’s medication chart for R2 contains no entry for blood pressure assessment at any time on August 21.  P. Ex. 2 at 26-27.  Additionally, P. Ex. 2 at 29 reflects only two blood pressure assessments for R2:  August 21, 2021 at 5:50 a.m. and August 23, 2021 at 7:30 a.m.  R2’s Daily Skilled Observation report for August 21 and August 22 also document the same blood pressure assessment from 5:50 a.m. on August 21.  P. Ex. 2 at 2, 8, 14, 20.

V.    Discussion

Generally, Petitioner submits similar arguments for both R1 and R2.  Petitioner argues that R1 suddenly passed away due to his serious cardiac co-morbidities and not due to any failure to assess him or to provide him with necessary care and services.  P. Post-hrg. Br. at 7.  Petitioner also argues that there is no evidence that R2 was not appropriately and timely assessed.  Petitioner further asserts that the nurse identified R2’s change of condition and was on her way to notify the physician when he became unresponsive.  P. Post-hrg. Br. at 8.

The evidence before me cannot confirm the ultimate cause of death for R1 and R2, nor do I have the authority to make that determination.  Moreover, the cause of these residents’ death is not the basis for determining the underlying deficiency.  The facility’s failure to meet a participation requirement “is what constitutes the deficiency, not any particular event that was used as evidence of the deficiency.”  Oceanside Nursing & Rehab. Ctr., DAB No. 2382 at 18 (2011) (quoting Regency Gardens Nursing Ctr., DAB No. 1858 at 21 (2002)).  Thus, the issue before me is whether Petitioner failed to substantially comply with Medicare participation requirements in accordance with 42 C.F.R. Part 483.

The Act mandates that a facility provide services to attain or maintain the highest practical physical, mental, and psychological well-being of each resident in accordance with a written plan of care.  Act § 1819(b)(2).  An implementing regulation of the statutory requirement characterizes “[q]uality of care [as] a fundamental principle that applies to all treatment and care provided to facility residents.”  42 C.F.R. § 483.25.  Section 483.25 requires that “[b]ased on the comprehensive assessment of a resident, the facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident's choices.”  42 C.F.R. § 483.25.  The Departmental Appeals Board (Board) has

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concluded that 42 C.F.R. § 483.25 not only requires skilled nursing facilities to furnish the care and services set forth in a resident’s care plan, but also to implement physician’s orders, monitor and document a resident’s condition, and follow its own policies.  Rehab. Ctr. at Hollywood Hills, DAB No. 3052 at 21 (2021) (quoting Heritage House of Marshall Health & Rehab., DAB No. 3035 at 10 (2021)); Life Care Ctr. of Bardstown, DAB No. 2479 at 22 (2012); Alexandria Place, DAB No. 2245 at 7-8 (2009) (upholding a deficiency when a facility did not provide care in accordance with a doctor’s order).

While Petitioner argues that the duplication of vital sign documentation may have been a glitch with the computer and was not intentional, Petitioner failed to provide any evidence to corroborate the existence of a computer glitch or to establish that vital signs were, in fact, taken in accordance with the facility’s policy and practice for these skilled care residents.  Petitioner’s Regional Nurse Consultant testified that during the period in question, the facility recently transitioned from paper to computer records.  She asserted that there was still paper documentation in addition to electronic records.  Tr. at 141.  When asked to elaborate as to the paper documentation of vitals for R1 on August 21 and 22, the Regional Nurse Consultant could only identify blood pressure and pulse assessments for those dates.  Tr. at 144.  Thus, despite Petitioner’s assertions, Petitioner failed to submit any evidence to corroborate the existence of any computer glitch on the days at issue or to present any evidence of paper or other documentation demonstrating full vitals assessment on the days before R1 and R2 expired.

Petitioner’s Regional Nurse Consultant does not dispute that R1’s vital signs from August 20, 2021 were imported to R1’s Daily Skilled Observation nursing notes for August 21, 2021 and August 22, 2021.  She maintains, however, that the facility did not “carry over” previously recorded vital signs because the records “specifically state ‘the most recent temperature, most recent pulse.’”  P. Ex. 3 at 1-2 ¶ 4.  She also asserts that nurses assessed his cognition, bowel, bladder, cardiovascular and neurological status as well as respirations on August 21 and August 22.  Id.  First, I note that assessments of cognition, bowel, bladder, and neurological status are clearly not included in the facility’s guidelines for vital signs assessment.  CMS Ex. 8 at 1.  Further, I note that while the nurse indicated that R1 had a regular respiratory rate on August 21 and August 22, the actual respiration rate was not documented for those dates and the nurse only documented the respiratory rate that was assessed at 4:10 a.m. on August 20.  While the nurse documented R1’s pulse as regular rate and rhythm for August 21 and August 22, the nurse again used the pulse rate that was taken at 4:10 a.m. on August 20, 2021.  P. Ex. 1 at 2, 5, 8, 11, 14.

While Petitioner does not dispute that there is no evidence to support that the facility took R1’s vitals on the two days before he died, Petitioner submitted documentation to show that R1’s pulse, temperature, blood pressure, respiration, pain, and O2 saturation were taken at 2:30-2:31 on the morning of August 23 and less than an hour before he was pronounced deceased at 3:05 a.m.  P. Ex. 1 at 22-27.  Petitioner does not dispute that, despite the physician’s order to check R1’s O2 sat. each shift, R1’s O2 saturation level

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was not assessed from 4:10 a.m. on August 20 until 2:31 a.m. on August 23.  CMS Ex. 7 at 3.  The fact that facility staff finally assessed R1’s vitals after a span of almost three days does not mitigate the facility’s failure to adequately assess and monitor this resident for the days prior to his death.

Petitioner takes issue with CMS’s assertion that the facility “recorded old vital signs” for R1.  P. Reply at 4.  Petitioner submits that this “is simply not true,” arguing that “the records specifically state, ‘most recent temperature, most recent pulse,’ etc.”  P. Reply at 4.  Whether the wording is “old” or “most recent,” the distinction is more a matter of semantics.  Despite the description that may be used, the evidence clearly reflects that the facility relied on previously assessed vitals for these newly admitted skilled care residents rather than following the doctor’s order and the facility’s policy for skilled care residents.

Petitioner asserts that the facility did not “carry over” the vital sign assessments for R2 and there was no representation that the vital signs were current.  P. Br. at 7; P. Post-hrg. Br. at 9.  Petitioner’s argument that the facility did not falsely represent when the vital sign assessments were taken does not justify the staff’s failure to fully monitor these residents after their admission to the skilled care unit.  Although Petitioner argues that the doctor’s orders for R2 only required vitals be taken once a month, the surveyor determined that vitals are to be taken each shift for residents on the skilled care hall.  CMS Ex. 6 at 6 ¶ 16; CMS Ex. 4 at 13.  In her sworn declaration, Petitioner’s Regional Nurse Consultant asserts that the surveyor and the Statement of Deficiencies (SOD) are incorrect and that R2’s physician’s orders directed that his vital signs be taken only one time per month.  P. Ex. 3 at 2 ¶ 8.  However, in her hearing testimony, she acknowledged that the criteria for skilled care residents requires that vitals be taken each day.  Tr. at 141.  I also note that in her written direct testimony, she relies on the doctor’s orders for monthly vitals assessment to refute the surveyor’s determination that vital signs were to be assessed for each shift.  She does not deny that R1 and R2 were skilled care residents which mandated that their vital signs be assessed each shift.  P. Ex. 3 at 1, 2.

Hospitality Aide (HA) K told the surveyor that every shift is short staffed and acknowledged that staff do not assess vitals on the weekends.  CMS Ex. 7 at 4; see also CMS Ex. 32 at 2 (staff identifier key).  In an interview with the surveyor, other residents confirmed that vital signs were not routinely taken on weekends.  Resident # 3 confirmed that his vital signs were not taken on the weekends, and he seldom saw his nurse on the weekend.  Resident # 5 also confirmed that she only saw the medication aide on the weekends and not the nurses.  She reported that she would only see a nurse on the weekend if she requested a pain medication, and that “sometimes” the nurse would get her vital signs but not always.  CMS Ex. 4 at 14-15.  Although the SOD does not identify whether Residents 3 or 5 were on the skilled hall, Petitioner submitted no evidence to rebut these resident statements or the statements attributed to the ADON and LVN B.  Beatrice State Developmental Ctr., DAB No. 2311 at 17, 18 (2010) (pointing out that the

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facility could have but did not present employee testimony that refuted the statements the surveyors claimed they made).

Clearly, the unrebutted evidence reflects that R1 and R2 did not receive care envisioned by 42 C.F.R. § 483.25.  A deficit in care is first documented on R1’s day of admission.  Despite the physician’s order that R1’s O2 saturation level be checked every shift, R1’s O2 saturation was not included in the vitals assessment on the day he was admitted and was not assessed until the following day at 12:22 p.m.  P. Ex. 1 at 27.  I also note that even though R1 reported a pain level of 8 out of 10 at 4:11 a.m. on August 20, there is no evidence that new vitals were taken to fully assess this reported pain level until approximately an hour prior to his death on August 23.  P. Ex. 1 at 22-27.

While Petitioner’s Nurse Consultant testified that R2’s blood pressure was taken every shift for purposes of administering his blood pressure medication, R2’s records do not reflect that his blood pressure was checked each shift.  P. Ex. 2 at 27, 29.  And, similarly to the situation with R1, R2’s temperature, pulse rate, respiration, and O2 saturation level were not checked between 5:50 a.m. on August 21, 2021 and shortly before he died on August 23, 2021.  P. Ex. 2 at 29; CMS Ex. 20 at 6-10.  Additionally, the medication log shows that R2’s Blood pressure is documented only once on August 22 and then again before he expired when his blood pressure was 88 over 46.  P. Ex. 2 at 27.

Petitioner argues that when discussing R1, the surveyor testified on cross-examination, “we would want to see vital signs and assessments and monitoring every shift.”  P. Post-hrg. Br. at 5 (citing Tr. at 21).  Petitioner submits that the surveyor did not, however, refer to any statute, guidance, position statement or other reference to support her contention that nursing facilities were required to take residents’ vital signs and assess them every shift.  Id. at 5.  Additionally, Petitioner asserts that the surveyor could cite no regulation governing nursing facilities that directs facilities to assess residents and take vital signs every shift.  Thus, Petitioner argues that CMS’s “findings of non-compliance rest solely” on the surveyor’s “testimony of what professional standards of practice should [be] require[d] based upon her personal knowledge and experience.”  Id.  I find this argument unpersuasive.  While Petitioner correctly states the surveyor’s direct and cross-examination testimony, Petitioner’s non-compliance is based on far more than simply the surveyor’s opinion of professional standards.  As discussed above, both R1 and R2 were residents requiring skilled care.  Admittedly, as skilled care residents, the facility was required to assess their vitals at least once a day, if not every shift.  Tr. at 141.  Additionally, there is no dispute that R1’s physician ordered that his O2 sat. be assessed each shift.  CMS Ex. 5 at 100.  The facility records for both R1 and R2 reflect that these guidelines were not followed.  Furthermore, it is well-settled that a SNF’s failure to follow its own policies and procedures amounts to noncompliance.  Emery Cty. Care & Rehab. Ctr., DAB No. 3006 at 11 (2020) (“The Board has repeatedly held that CMS may reasonably rely on a facility's protocols and treatment policies as evidencing the facility's own judgment of the care and services that are necessary at a minimum to

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attain or maintain its residents' highest practicable physical, mental, and psychosocial well-being.”) (additional citations omitted).

Petitioner also submits that R1 and R2 had not been in the facility long enough to have a comprehensive assessment and completed comprehensive care plan and thus there cannot be a determination of non-compliance with section 483.25.  P. Reply at 4.  In fact, Petitioner goes so far as to argue that the surveyor even agreed with this conclusion.  The surveyor’s testimony, however, does not support Petitioner’s assertion.  While the surveyor agreed that a violation must be based on the comprehensive assessment of the resident, the surveyor did not agree that the deficiency was dependent upon the comprehensive assessment and complete comprehensive care plan as Petitioner asserts. Tr. at 83.  The surveyor simply acknowledged that these two residents had not yet had their comprehensive assessment.  Id.  The facility cannot diminish its responsibility to provide comprehensive care to these residents simply because of their recent admission to the facility and the lack of a completed care plan.  While there may not have been a full assessment or a developed care plan, the facility was nevertheless required to follow its own procedures and the doctors’ orders for residents.

Accordingly, the total record reflects that the facility did not assess or monitor these residents to comply with its own procedures, physician orders, and with the requirements of 42 C.F.R. § 483.25.

Documentation and Notification of a Change in R1’s Condition

As an additional basis for determining Petitioner’s non-compliance with 42 C.F.R. § 483.25, CMS relies on a specific August 22, 2021 incident.  CMS asserts that when R1’s family visited him on the morning of August 22, 2021, they found vomit on his sheets.  A family member reported to the surveyor that the family had to search for a staff person to clean R1 and change his clothes.  CMS Ex. 4 at 3; CMS Ex. 6 at 3 ¶ 8; CMS Ex. 7 at 2.  CMS argues that around 3:00 p.m. that afternoon, a family member telephoned the facility and asked that the facility make R1’s doctor aware that R1 had vomited.  CMS Br. at 5; CMS Post-hrg. Br. at 2.  CMS submits that the family member called again at 7:00 p.m. to see if the facility had contacted R1’s doctor and learned that the doctor had not been contacted.  CMS Br. at 5; CMS Post-hrg. Br. at 2.  Both R1’s physician and nurse practitioner confirmed that they were never made aware that R1 vomited.  CMS Ex. 6 at 4 ¶ 11; CMS Ex. 7 at 10.

CMS argues “[v]omiting is a change in status that could be indicative of many serious health problems, particularly for a resident with the constellation of serious diagnoses that R1 suffered from.”  CMS Br. at 7.  CMS asserts that the facility’s failure to assess the resident’s condition and the failure to report R1’s change in condition violated an established resident care policy and professional standards of quality.  Id.

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CMS argues that the facility’s own “Notification of Changes” policy required staff to consult a resident’s physician immediately if there was a significant change in the resident’s physical, mental, or psychosocial status.  CMS Post-hrg. Br. at 12 (citing CMS Ex. 8 at 7).  Clearly, a failure to assess a resident’s change in condition and to report such change to a resident’s physician are significant factors in determining noncompliance with 42 C.F.R. § 483.25.  The overall evidence, however, is insufficient to support CMS’s argument.  While a family member reported that staff were requested to clean R1, the identity of the staff member(s) who responded to this request or who cleaned R1 was apparently never reported to the surveyor.  While the surveyor interviewed numerous staff members, no staff member confirmed knowledge of R1’s vomiting or acknowledged cleaning R1 because of the vomiting.

Additionally, I note that the surveyor testified, “The family member said she called the facility and notified RN (Registered Nurse) A that she would like Resident # 1’s doctor called about his vomiting.”  CMS Ex. 6 at 3 ¶ 8.  In the SOD, however, the surveyor noted that the family member stated that the family had recently discovered R1 had gallstones but could not have surgery due to his weak heart.  The family member reported that she thought of this after leaving the facility on August 22 and contacted RN A to let her know that R1 had gallstones and might need to be seen by his doctor.  CMS Ex. 4 at 3.  There is no mention that the family member wanted the nurse to let the doctor know about the vomiting incident.  Additionally, the surveyor’s interview notes dated September 3, 2021, document that the family member telephoned the facility on the afternoon of August 22 and told the nurse about R1’s gallstones and suggested that he might need to be seen by the doctor.  There is no reference to the family member telling the nurse that the doctor needed to see R1 because of the vomiting.  CMS Ex. 7 at 2.

While R1 may have experienced vomiting on the morning of August 22, 2021, there is insufficient evidence to corroborate that staff members were aware of R1’s change in condition and thus a failure to document or to contact R1’s physician cannot support a basis for Petitioner’s noncompliance.

In its Reply Brief, CMS focuses primarily on the family’s report concerning gallstones.  CMS asserts that the family’s directive to staff about gallstones, and their request to contact the doctor, should be viewed as a potential indicator of underlying or worsening health issues.  CMS Reply at 4.  I don’t find this argument compelling.  As Petitioner points out in its Reply Brief, the surveyor’s notes confirm that R1’s daughter contacted the facility to let them know R1 had gallstones and he might need to be seen by the doctor.  CMS Ex. 7 at 2; P. Reply at 6.  As Petitioner suggests, the family request was to ensure that the physician knew about the gallstone diagnosis and not that there was a change of condition related to his gallstones.  Id.  Petitioner’s argument is valid.  The evidence does not support a finding that a call to the facility reminding staff about R1’s previous diagnosis of gallstones is tantamount to a reported change in condition. 

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Furthermore, R1’s gallstone diagnosis was known to the facility upon his August 17, 2021 admission.  CMS Ex. 5 at 8.

The Board has recognized, however, that an ALJ need not address every disputed deficiency finding so long as the findings that the ALJ made support a legal basis for imposing a remedy, name a CMP.  Mercy Home Care, Sioux City, DAB No. 3044 at 22 (2021).  The Board has additionally held that an ALJ has discretion, as an exercise of judicial economy, not to address findings that are immaterial to the outcome of an appeal.  Alexandria Place, DAB No. 2245 at 27 n. 9 (2009).  Accordingly, considering the Board’s explanation in Alexandria Place, I do not find the allegation of Petitioner’s alleged failure to assess, document, or notify R1’s physician concerning the vomiting incident as material to the outcome of this case.  Petitioner’s deficiency for failing to obtain vitals for these two skilled care residents is sufficient to support the CMP that CMS seeks to impose.

The facility’s deficiencies posed immediate jeopardy to resident health and safety. 

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.  CMS’s determination as to the level of a facility’s noncompliance (which would include an immediate jeopardy finding) must be upheld unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  Heritage House, DAB No. 3035 at 21 (citing Franklin Care Ctr., DAB No. 2869 at 9 (2018)); Britthaven of Havelock, DAB No. 2078 at 29 (2007), aff’d, 910 F.3d 919 (7th Cir. 2018)).

The Board has observed repeatedly that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy existed and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004) (citing Koester Pavilion, DAB No. 1750 (2000)); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9 (2007)).  Accordingly, a finding of immediate jeopardy is presumed to be correct, and the SNF has the “heavy burden” to overturn it.  Crawford Healthcare & Rehab., DAB No. 2738 at 14-15 (2016).

Although Petitioner has argued that there was no intent to deceive or carry over vitals assessments, there is no dispute that the facility failed to fully assess R1 and R2’s vitals during the two-to-three-day period prior to their deaths on August 23, 2021, as the facility’s policy required for these skilled care nursing residents.  Partial assessment of vitals or the nurse simply repeating the “most recent” vitals for these residents did not comply with the facility’s requirement for assessing vitals for skilled care residents and did not substantially comply with 42 C.F.R. § 483.25.  As discussed above, I cannot find that the Petitioner’s failure to monitor these residents’ vital signs each shift or even daily led to their death.  The regulations, however, do not require that a resident be harmed for

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there to be a risk of immediate jeopardy to resident health and safety.  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012) (emphasis added).

Petitioner maintains that CMS’s determination of immediate jeopardy is clearly erroneous.  Petitioner asserts that CMS has failed to establish a “prima facie” case that Petitioner was not in substantial compliance with participation requirements and contends that there is no basis for a civil money penalty.

Citing Family Members of Miriam Ctr., DAB No. 2067 (2007),⁷ Petitioner asserts that the likelihood for serious harm must be probable, not just possible.  P. Br. at 9; P. Post-hrg. Br. at 14 (bolded emphasis added by Petitioner).  Additionally, citing “Appendix Q,” Petitioner maintains that “to cite immediate jeopardy, surveyors must determine that (1) noncompliance (2) caused or created a likelihood that serious injury, harm, impairment or death to one or more recipients could occur or recur, and (3) immediate action is necessary to prevent the occurrence or reoccurrence of serious injury, harm, impairment or death to one or more recipients.”  P. Br. at 10.  Petitioner argues that even if there was a deficient practice, the three components of immediate jeopardy have not been met.  Id.  While not identified or explained, I assume that Petitioner is referencing Appendix Q to CMS’s State Operations Manual.  Thus, Petitioner contends that not only was Petitioner in substantial compliance, but it also asserts that “[a]ny alleged noncompliance did not cause or contribute to the deaths of Residents # 1 and # 2 and did not create a likelihood that serious injury, harm, impairment or death would occur [to] any other facility resident.”  P. Post-hrg. Br. at 15.  Finally, Petitioner argues that immediate action was not necessary to prevent the occurrence or reoccurrence of serious injury, harm, impairment, or death to one or more residents.  Id.

Petitioner’s argument that the State Operations Manual precludes a finding of immediate jeopardy is unpersuasive.  In a recent case, a SNF challenging an immediate jeopardy finding raised a similar argument and argued that the immediate jeopardy finding did not meet the criteria of an existing CMS memorandum.  Copperas Cove LTC Partners, Inc., DAB No. 3049 at 40 (2021).  The Board cited its earlier decision in Pinecrest Nursing & Rehab. Ctr., DAB No. 2446 at 18 (2012) in rejecting this argument.  The Board pointed out that the CMS memorandum’s purpose was to guide surveyors in applying a regulatory standard, and not to define that standard.  Copperas Cove, DAB No. 3049 at 40 (citing Pinecrest, DAB No. 2446 at 18).  Citing Pinecrest, the Board explained that the applicable standard is found in 42 C.F.R. § 488.301, which defines immediate jeopardy as a situation in which a deficiency caused or was likely to cause serious harm, injury, or death to a resident.  Id. at 40.  Furthermore, the Board pointed out that it is not CMS’s burden to show that the violations met the regulatory criteria for an immediate jeopardy finding.  Rather, it is Petitioner’s burden to demonstrate that CMS’s immediate

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jeopardy findings were clearly erroneous.  Id. at 40-41 (citing 42 C.F.R. § 498.60(c)(2)); Miss. Care Ctr. of Greenville, DAB No. 2450 at 15 (2012), aff’d, Miss. Care Ctr. of Greenville v. U.S. Dept. of Health & Human Servs., 517 F. App’x 209 (5th Cir. 2013)).

Clearly, the facility’s deficiencies and noncompliance from August 21 to August 23, 2021 were likely to cause harm to residents who required daily monitoring of their vital signs.

Thus, Petitioner has not demonstrated that CMS’s finding of immediate jeopardy is clearly erroneous.

There is a basis for the imposition of a CMP, and the amount of the CMPs imposed by CMS is reasonable.

In this case, CMS imposed a $7,000 per‑day CMP for 24 days from August 17, 2021, through September 9, 2021, and a $250 per-day CMP for 28 days from September 10, 2021, through October 7, 2021, for a total CMP of $175,000.  CMS Ex. 1 at 2.  Regarding the amount of the CMPs, I must examine whether a CMP is reasonable by applying 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.  I note, however, that the absence of culpability is not a mitigating factor.  42 C.F.R. § 438(f)(4).  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.  Unless a facility contends that a particular regulatory factor does not support the CMP amount, I must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).

I must determine whether the amount of any CMP proposed is within reasonable bounds considering the purpose of the Act and regulations.  Liberty Commons Nursing & Rehab-Almance, DAB No. 2070 (2007).  The burden is on the facility to demonstrate that a reduction is necessary to make the CMP amount reasonable.  Heritage Plaza Nursing Ctr., DAB No. 2017 (2017).  In determining the reasonableness of the CMPs’ amounts, I assess the “reasonableness of the per-day amounts, not the total accrued amount . . . .”  Copperas Cove LTC Partners, Inc., DAB No. 3049 at 43 (2021) (citing Kenton Healthcare, LLC, DAB No. 2186 at 28 (2006)).

Petitioner asserts that CMS has not offered any evidence that it considered the factors set forth in 42 C.F.R. § 498.438(f) in determining the amount of the civil money penalty.  As the Board has noted, a facility bears the burden of proof on this issue and the Board will presume that CMS considered the regulatory factors in choosing a CMP amount and that

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those factors support the penalty imposed.  Consulate Healthcare of Jacksonville, DAB No. 3119 at 36 (2023); Crawford Healthcare & Rehab., DAB No. 2738 at 19 (2016).  First, Petitioner contends that with respect to the seriousness and scope of deficiencies, CMS’s allegations either do not constitute deficient practices or do not constitute immediate jeopardy.  P. Br. at 11; P. Post-hrg. Br. at 16-17.  As discussed above, I find that Petitioner did not substantially comply with Medicare requirements and that such deficiencies constituted immediate jeopardy to the health and safety of its residents.

Additionally, Petitioner submits that CMS did not evaluate Petitioner’s history of compliance.  P. Br. at 11; P. Post-hrg. Br. at 16-17.  Petitioner takes issue with CMS witness Dan McElroy’s testimony concerning a prior citation.  P. Br. at 11 (citing CMS Ex. 9 at 3); P. Post-hrg. Br. at 16-17 (same).  Mr. McElroy testified that the facility had one deficiency cited as G or above in the 3 years prior to the survey.  CMS Ex. 9 at 3.  As Petitioner correctly points out, Mr. McElroy does not identify the nature of the alleged violation or the relationship to the current deficiencies.

Finally, Petitioner maintains that there is no evidence CMS considered the facility’s financial condition.  P. Br. at 11; P. Post-hrg. Br. at 17.

As the Board pointed out in its decision in Crawford Healthcare & Rehab., DAB No. 2738 at 18-19 (2016), there is a presumption that CMS considers the regulatory factors in choosing a CMP amount and that those factors support the penalty imposed.  See also Brenham Nursing & Rehab. Ctr., DAB No. 2619 at 18 (2015).  “Accordingly, the burden is not on CMS to present evidence bearing on each regulatory factor, but on the [facility] to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.”  Crawford Healthcare, DAB No. 2739 at 19 (quoting Oaks of Mid-City Nursing & Rehab. Ctr., DAB No. 2375 at 26-27 (2011)).

With respect to the facility’s financial condition, it is well settled that the facility has the burden of proving, by a preponderance of the evidence, that paying the CMP would render it insolvent or would compromise the health and safety of its residents.  Van Duyn Home & Hosp., DAB No. 2368 (2011); Gilman Care Ctr., DAB No. 2357 (2010).  Petitioner has not claimed that it is unable to pay the penalty without compromising its solvency or the health and safety of its residents.

Considering the relevant factors, these CMP amounts are reasonable.  There is no dispute that over the course of the days preceding R1’s death, the facility failed to monitor and assess his condition in accordance with his physician’s order and with its own guidelines for skilled care patients.  Likewise, there is no dispute that during the days preceding his death, the facility did not monitor and assess R2 in accordance with its own procedures for skilled care residents.

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As explained above, the CMPs imposed by CMS are supported by the record.  The applicable CMP range for immediate jeopardy noncompliance is $6,888 to $22,584, and the applicable CMP range for non-immediate jeopardy noncompliance is $113 to $6,774.  42 C.F.R. § 102.3 (2021); 86 Fed. Reg. 62,928, 62,938 (Nov. 15, 2021).  The $7,000 per-day CMP falls within the lower half of the range for immediate jeopardy noncompliance, and the $250 per-day CMP falls in the lower half of the range for non-immediate jeopardy noncompliance.

Petitioner did not challenge the duration of the CMPs.

A SNF has the burden of showing “by a preponderance of the evidence that it returned to substantial compliance at a date earlier that CMS determined.”  Glenoaks Nursing Ctr., DAB No. 2522 at 22 (2013) (citing Golden Living Ctr. – Foley, DAB No. 2510 at 3, 28-29, 31 (2013)); Owensboro Place & Rehab. Ctr., DAB No. 2397 at 12 (2011) (citations omitted).  Petitioner did not challenge the duration of the CMP, as determined by CMS. The quality-of-care deficiency supports the duration the CMPs.

VI.   Conclusion

For the reasons set forth above, I affirm CMS’s determination and find that the evidence establishes that the facility’s deficiency posed immediate jeopardy to resident health and safety.  The CMPs imposed – the $7,000 per‑day CMP for 24 days from August 17, 2021, through September 9, 2021, and the $250 per-day CMP for 28 days from September 10, 2021, through October 7, 2021, for a total CMP of $175,000 – are reasonable.

Endnotes

¹  This case was initially assigned to another Administrative Law Judge and later assigned to the undersigned.

²  Scope and severity levels are used by CMS and state survey agencies when selecting remedies.  The scope and severity levels are designated by letters A through L.  A severity level of “J” indicates a deficiency for an isolated incident that poses immediate jeopardy to resident health or safety.

³  Petitioner filed its initial request for hearing in docket number C-22-55 on October 24, 2021, based on CMS’s determination of noncompliance and the imposition of remedies identified in the surveys on August 9, August 25, and September 10, 2021.  On January 17, 2022, Petitioner filed a second hearing request challenging the imposition of additional remedies identified because of the surveys on August 9, August 25, and September 10, 2021.  The January 17, 2022 hearing request was docketed as C-22-258 and assigned to Administrative Law Judge (ALJ) Lesley Weyn.  Because docket numbers C-22-55 and C-22-258 appeared to concern related parties and the same underlying facts and would likely rely on the same witnesses and documentary evidence, Judge Weyn ordered the consolidation of docket numbers C-22-55 and C-22-258.

⁴  Even though the parties jointly agreed that the issues before me involve only the cited deficiency at 42 C.F.R. § 483.25 (Tag F684), CMS devoted 10 pages of its Post Hearing Brief to a discussion of alleged deficiencies other than the deficiency contained in the parties’ stipulation.  Based on the parties’ stipulation, I make no finding with respect to whether Petitioner complied with these other alleged deficiencies, and I have not considered these as a basis for the CMP amount sought by CMS.

⁵  My findings of fact and conclusions of law appear as headings in bold italic type.

⁶  The August 17, 2021, entry was designated by a 24-hour time notation, and it is assumed that the facility used this same format for other documented entries.

⁷  I note that Petitioner improperly cited to the relevant case.  Instead of Family Member of Miriam Center, the case name should read Daughters of Miriam Ctr.