Patriot Rehabilitation and Wellness Center, DAB CR6556 (2024)

DECISION

Petitioner, Patriot Rehabilitation and Wellness Center, is a long-term care facility located in El Paso, Texas, that participates in the Medicare program.  Following three complaint-investigation surveys, completed on December 24, 2022, January 13, 2023, and February 14, 2023, the Centers for Medicare & Medicaid Services (CMS) found that the facility was not in substantial compliance with Medicare program requirements and denied payment for new admissions (among other remedies).

Petitioner appealed the February 14 survey only.  Petitioner does not challenge any of the specific survey findings but – taking a position that is incompatible with the two surveys it did not appeal and the February survey findings that it does not challenge – argues that the facility returned to substantial compliance before the February 14 survey date.

For the reasons discussed below, I find that, from January 25 through March 4, 2023, the facility was not in substantial compliance with Medicare program requirements, and CMS may therefore impose remedies.  I have no authority to review CMS’s choice of remedies.

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Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.1  

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys.  Facilities must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a); 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4); 42 C.F.R. § 488.332.;

Here, on December 24, 2022, January 13, 2023, and February 14, 2023, the Texas Department of Aging and Disability Services (state agency) completed complaint investigation surveys of the facility.  After each survey, CMS determined that the facility was not in substantial compliance with Medicare program requirements and imposed remedies.2

December 24, 2022 complaint survey.  In a survey completed on December 24, 2022, CMS determined that the facility was not in substantial compliance with four program requirements:

• 42 C.F.R. § 483.12(b)(5)(i)(A)(B), (c)(1)(4) (Tag F609 – freedom from abuse, neglect, and exploitation:  policies and procedures; reporting alleged violations) cited at scope and severity level E (pattern of substantial

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noncompliance that causes no actual harm with the potential for more than minimal harm);

• 42 C.F.R. § 483.21(b) (Tag F656 – comprehensive care plans) cited at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.24(a) (Tag F677 – quality of life:  activities of daily living) cited at scope and severity level E; and
• 42 C.F.R. § 483.25(d) (Tag F689 – quality of care:  accident prevention) cited at scope and severity level J (isolated instance of substantial noncompliance that poses immediate jeopardy to resident health and safety).

CMS Exs. 1, 5, 21.

In a letter dated January 10, 2023, the state agency notified the facility that, because of the facility’s substantial noncompliance with section 483.25, one of its residents had received “substandard quality-of-care.”  CMS Ex. 17 at 2.  This determination was more than justified, given how serious the deficiency was.  Staff did not supervise a resident who had a diagnosis of dysphagia (difficulty swallowing).  Even after he experienced a choking incident on December 9, 2022, staff did not adequately supervise him.  On December 11, 2022, he had another choking incident, and he died.  CMS Ex. 1 at 19.

CMS imposed enforcement remedies:  a per-instance civil money penalty (CMP) of $22,490, based on the quality-of-care deficiency (42 C.F.R. §483.25(d)); potential termination of its Medicare provider agreement, if it did not achieve substantial compliance before June 24, 2023; and denial of payment for new admissions (DPNA), beginning January 25, 2023 (15 days from the January 10 notice), and continuing until the facility achieved substantial compliance or its provider agreement was terminated.  CMS Ex. 5; see 42 C.F.R. § 488.402(f)(4) (requiring a 15-day notice before the enforcement action goes into effect).

In a notice letter, dated January 13, 2023 (delivered by fax), CMS advised the facility of the survey findings, the remedies imposed, and the facility’s appeal rights.  CMS Ex. 5; P. Ex. 1.

Petitioner did not appeal.  The December 24 survey findings are therefore final and binding, and the remedies imposed went into effect and cannot be challenged.  42 C.F.R. § 498.20(b).

January 13, 2023 complaint survey.  Responding to another complaint, surveyors returned to the facility in January 2023.  Based on that complaint-investigation survey,

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completed on January 13, 2023, CMS determined that the facility was not in substantial compliance with an additional program requirement:  42 C.F.R. § 483.80(a) (Tag F880 – infection control), cited at scope-and-severity level D.  CMS Exs. 2, 6.

Based on this survey finding, CMS imposed additional enforcement remedies:  a per-instance CMP of $15,000; and a directed plan of correction.  The DPNA continued and the potential termination remained in effect.  CMS Ex. 6.

In a notice letter, dated February 10, 2023 (delivered by fax), CMS advised the facility of the survey findings, the remedies imposed, and the facility’s appeal rights.  CMS Ex. 6; P. Ex. 3.

Again, Petitioner did not appeal.  The January 13 survey findings are therefore final and binding, and the remedies imposed went into effect and cannot be challenged.  42 C.F.R. § 498.20(b).

February 14, 2023 complaint survey.  Based on a third complaint-investigation survey, completed on February 14, 2023, CMS determined that the facility was not in substantial compliance with three program requirements:

• 42 C.F.R. § 483.12(b)(5)(i)(A)(B), (c)(1)(4) (Tag F609 – freedom from abuse, neglect, and exploitation:  policies and procedures; reporting alleged violations) cited at scope and severity level D (repeat deficiency);
• 42 C.F.R. § 483.25(i) (Tag F695 – quality of care:  respiratory care) cited at scope and severity level D; and
• 42 C.F.R. §§ 483.20(f)(5) and 483.70(i)(1)-(5) (Tag F842 – administration:  medical records) cited at scope and severity level E.

CMS Exs. 4, 7, 22.

Based on the survey findings, the state agency recommended that CMS continue the previous remedies (DPNA and potential termination).  CMS agreed.  CMS Ex. 20.

In a notice letter, dated March 17, 2023, CMS advised the facility that the deficiencies cited during the December 24, January 13, and February 14 surveys were corrected and that the facility achieved substantial compliance with program requirements on March 5, 2023.  The DPNA remained in effect through March 4, 2023.  CMS Ex. 7.

Rule 56(f) order.  The parties submitted pre-hearing briefs (CMS Br.; P. Br.).  With its brief, CMS submitted 24 exhibits (CMS Exs. 1-24).  Petitioner submitted 11 exhibits (P. Exs. 1-11).

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Based on my initial review of the parties’ submissions, it appeared that no material facts are in dispute, that an oral hearing would serve no purpose, and that summary judgment or a decision on the written record might be appropriate.  Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, I issued an order, dated January 22, 2024, identifying what appear to be material facts not in dispute and giving the parties notice and the opportunity to respond.  Ruling and Rule 56(f) Order (e-file # 8).

In response, the parties asked that the matter be decided based on the written record, without an oral hearing.  Joint Request that the Matter be Decided on the Written Record (e-file # 10); see 42 C.F.R. § 498.66(d).  The parties also filed reply briefs (CMS Reply; P. Reply).

Exhibits.  Petitioner objected to my admitting CMS Exs. 1, 2, 3, 4, and 8.  In my Ruling and Rule 56(f) Order, I found that the exhibits are admissible.  For the reasons explained in that ruling, I admit into evidence CMS Exs. 1-24.  Ruling and Rule 56(f) Order.  In the absence of any objections, I admit into evidence P. Exs. 1-11.

Issue

Petitioner does not challenge any of the February 14, 2023 survey findings.  The facility was therefore not then in substantial compliance with 42 C.F.R. §§ 483.12(b)(5), 483.25(i), 483.20(f)(5), and 483.70(i).

Petitioner argues that, notwithstanding the January 13 and February 14 survey findings, CMS may not impose a DPNA because the facility achieved substantial compliance on January 11, 2023.  Thus, the sole issue before me is whether, from January 25 (when the DPNA went into effect) through March 4, 2023, the facility was in substantial compliance with Medicare program requirements.  P. Amend. Br. at 1.

I have no authority to review CMS’s choice of remedy.  42 C.F.R. §§ 488.408(g)(2); 498.3(d)(14); see Beverly Health & Rehab. Servs., Inc. v. Thompson, 223 F. Supp. 2d 73, 111 (D.D.C. 2002) (holding that the “determination of what remedy to seek is beyond challenge”).

1. The facility has not established that it achieved substantial compliance prior to March 5, 2023.

Petitioner’s burden.  Once a facility has been found to be out of substantial compliance (as Petitioner was here – three times), it remains so until it affirmatively demonstrates that it has returned to substantial compliance.  Ridgecrest Healthcare Ctr., DAB No. 2493 at 2-3 (2013); Taos Living Ctr., DAB No. 2293 at 20 (2009); Premier Living & Rehab Ctr., DAB No. 2146 at 3 (2008); Lake City Extended Care, DAB No. 1658 at 12-

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15 (1998).  The burden is on the facility to prove that it is back in compliance, not on CMS to prove that deficiencies continue to exist.  Asbury Care Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002).

The facility must show that the incidents of noncompliance have ceased and that it has implemented appropriate measures to ensure that similar incidents will not recur.  Libertywood Nursing Ctr., DAB No. 2433 at 15 (2011) (citing Life Care Ctr. of Elizabethton, DAB No. 2367 at 16 (2011)); accord 42 C.F.R. § 488.454(a) and (e); Hermina Traeye Memorial Nursing Home, DAB No. 1810 at 12 (2002) (holding that, to be found in substantial compliance earlier than the date of the resurvey, the facility must supply documentation “acceptable to [CMS]” showing that it was in substantial compliance and was capable of remaining in substantial compliance on the earlier date); Cross Creek Care Ctr., DAB No. 1665 (1998).  A facility’s return to substantial compliance usually must be established through a resurvey.  42 C.F.R. § 488.454(a); Ridgecrest, DAB No. 2493 at 2-3.

Petitioner’s argument:  criteria for imposing a DPNA not met.  Petitioner argues that CMS may not impose a DPNA unless a certain condition is met:  1) the facility remains out of substantial compliance for three months after the last day of the survey identifying the noncompliance; or 2) the survey agency has cited the facility with substandard quality of care on the last three consecutive standard surveys.  P. Reply at 2.  Petitioner misunderstands the regulation.  If either of those conditions are met, CMS must impose a DPNA.  42 C.F.R. § 488.417(b).  However, CMS may impose a DPNA whenever a facility is not in substantial compliance with program requirements.  42 C.F.R. § 488.417(a); see 42 C.F.R. § 488.408(a), (d)(1).  And, as noted above, I may not review CMS’s choice of remedy.  42 C.F.R. § 488.408(g)(2); 498.3(d)(14); Beverly, 223 F. Supp. 2d at 111 (holding that the “determination of what remedy to seek is beyond challenge”).

Petitioner’s argument:  intervening state survey findings of compliance.  Petitioner also points to some follow-up visits/investigations, completed on January 18 and February 10, 2023, and argues that they establish that the facility was in substantial compliance “before the state agency entered the building for the February 14, 2023 survey,” so CMS should have “issued a new notice with regard to DPNA in connection with the February 14, 2023 [survey], if that was its remedy of choice.”  P. Reply at 2.

Petitioner points to three state agency “reports of contact” and claims that they establish that the facility achieved substantial compliance at various points:

• A report of contact from the state agency describing a “complaint investigation; incident investigation” conducted from January 17-18, 2023.  Surveyors went to the facility to investigate a complaint and to follow-up on the deficiencies cited on

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December 24, 2022.  The complaint was apparently not substantiated because no new deficiencies were cited.  P. Ex. 2.

• Another report of contact from the state agency describes a “complaint investigation; incident investigation” also conducted on January 17, 2023.  According to its summary, the state agency conducted an “on-site” and “non-onsite follow up,” looking at the deficiencies cited on December 24, 2022.  Those deficiencies had apparently been corrected because no deficiencies were cited.  P. Ex. 5 at 2.
• A report of contact from the state agency describing a “follow-up to complaint investigation”; and “follow-up to incident investigation,” conducted on February 10, 2023.  P. Ex. 4 at 1.  According to its summary, the state agency conducted the revisit survey “for all previous deficiencies cited on January 13, 2023.”  P. Ex. 4 at 2.  In fact, one deficiency was cited on January 13 (infection control).  Petitioner makes much of this statement:  “The facility is in compliance with all regulations surveyed as of 02/06/23.”  Id.  Inasmuch as the surveyor looked at just one regulation, this does not establish that the facility was in substantial compliance with all program requirements.

These reports do not establish that the facility achieved substantial compliance.  First, even if they established that the state agency found the facility in substantial compliance on the dates Petitioner claims (which they do not), these were not CMS’s findings.  “CMS’s findings of noncompliance take precedence over those made by the State.”  West Texas LTC Partners, Inc., DAB No. 2652 at 18 (2015); Lopatcong Ctr., DAB No. 2443 at 12-13 (2012) (finding that the state agency’s determination that the facility was in substantial compliance is not binding on CMS); 42 C.F.R. § 488.452(a)(2)(i).

Second, as the Departmental Appeals Board has explained, a finding that previously-cited deficiencies have been corrected is not the same as a finding that the facility has achieved substantial compliance.

Even assuming the State agency determination is correct as to correction of the previously cited deficiencies (and [the facility] has not provided any independent evidence it is), the Board has made it clear that “a finding that deficiencies have been corrected is not the same as a determination that a [facility] has achieved substantial compliance with all participation requirements.”

West Texas at 18 (citing Meadowbrook Manor – Nashville, DAB No. 2173 at 13 (2008), aff’d sub. nom. on other grounds, Butterfield Healthcare II, Inc. v. Johnson, No. 1:08cv-03604 (N.D. Ill. June 16, 2009)).  In Meadowbrook, the Board rejected the argument that

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a post-certification revisit report found the facility in substantial compliance, where the report contained no statement to that effect but indicated that a deficiency from the prior survey had been corrected.  See West Texas at 18.

Third, even if I agreed that the facility achieved short-term substantial compliance (which I do not), short-term compliance does not establish that the facility has returned to substantial compliance.  A facility is required to maintain substantial compliance.  In enacting nursing home reform, Congress expressed particular frustration with facilities’ erratic compliance histories.  See H.R. Rep. No. 100-391(l), 100th Cong., 1st Sess. at 471 (1987) (expressing the goal of eliminating the “yo-yo” or “roller coaster” phenomenon); Florida Agency for Health Care Admin. v. Bayou Shores SNF, LLC, 88 F.3d 1297 at 1325-26 (2016); Heartland Manor at Carriage Town, DAB No. 1664 (1998).

Finally, even a cursory review of the record in this case establishes that the facility was not in substantial compliance prior to the February 14 survey, and it did not claim that it would correct all of the cited deficiencies before March 5:

42 C.F.R. § 483.12(c).  In response to allegations of abuse, neglect, exploitation, or mistreatment, the facility must, among other requirements, report the event to the state survey agency.  It must also investigate and report to the state agency the results of its investigations.

On February 3, 2023, a resident, who suffered from a traumatic subdural hemorrhage with loss of consciousness, muscle wasting and atrophy, muscle weakness, dysphagia, abnormalities of gait and mobility, and lack of coordination, eloped from the facility.  More than two hours after he disappeared, a third party reported that he was at his home (a two-hour walk from the facility).  Notwithstanding the requirements of section 483.12(c) and its own policies, the facility did not report the elopement nor the results of its investigation (if any) to state officials.  CMS Ex. 22 at 2-4; CMS Ex. 8 at 6-8; CMS Ex. 9 at 2; CMS Ex. 13.

42 C.F.R. § 483.25(i).  Resident 8 was an 85-year-old man, admitted to the facility on February 8, 2023, suffering from a traumatic brain injury, delirium with acute psychosis, pulmonary disease for hypoxia, encephalopathy, and Parkinson’s disease.  CMS Ex. 12 at 1, 2.   He had no physician order for supplemental oxygen.  His care plan did not call for supplemental oxygen.  CMS Ex. 10 at 1-5.  Yet, staff had been administering supplemental oxygen from the time of his admission.  They did not obtain a physician order until February 13.  CMS Ex. 4 at 5-8.

Resident 7 was an 83-year-old woman, suffering from chronic obstructive pulmonary disease and other serious conditions.  Her physician ordered continuous oxygen at all times.  Yet, contrary to her physician order and the facility’s policy, on February 11, 2023, she was not administered oxygen because the necessary tubing was missing.  The

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resident became cyanotic (blue fingertips due to not enough oxygen in the blood).   CMS Ex. 4 at 8-12; CMS Ex. 11 at 25. 

The facility submitted a plan of correction in which it conceded that all residents could potentially be affected by the deficient practice.  In addition to addressing the specific problems with Residents 7 and 8, the facility promised to implement specific actions to assure that the problems would not recur.  The facility set its completion date as March 5, 2023.  CMS Ex. 22 at 5-6.

42 C.F.R. § 483.20(f)(5) and 483.70(i)(1)-(5).  The facility must maintain medical records that are complete, accurate, readily accessible, and systematically organized.  The surveyors cited instances of the facility’s inadequate record-keeping.  These included:

• As discussed above, the facility did not obtain a physician order for Resident 8’s oxygen.
• Resident 7 (discussed above) required weekly skin assessments; yet within the previous six weeks, staff had documented only two such assessments.
• Staff did not document that physician-ordered wound care was provided to Resident 1.

CMS Ex. 1 at 12-18.  In its plan of correction, the facility agreed that all residents could be affected by the deficient practice.  In addition to addressing the specific problems of Residents 1 (who no longer resided at the facility), 7, and 8, it promised to implement specific actions to assure that the problems would not recur.  Again, the facility promised that the corrections would be completed on March 5, 2023.  CMS Ex. 22 at 12-18.

As noted above, a facility’s return to substantial compliance usually must be established through a resurvey.  42 C.F.R. § 488.454(a).  However, if a facility supplies documentation to CMS showing that it corrected its deficiencies and is capable of remaining in substantial compliance, CMS may find that it has returned to substantial compliance before a revisit.  42 C.F.R. § 488.454(e).  Here, CMS accepted the facility’s documentation and assurances that, effective March 5, 2023, the facility achieved substantial compliance and demonstrated that it was capable of remaining in substantial compliance.

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Conclusion

The undisputed evidence establishes that, from January 25 through March 4, 2023, the facility was not in substantial compliance with Medicare program requirements.  CMS may therefore impose remedies, including a denial of payment for new admissions.  I have no authority to review CMS’s choice of remedy.