Morningside Manor, DAB CR6565 (2024)

DECISION

Petitioner, Morningside Manor, is a skilled nursing facility (SNF), located in San Antonio, Texas, that participates in the Medicare program. Following an inspection during a survey completed on November 5, 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 per-instance civil money penalty (CMP) of $21,845 for a finding of noncompliance at 42 C.F.R. § 483.24(a)(3). CMS additionally imposed a denial of payment for new Medicare and Medicaid admissions (DPNA) from December 7, 2021 to January 16, 2022 based on Petitioner’s substantial noncompliance. CMS Ex. 2 at 1.

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

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I. Procedural and Statutory Background

Statutory Background

The Social Security Act (Act) sets forth requirements for SNFs or long-term care (LTC) 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 the participation requirements in 42 C.F.R. Part 483, subpart B. 42 C.F.R. §§ 483.1, 488.400. 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 survey 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).

Procedural Background

Here, surveyors from Texas Health and Human Services (state agency) completed a complaint investigation on November 5, 2021. As a result of the survey, the state agency determined Petitioner was not in substantial compliance with multiple program requirements. CMS’s January 5, 2022 Imposition of Remedies notification lists the following Medicare/Medicaid Requirements for which the facility was not in compliance:

• 42 C.F.R. § 483.12(b)(1)-(3) (Tag F607) (Develop/Implement Abuse/Neglect Policies) at scope and severity (s/s) level “D.”
• 42 C.F.R. § 483.12(c)(1)-(4) (Tag F609) (Reporting of Alleged Violations) at s/s level “D.”
• 42 C.F.R. § 483.21(b)(1) (Tag F656) (Develop/Implement Comprehensive Care Plan) at s/s level ‘D.”

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• 42 C.F.R. § 483.24(a)(3) (Tag F678) (Cardio-Pulmonary Resuscitation (CPR)) at s/s level “J.”2
• 42 C.F.R. § 483.25 (Tag F684) (Quality of Care3) at s/s level “J.”
• 42 C.F.R. § 483.25(e)(1)-(3) (Tag F690) (Bowell/Bladder Incontinence, Catheter, UTI) at s/s level “E.”
• 42 C.F.R. § 483.25(l) (Tag F698) (Dialysis) at s/s level “D.”

Based on the findings of substantial noncompliance with 42 C.F.R. § 483.24(a)(3), CMS imposed a $21,845 per-instance CMP for the instance on October 27, 2021, as described at the cited deficiency. CMS Ex. 1 at 2. CMS also imposed a DPNA from December 27, 2021, through January 16, 2022. CMS Ex. 2 at 1. CMS informed Petitioner that Petitioner returned to substantial compliance with the participation requirements on January 17, 2022. CMS Ex. 2 at 1.

Petitioner timely requested review.

CMS submitted a prehearing brief (CMS Br.) with 27 exhibits (CMS Exs. 1-27) and a post-hearing brief (CMS Post-Hrg. Br.). Petitioner filed a prehearing brief (P. Br.) with 38 exhibits (P. Exs. 1-38) and a post-hearing brief (P. Post-Hrg. Br.).

On January 17, 2024, I convened a prehearing conference (PHC) via video conference. Following the PHC, I issued a Notice of Hearing (NOH) in which I ruled on outstanding objections to exhibits. Inasmuch as CMS did not file objections to Petitioner’s exhibits, I admitted Petitioner’s Exhibits 1 to 38 into evidence.

Petitioner, however, objected to CMS Exhibits 1 through 4 and to CMS Exhibits 16 and 27. Specifically, Petitioner objected to CMS Exhibit 1, which is CMS’s Imposition of Remedies letter of January 5, 2022, and to CMS Exhibit 2, which is CMS’s February 23, 2022 letter confirming Petitioner’s substantial compliance, in the event that CMS offered those documents for anything other than to show notice. Petitioner contended that it

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objected to the documents if they were offered to establish a deficient practice. Petitioner’s Objections to CMS’s Proposed Exhibits (P. Obj’s)

Additionally, Petitioner objected to CMS Exhibit 3, which is the Statement of Deficiencies (SOD), and CMS Exhibit 4, which is Surveyor Milton Ayala’s sworn declaration, if those documents were offered as evidence of a regulatory violation.

I overruled Petitioner’s objections to CMS Exhibits 1, 2, 3, and 4. The Federal Rules of Evidence do not apply in this proceeding. I have broad discretion and may receive evidence, including hearsay, that would be inadmissible under the Rules. 42 C.F.R. § 498.61. I am required to “inquire fully into all of the matters at issue” and to admit any documents that are relevant and material. 42 C.F.R. § 498.60(b). This necessarily includes the SOD and CMS’s letters imposing remedies. As to the SOD, this document sets out the survey findings on which CMS based its enforcement actions that are the subject of appeal and, for that reason, it is “unquestionably relevant and material evidence.” Avalon Place Trinity, DAB No. 2819 at 38 (2017). As to CMS’s letters imposing remedies, they are relevant and material because they set forth the remedies imposed by CMS based on CMS’s findings. As such, CMS Exhibits 1, 2, and 3 are relevant and material and must be admitted. I also note that, even under the Federal Rules of Evidence, the documents would be admissible.

Further, I overruled Petitioner’s objections and admitted CMS Exhibit 4. Petitioner had the opportunity to address all the matters underlying its objection during its cross examination of the surveyor. Also, I found that the written direct testimony is relevant and material. 42 C.F.R. § 498.60(b).

I sustained Petitioner’s objection to CMS Exhibit 16 and noted that CMS did not oppose this objection. I found that the proposed exhibit is irrelevant as it relates to a policy unrelated to the stipulated issues herein. Thus, I found CMS Exhibit 16 inadmissible.

Petitioner also objected to CMS Exhibit 27 on the basis that it contains findings regarding alleged neglect and administration tags that were not cited and thus are not relevant and admissible under the Federal Rules of Evidence. See Fed. R. Evid. 401, 402, 403. I overruled Petitioner’s objections to CMS Exhibit 27. To view the statements and information in CMS Exhibit 27 in their full context, I found it necessary to admit CMS Exhibit 27 in its entirety into the record. 42 C.F.R. § 498.61.

Therefore, I admitted Petitioner’s Exhibits 1-38 and CMS Exhibits 1-15 and 17-27.

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II. Issues

The issues before me are:

1. Whether Petitioner was in substantial compliance with Medicare program requirements;
2. If the facility was not in substantial compliance with program requirements, did its deficiencies then pose immediate jeopardy to resident health and safety; and
3. If the facility was not in substantial compliance, is the per-instance civil money penalty of $21,845 reasonable and the DPNA authorized?

III. Findings of Fact, Conclusions of Law, and Analysis4

1. Petitioner was not in substantial compliance with 42 C.F.R. § 483.24(a)(3) (Tag F678).

Applicable Regulations and Facility Policies

42 C.F.R. § 483.24(a)(3) mandates that SNFs participating in the Medicare program must “provide basic life support, including CPR, to a resident requiring such emergency care prior to the arrival of emergency medical personnel and subject to related physician orders and the resident’s advance directives.”

Petitioner’s Director of Nursing (DON) confirmed that the facility uses the American Heart Association Guidelines on CPR as the facility’s CPR policy. CMS Ex. 3 at 47. The Facility Policy, Emergency Procedure – Cardiopulmonary Resuscitation provides:

If an individual (resident, visitor, or staff member) is found unresponsive and not breathing normally, a licensed staff member who is certified in CPR/BLS [(Basic Life Support)] shall initiate CPR unless:

a. It is known that a Do Not Resuscitate (DNR) order that specifically prohibits CPR and/or external defibrillation exists for that individual; or

b. There are obvious signs of irreversible death (e.g., rigor mortis).

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CMS Ex. 17 at 1.

The policy also provides that “early delivery of a shock with a defibrillator plus CPR within 3-5 minutes of collapse can further increase chances of survival.” Id.

Relevant Facts Related to Resident # 1

Resident # 1 (R1) was a 68-year-old female, who was first admitted to the facility on October 5, 2021. CMS Ex. 5 at 1. At the time of her admission, she was recovering from COVID-19-related pneumonia with monoclonal antibody treatment. P. Ex. 6 at 31. Her admitting diagnoses included, but were not limited to, non-ST elevation myocardial infarction (or heart attack), low blood pressure, Type-2 diabetes mellitus with unspecified complications, cognitive communication deficit, pulmonary hypertension, respiratory failure with hypoxia, hypotension following dialysis, atrial fibrillation, chronic anemia, muscle weakness, arteriosclerotic cardiovascular disease, end-stage renal disease requiring dialysis, fluid overload, and anemia in chronic kidney disease. CMS Ex. 5 at 2. R1 was also admitted with a full code status which meant that she requested CPR, and the goal was for her to return to her community upon her discharge. CMS Ex. 7 at 1, 8. R1 received dialysis regularly. CMS Ex. 7 at 12. There was an order requiring Petitioner’s staff to check “vital[] signs [every] shift for 24-hours post-dialysis[.]” P. Ex. 9 at 2.

On October 7, 2021, R1 suffered an extreme hypotension or low blood pressure episode while at the dialysis clinic and was admitted to the hospital. P. Ex. 6 at 29. While at the hospital, she underwent a coronary artery stent placement to her right groin area. P. Ex. 6 at 29. She returned to the facility on October 16, 2021.

R1 required dialysis treatment three days a week. P. Ex. 6 at 34. Her last dialysis treatment was on October 25, 2021, and she was scheduled for dialysis again on October 27, 2021. CMS Ex. 4 at 9. On October 26, 2021, at about 3:00 p.m., Petitioner’s staff checked R1’s vital signs. P. Ex. 6 at 2. That same day at 9:41 p.m., Petitioner’s staff checked R1’s blood pressure. P. Ex. 8 at 1. At approximately 4:21 a.m. on October 27, 2021, certified nursing assistant (CNA) B was conducting rounds and found R1 lying unresponsive in her bed with blood stains around her and alerted registered nurse (RN) A, who was on duty. CMS Ex. 4 at 8; P. Ex. 38-5, -6. RN A, who was at the nurses’ station, went to R1’s room at 4:22:03 a.m. and instructed CNA B to get help. CMS Ex. 4 at 9; P. Ex. 38-6. At approximately 4:22:15 a.m., RN A left the room in which R1 was located and did not return until approximately 4:27 a.m. P. Exs. 38-6, 38-13. At approximately 4:25:52 a.m., licensed vocational nurses (LVNs) C and D entered R1’s room to initiate CPR on R1. P. Ex. 38-11. At approximately 4:35 a.m., LVN D brought an automatic external defibrillator (AED) and continued providing CPR. P. Ex. 38-24. While the incident was occurring, RN A called emergency medical services (EMS). CMS Ex. 4 at 7, 9; P. Ex. 11 at 1. When EMS arrived, they took over administering CPR until they

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ultimately declared her dead at 4:53 a.m. P. Ex. 6 at 1; P. Ex. 11 at 1; P. Ex. 12 at 2; P. Ex. 38-26; CMS Ex. 4 at 10.

In a statement dated October 27, 2021, and submitted by Petitioner, RN A stated that after finding R1 unresponsive, she sent the CNA to get help and she initiated CPR. P. Ex. 12 at 1. In a telephone interview with the surveyor, RN A also asserted that upon entering R1’s room, she called 911 and told the CNA to get other nurses and then she began CPR and administering oxygen to R1 with another nurse. CMS Ex. 4 at 7. However, RN A’s description of the events prior to the arrival of EMS is contradicted by Petitioner’s evidence. Petitioner’s video evidence reflects that RN A went into R1’s room for approximately 12 seconds and then left the room. RN A did not return to R1’s room until 4:27 a.m., after LVNs C and D had already initiated CPR. P. Ex. 38-11.

After R1’s death, the DON conducted an internal investigation but did not complete a formal incident report. CMS Ex. 3 at 10. Despite being aware of the inconsistencies between RN A’s documentation and the video of the incident, the DON concluded that no neglect occurred on the part of the nursing staff. CMS Ex. 27 at 2.

Discussion

CMS asserts that pursuant to 42 C.F.R. § 483.24(a)(3), SNFs participating in the Medicare program must “provide basic life support, including CPR, to a resident requiring such emergency care prior to the arrival of emergency medical personnel and subject to related physician orders and the resident’s advance directives.”

Relying on this regulation, CMS submits that once CNA B discovered R1 was unresponsive, the facility did not initiate CPR for over four minutes and did not begin AED procedures for 14 minutes. CMS Br. at 8; CMS Ex. 3 at 42-43; CMS Ex. 27 at 1.

While Petitioner does not dispute the four-minute delay in initiating CPR or the 14‑minute delay in initiating AED procedures, Petitioner argues that there was no unnecessary delay on the part of the facility in responding to R1 and in providing CPR. P. Br. at 8. Petitioner maintains that the CNA entered and left R1’s room at 4:21 a.m. and that the LVNs entered the room and began CPR at 4:25 a.m. P. Br. at 8. Petitioner argues that there is always going to be some amount of time required, even in a hospital setting with many more staff and much more readily available “code” equipment, for individuals to respond to a code or call for help. Petitioner further asserts that the facility “with many more challenges than those which exist in the hospital setting, it took no more than 4 minutes to start CPR for a resident who, in all likelihood (based on the assessments of the nurses who saw the resident), was already deceased and for whom CPR was going to be little more than an exercise in futility.” P. Br. at 9.

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In support of its argument of the futility of administering CPR and AED, Petitioner submitted the testimony of LVN C and D: the LVNs who initiated CPR for R1. LVN C states that when she entered the room, she found R1 was unresponsive, pale with purple lips, and without a pulse. P. Ex. 11 at 1, 29. LVN D also reported during the facility investigation that when she entered R1’s room, she found that R1 had no pulse, no respirations, or breath sounds, and her extremities were cool to the touch. P. Ex. 11 at 2, 30. Petitioner also relies on the testimony of Dr. R. Lynn Rea, an Emergency Medicine physician, who reviewed R1’s medical records and other records related to the circumstances of October 27, 2021. Dr. Rea opined that R1 suffered a spontaneous failure of the dialysis seal at her shunt/fistula site which allows access to her vascular system. P. Ex. 25 at 3, 5. Dr. Rea opined that the only possible way that R1’s life could have been saved was for a staff member to have walked into the room at the exact time R1’s bleeding started. P. Ex. 25 at 5.

In essence, Petitioner argues that there was no way that the facility could have foreseen the failure of the dialysis seal and that CPR would have been futile regardless of when it was performed. P. Ex. 25 at 6. However, the Departmental Appeals Board (Board) recognizes a “bright-line rule” with respect to treating residents in distress: a patient without a do-not-resuscitate order must be administered CPR unless that resident is irreversibly dead. Woodland Oaks Healthcare Facility, DAB No. 2355 at 16 (2010). Nursing staff may not disregard an advance directive because they determine that CPR would not likely save the resident, a position that has no support in the regulations or standard of care. Even though Petitioner asserts the futility of the CPR, the Board has pointed out that one of CPR’s goals is to reverse clinical death, “even though that outcome is achieved in only a minority of cases.” Id. (quoting John J. Kane Reg’l Ctr.-Glen Hazel, DAB No. 2068 at 17 (2007)).

Without doubt, the nursing staff encountered a dire situation beginning at 4:21 a.m. on October 27, 2021. Based upon the facts, there is the possibility that even if CPR was administered immediately, it may not have saved R1’s life. I need not make that determination. What I can determine, however, is whether facility staff failed to immediately provide basic medical care to R1 in disregard of its own CPR policy.

I note several discrepancies in Petitioner’s evidence and conflicting accounts of the nursing staff who encountered R1’s condition on October 27. CNA B testified that she entered R1’s room at 4:00 a.m. and called R1’s name. P. Ex. 31 at 1. She testified that the room was dark and R1 did not respond. Id. When she approached the bed, she saw blood stains. Id. She recalled that she ran out of the room to get the RN. Id. CNA B also testified that R1 was not breathing, and RN A began CPR while CNA B ran downstairs to get other nurses. Id.

This testimony is contradicted by Petitioner’s evidence. The video footage of the hallway showing the nurses’ station and the hallway outside R1’s room shows CNA B making

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rounds with her vitals assessment equipment. The video shows that she enters R1’s room at 4:21:35 a.m. and leaves R1’s room at 4:21:54 a.m. and then runs toward the nurses’ station. P. Exs. 38-5, 38-6. While there is no audio for the recording, CNA B appears to be calling out to the RN seated at the nurses’ station. P. Ex. 38-6. The video shows the RN entering R1’s room at 4:22:03 a.m. and exiting at 4:22:15 a.m. P. Ex. 38-6. CNA B follows the RN out of the room and then walks down the hallway with the vitals assessment equipment. P. Ex. 38-6. Contrary to CNA B’s sworn declaration, the RN does not remain in R1’s room to begin CPR. The RN returned to the nurses’ station and is shown on the telephone. Id. At 4:24:48 a.m., another staff member who appears to be one of the LVNs, and who later administers CPR to R1, arrives at the nurses’ station and remains there with the RN. P. Ex. 38 at 10. The LVN appears to be texting with her phone. At 4:25:25 a.m., another staff member who is apparently one of the two LVNs who later administers CPR to R1 appears to be walking down the hall toward the nurses’ station. Id. The RN continues her phone call and the two LVNs stand at the nurses’ station briefly, apparently awaiting direction from the RN. They then walk down the hall and enter R1’s room at 4:25:53 a.m. P. Ex. 38-11. While the RN continued to speak on the phone, an additional staff member walked down the hall and entered R1’s room at 4:26:36 a.m. P. Ex. 38-12. It was not until 4:27:15 a.m. that the RN again entered R1’s room while still talking on a cell phone. P. Ex. 38-13. Thereafter, the video shows the RN and other staff members walking in and out of the room at various times. The AED was brought to the room at 4:35:03 and EMS and the police arrived and entered the room at 4:42:26 a.m. P. Ex. 38-26.

I note that Petitioner’s witness, Dr. Lynn Rea, opines in a footnote to the declaration that the RN would not have been able to immediately start CPR by herself as the Basic Life Support (BLS) sequence from the American Heart Association (AHA) requires a sequence that takes more than one person to perform. P. Ex. 25 at 7. Petitioner submitted a document identified as a CMS publication concerning CPR. P. Ex. 1. The document references the AHA’s guidelines for initiating CPR. While the document confirms that the AHA urges all potential rescuers to initiate CPR, there is no stated requirement that CPR must be performed by two individuals rather than one. P. Ex. 1 at 1. In fact, the guidelines direct “all potential rescuers” to initiate CPR unless (1) there is a valid DNR order in place; (2) there are obvious signs of clinical death such as rigor mortis, dependent lividity, decapitation, transection, or decomposition; or (3) initiating CPR could cause injury or peril to the rescuer. Id.

Petitioner submitted the Texas Board of Nursing Practice FAQ concerning the administration of CPR. P. Ex. 2. The document provides that “in all healthcare settings, nurses must initiate CPR immediately in the absence of a client’s . . . do-not-resuscitate order.” P. Ex. 2 at 2. Petitioner underlines a section of the document that provides that the AHA “recommends that all clients receive CPR immediately unless attempts at CPR would be futile, such as when clients exhibit obvious clinical signs of irreversible death.” P. Ex. 2 at 2. The examples given are “decapitation (separation of head from body),

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decomposition [or decay of the body], dependent lividity (dark blue staining of the dependent surface of a cadaver . . .), transection, or rigor mortis (body stiffness that occurs within two to four hours after death and may take 12 hours to fully develop).” P. Ex. 2 at 2.

Petitioner includes only pages 3 and 4 of a 19-page document. The remainder of Petitioner’s Exhibit 2 includes pages 24, 25, and 26 of a 42-page Board of Nursing document. The section of the document offered by Petitioner references instances when Long Term Care residents without a DNR order experience an unwitnessed cardiac arrest, and where it is clear according to the comprehensive nursing assessment that CPR intervention would be a futile and inappropriate intervention given the condition of the resident. P. Ex. 2 at 3-5. The “[a]assessments of death in which CPR would be a futile and inappropriate intervention” requires that all seven presumptive signs of death are present and that the arrest is unwitnessed. Those required signs are: (1) the resident is unresponsive; (2) the resident has no respirations; (3) the resident has no pulse; (4) the resident’s pupils are fixed and dilated; (5) the resident’s body temperature indicates hypothermia: skin is cold relative to the resident’s baseline skin temperature; (6) the resident has generalized cyanosis; and (7) there is a presence of rigor mortis or the venous pooling of blood in dependent body parts causing purple discoloration of the skin. P. Ex. 2 at 4. I do not find these documents supportive of Petitioner’s arguments.

While Petitioner asserts that CPR was timely initiated, Petitioner also argues that R1 was already deceased when the CNA entered the resident’s room. P. Br. at 10 n.3, 13. Petitioner’s underlying argument appears to be that because R1 was likely already deceased when discovered by the CNA, the RN would have been justified in not initiating CPR. However, this argument is without merit. In the 12 seconds that the RN was in R1’s room, she apparently did not make the determination that it was futile to initiate CPR. She simply left R1 alone in the room and CPR was not initiated until the two LVN’s walked down the hall and entered R1’s room four minutes later.

Petitioner argues that while the overhead paging system for calling a code was working at the time of the incident, the CNA “acted properly (and much more quickly) by running just a few feet to the other unit to summon LVNs C and D.” P. Br. at 8 (citing P. Ex. 5 at 2 and P. Ex. 28 at 2) (emphasis added). Contrary to Petitioner’s assertions, the video footage reflects that after leaving R1’s room, the CNA walked away from the nurses’ station with her vital assessment equipment. While she may have run later to find the LVNs, the video footage does not show that she did so when she initially left the nurses’ station. Additionally, the recording does not show that the LVNs rushed to R1’s room to begin CPR. They walked down the hall at a normal pace, met at the nurses’ station, apparently waited for the RN’s direction, and then walked at a normal pace to R1’s room. P. Ex. 38-10, -11.

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Relying on CMS Ex. 17, Petitioner asserts that the RN would not have been able to immediately start CPR by herself because the BLS sequence from the AHA requires compressions, airway clearance, and rescue breathing-tasks which take more than one person to perform. P. Br. at 8 n.1. Contrary to Petitioner’s assertions, however, the Emergency Procedure for CPR upon which Petitioner relies does not specify that the procedure requires two persons. The procedure provides that if an individual (resident, visitor, or staff member) is found unresponsive and not breathing normally, a licensed staff member who is certified in CPR/BLS shall initiate CPR unless there is a DNR or there are obvious signs of irreversible death such as rigor mortis. CMS Ex. 17 at 1. The procedure further provides that if the first responder is not CPR-certified, that person will call 911 and follow the 911 operator’s instructions until a CPR-certified staff member arrives. Id. Petitioner’s records reflect that RN A received training for Heart Code Basic Life Support on October 3, 2021, 23 days prior to R1’s death. P. Ex. 20 at 2. Yet, in disregard of the AHA CPR procedures, RN A, who was recently trained in CPR procedures, chose to call 911 and wait for the LVN’s to initiate CPR rather than immediately initiating CPR. Furthermore, as the video footage reflects, there was no sense of urgency even after the LVNs arrived at the nurses’ station.

The facility’s policy regarding CPR provides that if an individual is found unresponsive and not breathing normally, a licensed staff member who is certified in CPR and basic life support shall initiate CPR unless there is a DNR order that prohibits such measures or there are obvious signs of irreversible death. CMS Ex. 17. In this instance, R1 did not have a DNR order and the fact that RN A apparently directed other staff to initiate CPR reflects that she did not conclude there were obvious signs of reversible death. The policy further provides that the chances of survival may be increased if CPR is initiated immediately. Id. However, RN A, who was fully trained to immediately initiate CPR, did not do so and left R1 alone in her room for other staff members to later initiate CPR.

The Board has held repeatedly that a facility’s policies “may reflect [its] own judgment about how best to achieve compliance” with participation requirements. Heritage House of Marshall Health & Rehab., DAB No. 3006 at 10-11 (2021) (quoting Bivins Mem’l Nursing Home, DAB No. 2771 at 9 (2017)). Thus, failing to comply with its own policies supports the finding that the facility was not acting within the standard of care and was not in substantial compliance with the regulations. Id.

Petitioner devotes a significant portion of its post-hearing brief to a discussion of the testimony of its medical expert, Dr. Lynn Rea. Although Dr. Rea was not R1’s treating physician and did not examine R1 prior to or after R1’s death, Dr. Rea testified that, in his opinion, R1 suffered a failure of one of her dialysis access seals, which allowed virtually her entire blood volume to exit her body within just a few minutes. Dr. Rea further attested that this was not caused by anything the facility staff did or did not do, and that there is no way that the staff could have predicted or foreseen this event. P. Ex.

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25 at 3. Dr. Rea also opines that once the bleeding started, the facility staff could not have replenished the blood back into R1’s body. P. Ex. 25 at 5.

As CMS did not cross-examine this witness, Petitioner argues that Dr. Rea’s testimony is unchallenged. I accept Dr. Rea’s testimony concerning the probable cause for R1’s loss of blood and Dr. Rea’s explanation for the potential difficulty in curbing or reversing the blood loss. Nevertheless, this undisputed testimony does not obviate the facility’s responsibility to provide basic life support as set out in its own CPR policy, the American Heart Association Guidelines for administering CPR to which the facility adheres, and the standard of practice required in 42 C.F.R. § 483.24(a)(3). CMS Ex. 17 at 1; CMS Ex. 3 at 47. It appears that Petitioner relies on Dr. Rea’s post-incident analysis and opinion to bolster its argument that administering CPR to R1 would have been futile. As I have noted elsewhere in this decision, the Board has addressed such futility arguments and pointed out that one of CPR’s goals is to reverse clinical death, “even though that outcome is achieved in only a minority of cases.” Woodland Oaks Healthcare Facility, DAB No. 2355 (2010) (quoting John J. Kane Reg’l Ctr.-Glen Hazel, DAB No. 2068 at 17 (2007)). Accordingly, the facility’s delay and failure to even attempt basic life support measures at the recognition of emergency was a violation of 42 C.F.R. § 483.24(a)(3).

2. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(b)(1) (3) (Tag F607).

42 C.F.R § 483.12(b)(1) requires a facility to develop and implement written policies and procedures “that prohibit and prevent abuse, neglect, and exploitation of residents and misappropriation of resident property.” 42 C.F.R. § 483.12(b)(2) requires a facility to establish policies and procedures to investigate any such allegations. Additionally, the facility’s abuse policy requires its Administrator or a designee to notify the appropriate agencies immediately, i.e., as soon as possible, but no later than 24 hours after the discovery of neglect, which is defined as “the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.” P. Ex. 18 at 1, 5; 42 C.F.R. § 483.5. Further, when an incident or suspected incident of resident abuse, neglect, misappropriation of resident property, or injury is reported, the Administrator or Director of Nursing will conduct the investigation. CMS Ex. 3 at 2; P. Ex. 18 at 3.

CMS submits that the facility did not comply with the regulations as it did not fully implement its internal policies that required that it investigate, document, and report the incident involving R1. CMS Br. at 9. Specifically, CMS alleges that the facility did not notify state agencies of the failure to immediately initiate life-saving measures including CPR and AED for R1 within the required 24 hours for reporting and did not thoroughly investigate the incident involving R1. CMS Br. at 10; CMS Ex. 4 at 9-10.

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Petitioner’s Director of Nursing (DON) testified that she interviewed the CNA, RN A, and the two LVNs who were involved. She reported her findings to the Executive Director and Administrator and a decision was made to not report the incident. The DON testified that it was determined that this was not an injury of unknown origin, and that there was no allegation of abuse or neglect. P. Ex. 28 at 2. Petitioner’s Administrator also testified that “[c]onsidering this resident was medically complex, with multiple co-morbidities, I did not see how this would be considered an act of abuse, neglect, or injury of unknown origin.” P. Ex. 27 at 2.

Petitioner argues that Tag F607 does not, in any way, pertain to a facility’s obligation to investigate alleged incidents or to report them if required by law. Petitioner maintains that citations for these matters are reserved for Tag F609: the citation for 42 C.F.R. § 483.12(C)(1)(4) that CMS also alleges as a violation. P. Br. at 14. Petitioner submits that the basic premise underlying F607 is a facility’s obligation to develop and implement policies and procedures to prevent abuse, neglect, and exploitation, and Petitioner argues that “no resident was abused, neglected, or exploited and that the State never found any evidence to the contrary.” Id. Furthermore, Petitioner argues that if CMS had determined that any resident was abused, neglected, or exploited, CMS would have cited the facility for a violation under F600: a violation of the resident’s right to be free from any type of abuse, neglect, or exploitation. Citing Appendix PP to the CMS State Operations Manual, Petitioner argues that a facility should only be cited for F607 if a F600 citation is present and the survey team determines that the reason for the F600 noncompliance is failure to develop and/or implement proper policies. P. Br. at 14.

Petitioner also argues that the facility has a very aggressive Abuse/Neglect/Exploitation (ANE) prohibition program that addresses each element required by the State Operations Manual. Citing Petitioner’s Exhibit 19, Petitioner argues, “The attached records confirm that during the last year, Morningside held ANE in-service training sessions at least five times regarding F607’s requirements to properly screen, train, prevent, investigate, protect, and report/respond, along with in-services regarding respondent to emergency situations.” P. Br. at 15.

Petitioner asserts that RN A’s training transcripts show that, during the three months prior to the November 2021 survey, she was trained regarding basic life support, CPR, abuse/neglect prevention and reporting. P. Ex. 20 at 2-4; P. Br. at 15. As discussed above, there is no dispute that on October 3, 2021, less than a month before the incident involving R1, RN A was trained on Basic Life Support. P. Ex. 20 at 2. Because of this recent training, RN A may well have been the employee with the most current training on basic life support. And yet, she did not immediately initiate CPR and basic life support.

I disagree with Petitioner’s claim that “a facility should only be cited for F607 if an F600 citation is present and the survey team determines that the reason for the F600 noncompliance is failure to develop and/or implement proper policies.” P. Br. at 14

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(referencing the State Operations Manual). Although Petitioner references Appendix PP to the State Operations Manual, Petitioner does not provide a citation to the actual language stating so. Moreover, policy guidance is not legally binding in relation to my decision in this case. See Consulate Healthcare of Jacksonville, DAB No. 3119 at 17 (2023). It appears reasonable that a violation of 42 C.F.R. § 483.12(b) could be present without a violation of 42 C.F.R. § 483.12(c) being present prior to the citation of the former violation. A facility may fail to implement written policies and procedures that prohibit and prevent abuse or neglect without neglect or abuse being the result of the failure to implement them.

I agree that the facility was in violation of 42 C.F.R. § 483.12(b)(1)-(3) when it: (1) summarily concluded that there was no abuse; (2) failed to thoroughly investigate the delayed initiation of CPR and the use of the AED; and (3) did not notify the appropriate agencies immediately, but no later than 24 hours after, the discovery of the incident as required by its Abuse Policy. CMS Ex. 3 at 2

Petitioner’s Abuse Policy requires the facility’s “[a]dministrator [to] consider all information gathered through the investigation process and make a determination regarding the validity of the accusation.” P. Ex. 18 at 4. Petitioner failed to implement this requirement of its Abuse Policy when its Administrator failed to consider the inconsistencies between the testimony of the RN A and the documentary and video evidence of the incident in reaching its determination that neglect did not occur. Thus, Petitioner failed to implement its “[e]stablish[ed] policies and procedures to investigate any such allegation.” 42 C.F.R. § 483.12(b)(ii).

Furthermore, Petitioner is right that a failure to report allegations of abuse and neglect is generally cited as a violation of 42 C.F.R. § 483.12(c). P. Br. at 14. However, the requirement to “notify the appropriate agencies immediately” was part of the Abuse Policy and was incorporated into the policy to prevent abuse or neglect of residents. Thus, failure to implement this requirement is a failure to implement a procedure in Petitioner’s policy that seeks to prevent abuse or neglect of Petitioner’s residents.

3. The facility was not in substantial compliance with 42 C.F.R. § 483.12(c)(1) (Tag F609).

42 C.F.R. § 483.12(c)(1) requires facilities in the Medicare program to immediately report allegations of serious bodily injury or neglect within two hours of the allegation being made. 42 C.F.R. § 483.12(c)(1); CMS Br. at 11. As discussed above, the nursing assistant found R1 unresponsive and notified RN A. Rather than immediately initiating CPR, RN A left R1 alone in her room for another four minutes before two LVNs arrived and stood waiting for apparent directions from RN A before walking at a normal pace to R1’s room. CMS Ex. 4 at 13; P. Ex. 38 -11.

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On November 2, 2021, the surveyor and facility Administrator Dion Munoz viewed the video tape recording that depicted the events outside R1’s room. The surveyor testified that the Administrator agreed that RN A did not follow nursing CPR protocols. CMS Ex. 4 at 13. While the Administrator did not specifically rebut the surveyor’s testimony, Administrator Munoz testified that, considering this resident’s medical history was complex and she had multiple co-morbidities, this incident was not viewed as an act of abuse, neglect, or injury of unknown origin. The Administrator testified that the decision to not report this incident was multifactorial, based on the combination of multiple comorbidities, multiple anticoagulant/antiplatelet medications, staff response, initial staff statements and interviews of their response to this incident.

Petitioner argues that the incident regarding R1 was not reported to CMS because it was not reportable under the relevant guidelines set forth in Provider Letter 19-17. P. Ex. 21. Petitioner submits that there was no allegation of abuse or neglect, and it was simply an “unfortunate medical incident that did not fall within the parameters of any regulation requiring reporting to the state survey agency.” P. Br. at 15. Petitioner argues that under section 3.0 of the Provider Letter, as well as the facility’s ANE policy, the DON and the Administrator would need to have “cause to believe” that R1 had been abused or neglected for this to be a reportable incident. P. Br. at 17; P. Ex. 21 at 3; P. Ex. 18 at 1. Petitioner maintains that, because the facility had no cause to believe that R1 had been abused or neglected under the provisions of the Provider Letter 19-17, and because the incident did not involve (and was not alleged to have involved) an injury of unknown source, there is no basis for the F609 citation. P. Br. at 17.

The Provider Letter upon which Petitioner relies provides that a nursing facility must report incidents involving abuse and suspicious injuries of unknown sources as defined in 42 C.F.R. § 483.12(c)(1) to the state. The facility is required to report such incidents immediately, but not later than two hours after the incident occurs or is suspected. P. Ex. 21 at 1-2.

I find Petitioner’s argument without merit. As discussed above, the facility did not immediately initiate CPR to R1 and left her unattended for four minutes. Even though Petitioner asserts that the facility’s actions did not constitute abuse or neglect, I find the facility’s response was noncompliant with 42 C.F.R. § 483.24(a)(3) (F678) and the facility’s own policy regarding CPR and BLS. Furthermore, it is reasonable that the cause for R1’s bleeding out could not have been immediately determined. Thus, R1’s injury of an unknown source would have warranted a report within the two-hour mandatory time frame, even beyond the issue of abuse or neglect.

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4. CMS has not established that Petitioner was not in substantial compliance with 42 C.F.R. § 483.21(b)(1) (Tag F656).

Pursuant to section 1819(b)(2) of the Act (42 U.S.C. § 1395i-3(b)(2)), a SNF:

must provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care which –

(A) describes the medical, nursing, and psychosocial needs of the resident and how such needs will be met;
(B) is initially prepared . . . by a team which includes the resident’s attending physician and a registered professional nurse with responsibility for the resident; and
(C) is periodically reviewed and revised by such team after each assessment under paragraph (3).

The implementing regulation requires that the “facility must develop and implement a comprehensive person-centered care plan for each resident, . . . that includes measurable objectives and timeframes to meet a resident’s medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment.” 42 C.F.R. § 483.21(b)(1). The comprehensive care plan must describe “[t]he services that are to be furnished to attain or maintain the resident’s highest practicable physical, mental, and psychosocial well-being as required under [42 C.F.R.] § 483.24, § 483.25, or § 483.40.” 42 C.F.R. § 483.21(b)(1)(i). “The purpose of the care planning requirement is to ensure that a resident receives the services essential to meet [their] assessed needs and to help the resident achieve or maintain [their] ‘highest practicable’ level of well-being.” Park Manor Nursing Home, DAB No. 2005 at 35 (2005).

CMS submits that the facility did not abide by this requirement with respect to R1 as it failed to follow the directions in her care plan. CMS also asserts that the facility did not abide by its own policy regarding care plans, which require the facility to incorporate identified problem areas, incorporate risk factors associated with identified problems, and reflect treatment goals and objectives in measurable outcomes. CMS Br. at 12; CMS Ex. 3 at 36-37.

CMS advances three areas of non-compliance that are alleged as Petitioner’s failure to comply with 42 C.F.R. § 483.21(b)(1). First, CMS asserts that while R1’s care plan dictated that her vital signs be checked every 6 hours, CNA B failed to check R1’s blood pressure when checking other vitals at 11:58 p.m. on October 26, 2021. CMS Br. at 6-7; CMS Ex. 9 at 5. Petitioner, however, maintains that R1’s orders required only that her

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vital signs be checked once per shift for 24 hours following dialysis. P. Br. at 6; P. Ex. 9 at 2; P. Ex. 8 at 1. Furthermore, Petitioner asserts that the order for six-hour monitoring for vitals was mistakenly entered into R1’s chart since she was a hospital readmission. Petitioner explains that ordinarily, hospital readmissions would have had vital signs taken every six hours for COVID monitoring for 10 days in accordance with CDC guidelines/recommendations. Petitioner asserts, however, that R1 was not on COVID-19 monitoring because she had been fully vaccinated, and she had recovered from COVID-19 in the preceding 90 days. P. Ex. 6 at 31; CMS Ex. 5 at 1. Furthermore, Petitioner points out that even if COVID-19 monitoring had applied to R1, the protocols would have expired on October 26, 2021, the 10th day since readmission. P. Ex. 6 at 27-29. Despite CMS’s assertion that R1’s blood pressure was not checked during the 7 p.m. to 7 a.m. shift on October 26 and 27, 2021, Petitioner’s Weights and Vital Summary reflect that R1’s blood pressure was 154/58 at 8:35 p.m. and 135/55 at 9:41 p.m. on October 26. P. Ex. 8 at 1. As Petitioner correctly points out, the SOD acknowledges that R1’s other vital signs were obtained during the 7:00 p.m. to 7:00 a.m. shift on October 26 and October 27, 2021. CMS Ex. 3 at 4. Thus, because there is record evidence that R1’s blood pressure was assessed less than six hours before she expired, I do not find that the facility failed to follow the directions in R1’s care plan by failing to properly assess vitals as CMS alleges.

Following R1’s post-coronary artery stent placement procedure on October 14, 2021, her cardiologist prescribed Eliquis, Plavix, and Aspirin; medications with blood-thinning properties for one month following the date of the procedure. CMS Ex. 10 at 2. As a second allegation of non-compliance with 42 C.F.R. § 483.21(b)(1), the Surveyor determined that R1’s care plan did not identify that R1 was on three medications that could place her at risk of bleeding. CMS Ex. 3 at 31. Specifically, the SOD documents that a review of R1’s care plan dated October 14, 2021, does not reveal a care plan for the daily use of Aspirin or for Plavix. The Surveyor further noted that during a continued review of R1’s care plan for anticoagulant therapy, the intervention read, “[a]void use of aspirin or NSAIDS (nonsteroidal anti-inflammatory).” CMS Ex. 3 at 34; CMS Ex. 7 at 6. In support of its position, CMS points out that, after seeing R1 on October 18, 2021, the nephrologist noted that R1 was at “huge risk for bleeding.” The physician’s note further observed, “[a]gree with Plavix but am unhappy about Aspirin and Eliquis. Doubt we can get any rational [sic] for what I believe is [e]xcessive. Will review records.” CMS Ex. 11 at 1.

Petitioner submits that R1 was never prescribed Plavix or low-dose Aspirin prior to her cardiac procedure at the hospital on October 14, 2021, and that these medications were not started in the facility until October 16, 2021, after R1’s return to the facility. P. Br. at 4; P. Ex. 9 at 5, 23, 32. Further, the October 16, 2021 admission progress note reflects that R1’s treating physician at the facility was notified of her readmission and that all medications were verified with the physician. P. Ex. 6 at 29. Petitioner’s expert witness testified, without contradiction, that with R1’s readmission to the facility on October 16,

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2021, a new MDS (Minimum Data Set) and a new comprehensive care plan would be required. The MDS is due within 14 days of admission and the care plan is due seven days following completion of the MDS. P. Ex. 36 at 12. Neither of those deadlines had arrived by October 27. However, the facility had already prepared the readmission MDS on October 22, 2021, and referenced the new anticoagulant medication. Id. Petitioner’s witness also maintains that while R1 was only receiving one anticoagulant at the time of the October 14, 2021 care plan, the plan reflects that measures were in place to address the use of anticoagulant therapy. The witness asserts that these measures would not have changed regardless of the number of new medications added and that anticoagulant precautions are the same regardless of the number of medications. Id. Thus, the evidence does not support CMS’s assertion that the facility failed to include all the anticoagulant medications in R1’s care plan as alleged.

Finally, CMS argues that R1’s care plan indicated that she needed regular dialysis and should “[a]void use of aspirin or NSAIDS (nonsteroidal anti-inflammatory drugs)” and that this direction was not followed. CMS Br. at 13. Petitioner submits, however, that the physician’s order for the additional anticoagulant medications issued after the October 14, 2021 care plan. P. Ex. 9 at 5. Petitioner argues that a physician’s order will always trump a facility-generated care plan. P. Br. at 19. Furthermore, the facility’s consultant pharmacist reviewed R1’s medications after R1’s readmission to the facility, found them appropriate, and made no recommended changes. P. Exs. 23, 32. Additionally, the nurse practitioner visited R1 on the morning of October 26, 2021, and confirmed that the facility was to continue all hospital medications. P. Ex. 6 at 5. Accordingly, the evidence does not support CMS’s allegation that the facility disregarded R1’s care plan when administering the physician ordered anticoagulant medications.

In summary, the facility did not fail to comply with 42 C.F.R. § 483.21(b)(1) as alleged.

5. CMS has not established that Petitioner was not in substantial compliance with 42 C.F.R § 483.25(l) (Tag F698).

The facility’s policy statement for the care of residents on hemodialysis provides that a Dialysis Resident Communication Form is initiated and sent to the dialysis center for each resident’s appointment and the facility is to ensure that it is received upon the resident’s return to the facility. CMS Br. at 5; CMS Ex. 24. The communication form was not given to the facility upon R1’s return from dialysis on October 25, 2021. CMS Ex. 4 at 9.

The surveyor determined that the facility’s failure to obtain the Dialysis Resident Communication Form on October 25, 2021, as well as a failure to obtain full vitals as ordered by the provider, could place residents receiving dialysis services at risk and which could lead to a decline in health. CMS Ex. 3 at 58.

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Petitioner argues that the deficiency allegation is invalid on its face as the regulation only requires that “facilities must ensure that residents who require dialysis services receive those services.” P. Br. at 20. There is no dispute that R1 received dialysis services as scheduled on October 25, 2021. Petitioner’s DON testified that Fresenius, the dialysis provider for R1, is not affiliated in any way with the facility. P. Ex. 28 at 2. Further, the DON testified that, while written communication forms are sent with the residents each time they attend dialysis, the dialysis clinic rarely completes and returns the forms. Id. DON Barr testified that it is the dialysis clinic’s practice to call the facility with any concerns or problems related to the resident’s dialysis services. DON Barr testified, without contradiction, that the dialysis clinic relayed no concerns following R1’s dialysis appointment on October 25, 2021. Petitioner asserts that it is not responsible for any lack of documentation or communication on the part of the Fresenius dialysis clinic. P. Br. at 21. CMS had the opportunity to cross examine DON Barr and did not do so. CMS submitted no evidence to demonstrate that the communication between Fresenius and the facility was other than the communication described by DON Barr. I do not find that the dialysis center’s failure to return the communication form is sufficient to support the alleged deficiency and violation of 42 C.F.R. § 483.25(l).

Specifically, I note that the regulation provides that a “facility must ensure that residents who require dialysis receive such services, consistent with professional standards of practice, the comprehensive person-centered plan, and the residents’ goals and preferences.” 42 C.F.R. § 483.25(l). I do not find sufficient evidence that Petitioner was not substantially compliant with the regulation by a failure to receive the dialysis communication form from the dialysis center.

6. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(e)(1)‑(3) (Tag F690).

Relevant Facts Related to Resident 2 (R2), Resident 3 (R3), and Resident 5 (R5).

R2 was admitted to the facility on October 31, 2021. CMS Ex. 4 at 15. R2’s Care Plan revealed that R2 had an indwelling catheter. CMS Ex. 20. The Plan provided for proper positioning of the catheter bag and tubing and the monitoring of the catheter on each shift for kinks. Id. On November 1, 2021, at 8:00 p.m., the surveyor observed R2’s indwelling catheter bag on the floor. CMS Ex. 4 at 16. A nurse, identified as RN F, confirmed that the bag should not be on the floor because of an infection control issue, and that allowing the bag to be on the floor could lead to cross contamination. CMS Ex. 4 at 16.

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The surveyor noted that R3 was admitted to the facility on May 23, 2021.5 CMS Ex. 21 at 2. R3 had an indwelling catheter, and R3’s Care Plan addressed the positioning of the bag and the tubing and provided that the bag and tubing be checked each shift. CMS Ex. 21 at 1. At 8:39 p.m. on November 1, 2021, the surveyors observed R3’s catheter bag on the floor. CMS Ex. 4 at 17. During an interview on November 11, 2021, LVN G cited the risk of cross-contamination and confirmed that the catheter bag should not be on the floor. CMS Ex. 4 at 17. LVN G also stated that catheter management involves checking the tubing for kinks and to make sure the bag is not on the floor. Id.

R5 was admitted to the facility on August 6, 2021. CMS Ex. 4 at 17. R5 had an indwelling catheter, and R5’s Care Plan addressed the position of the catheter bag and tubing and provided that the tubing be checked each shift for kinks. CMS Ex. 22. At 8:45 p.m. on November 1, 2021, the surveyor observed R5’s indwelling catheter on the floor. CMS Ex. 4 at 18. During an interview on November 1, 2021, LVN E cited an infection control concern and confirmed that the catheter bag should not be on the floor. CMS Ex. 4 at 18. The surveyor testified that the DON also agreed that the catheter bags should not be on the floor. CMS Ex. 4 at 18.

Discussion

42 C.F.R. § 483.25(e)(1)-(2)(iii) requires that a facility must ensure that a resident who is incontinent of bladder receive appropriate treatment and services to prevent urinary tract infections and to restore continence to the extent possible. CMS asserts that the facility was in clear violation of this requirement. Specifically, CMS submits that the surveyors observed that R2’s, R3’s, and R5’s indwelling catheters were on the floor, which could result in the decline of the residents’ health and lead to infections. CMS Ex. 4 at 15-18; CMS Br. at 15.

Petitioner responded to the CMS allegations and simply stated, “Morningside will demonstrate that its staff fully complied with this regulation, and that all residents in question received the proper bowel and bladder services (P. Ex. 28). As such, there is no basis for this deficiency.” P. Br. at 22. Petitioner’s Exhibit 28 is the sworn declaration of the facility’s DON. I note that this declaration is a two-page document that addresses the incident involving R1 and the DON’s interviews with staff members about the October 27, 2021 incident involving R1. There is no reference in the declaration to R2, R3, or R5, or to the issues of whether their indwelling catheters were on the floor, and whether leaving the catheter bags on the floor could lead to infections. See P. Ex. 28 at 1-2. Petitioner offered no proof to rebut the statements made to the surveyor by staff members RN F, LVN G, and LVN E. See Beatrice State Developmental Ctr., DAB No. 2311 at 17-18 (2010). I find that the indwelling catheter bags for R2, R3, and R5 were on the

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floor, constituting an infection control concern and the potential for cross-contamination. Accordingly, I find that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(e)(1)-(3).

IV. While CMS’s Immediate Jeopardy Determination is Unreviewable, CMS’s Immediate Jeopardy Determination is Not Clearly Erroneous.

CMS’s immediate jeopardy determination is not reviewable.

CMS’s findings about the level of noncompliance are appealable only if a “successful challenge on this issue would affect – (i) [t]he range of civil money penalty amounts that CMS could collect; or (ii) [a] finding of substandard quality of care that results in the loss of approval for a SNF or NF of its nurse aide training [and competency] program [(NATCEP)].” 42 C.F.R. § 498.3(b)(14). 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. If reviewable, CMS’s determination as to the level of a facility’s noncompliance must be upheld unless it is “clearly erroneous.” 42 C.F.R. § 498.60(c); see Heritage House, DAB No. 3035 at 21 (2021) (citing Franklin Care Ctr., DAB No. 2869 at 9 (2018)). The Board has repeatedly found that the “clearly erroneous” standard imposes a “heavy burden” on facilities to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence from which one could reasonably conclude that immediate jeopardy exists. Florence Park Care Ctr., DAB No. 1931 at 21 (2004); Barbourville Nursing Home, DAB No. 1931 at 27-28 (2004) (citing Koester Pavilion, DAB No. 1750 (2000)).

In this case, although the Petitioner challenges the level of noncompliance and CMS argues that its finding is not clearly erroneous, CMS Br. at 15-16; P. Post-Hrg. Br. at 6, neither of the above-mentioned conditions is present and satisfied in this case. A successful challenge to the level of noncompliance would affect the range of the CMP amounts that CMS could collect because CMS imposed a per-instance CMP. CMS Ex. 1 at 2. When CMS imposes a per-instance CMP, only one penalty range applies for both immediate jeopardy level and not-immediate jeopardy level noncompliance. 42 C.F.R. § 488.438(a)(2). “In addition, there is no evidence that the immediate jeopardy finding undergirds a ‘substandard quality of care’ finding that resulted in the loss of Petitioner’s [NATCEP].” 38-40 Freneau Ave. Operating Co. LLC, DAB No. 3008 at 12 (2020). Moreover, if the immediate jeopardy finding undergirds a substandard quality of care finding that resulted in the loss of Petitioner’s NATCEP, the loss of approval for a NATCEP would not be affected by a successful challenge to the level of noncompliance because, by operation of law, the imposition of a CMP of $11,292 or more results in NATCEP loss whether or not immediate jeopardy is present. 42 C.F.R. § 483.151; 45 C.F.R. § 102.3 (2021). Here, CMS imposed on Petitioner a per-instance CMP of $21,845. CMS Ex. 1 at 2.

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CMS’s immediate jeopardy determination is not clearly erroneous.

While I conclude that CMS’s determination of the level of noncompliance is unreviewable, I have also found that the facility was not in substantial compliance with Medicare program requirements, which included its failure to immediately provide basic life support to R1 when she was found in medical distress. Therefore, even if CMS’s determination of immediate jeopardy is not reviewable, CMS has established that its determination is not clearly erroneous. A finding of immediate jeopardy impacts the seriousness of the deficiency in determining the overall reasonableness of the penalty. See NMS Health care of Hagerstown, DAB No. 2603 at 1 n.1 (2014). In NMS Healthcare of Hagerstown, the Board noted that an immediate jeopardy citation is relevant to the seriousness of deficiencies and is a factor to be considered by an ALJ when determining whether the amount of a CMP is reasonable, even if the immediate jeopardy determination is not subject to review because CMS imposed a per-instance CMP. Id. Immediate jeopardy exists if the facility’s noncompliance has caused or is likely to cause serious injury, harm, impairment, or death to a resident. 42 C.F.R. § 488.301. The evidence in the record supports the conclusion that the facility’s noncompliance would justify a finding of immediate jeopardy.

Here, the facility failed to provide CPR to a resident who appeared unresponsive and who had stopped breathing. P. Ex. 31 at 1. Failing to provide CPR to a full-code resident who had stopped breathing all but guarantees that resident’s death and, thus, poses immediate jeopardy to resident health and safety. See Woodland Oaks Healthcare Facility, DAB No. 2355 at 17-18 (2010).

Petitioner argues that based on R1’s appearance, “the nurses would have been well within their rights to not start CPR, even though R1 was a full code because the assessments revealed that R1 was already deceased.” P. Br. at 9-10. I accept that RN A could have made that determination because of her experience and training. However, she did not do this. Rather than immediately initiating CPR or making a reasoned determination that R1 was already deceased, she chose to leave R1 and wait for other staff to begin CPR.

In viewing the video recording of the activity outside R1’s room, one can see that upon finding R1 unresponsive, the CNA ran out of R1’s room to call RN A at 4:21:55 a.m. and RN A ran into the room in response to CNA’s alert at 4:22:03 a.m. RN A then ran out of the room and back to the nurses’ desk at 4:22:15 a.m. She was followed by the CNA who walked at a brisk pace carrying her vitals equipment. P. Ex. 38 -6, -7. Thereafter, the video recording reflects that the initial haste diminishes. As the video recording confirms, and contrary to the sworn testimony of the CNA who discovered R1, RN A did not remain in R1’s room and did not begin CPR. After being in R1’s room for a period of seconds, RN A left R1 alone to return to the nurses’ desk. One of the LVNs who ultimately administered CPR arrived at the nurses’ station at 4:24:47 a.m. She remained at the nurses’ station talking with RN A and showing something to RN A on her cell

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phone. At 4:25:19 a.m., another staff person can be seen walking casually down the hall toward the nurses’ station. She arrived at the nurses’ station and stood briefly with the other staff person at the desk before walking casually down the hall toward R1’s room. They entered the room at 4:25:51 a.m. At 4:26:24 a.m., another staff person walked by the nurses’ desk while RN A was still on the telephone. She walked slowly toward R1’s room and entered at 4:26:36 a.m. P Exs. 38-10, -11, -12.

Clearly, it was paramount that once R1 was found to be unresponsive, a staff person needed to immediately call Emergency Services. However, of the first two staff members who found R1 unresponsive, it is reasonable to conclude that RN A was more qualified to deal with a nursing emergency than a nursing assistant who would have ostensibly had less training. Furthermore, RN A had been trained in Heart Code Basic Life Support as recently as October 3, 2021. Rather than initiating any life support measures, however, RN A left R1 alone and proceeded to the nurses’ station to call 911. While the record does not reflect what transpired once RN A placed the call, the record clearly shows that she began a phone call at 4:22:22 a.m. and remained on the phone until 4:27:14 a.m., when she again enters R1’s room.

I also note that RN A asserts that she had checked on R1 at 3:50 a.m. and there was no problem with R1. P. Ex. 5 at 2; P. Ex. 28 at 2. Certainly, the very short timeline between what RN A observed at 3:50 a.m. and what the nursing assistant discovered at 4:21:55 a.m. arguably should have signaled the need for immediate action. The sequence of events begs the question as to why the staff person with the most recent BLS training did not take immediate action and allow the nursing assistant to make the call to 911.

Despite the issue of reviewability, CMS has established prima evidence of an immediate jeopardy level deficiency for Tag F678, for failing to immediately provide basic life support when R1 was found in dire medical distress. Further, Petitioner has failed to show that CMS’s determination of immediate jeopardy was clearly erroneous.

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

In this case, CMS imposed a per-instance CMP of $21,845 for the finding of noncompliance at 42 C.F.R. § 483.24(a)(3). Specifically, CMS imposed the per-instance CMP for the instance on October 27, 2021, described at deficiency Tag F678, and which was determined to present immediate jeopardy to residents. As CMS may impose a per-instance CMP in the range of $2,259 to $22,584, CMS seeks an amount that is in the upper range for a per-instance CMP. 45 C.F.R. § 102.3; 86 Fed. Reg. 62,931, 62,942 (Nov. 15, 2021).

Regarding the amount of the CMP, 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

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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).

Petitioner argues that the monetary penalty of $21,845 is excessive and contends that this is especially so when the facility’s actions did not lead to R1’s death. P. Br. at 25. Further, Petitioner argues that the factors in 42 C.F.R. §§ 488.438(f) and 488.404 were not properly applied by CMS, and thus the CMP sought by CMS is not legally justified and should be reduced if the undersigned determines that any penalty should be imposed. Id. Petitioner did not, however, identify the specific factors in these regulatory sections that were not applied properly, or which factors warranted a reduction in penalty as Petitioner suggests. Id. For that reason, I conclude the CMP amount is reasonable.

First, I note that while Petitioner submits that the CMP is not legally justified and should be reduced or rescinded, Petitioner has not raised the facility’s financial condition as a basis to reduce the reduction of the CMP. See Gilman Care Ctr., DAB No. 2357 at 7 (2010). Furthermore, CMS maintains that since 2018, the facility has had eight non-compliance cycles with two enforcement actions (including the current enforcement action). CMS Ex. 26 at 1-5.

Overall, I must 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 considering the regulatory factors identified above. CMS submits that culpability is defined under 42 C.F.R. § 488.438(f)(4) as “including (without limitations), ‘neglect, indifference, or disregard for resident care, comfort, or safety.’” CMS Br. at 17. CMS argues that the facility neglected R1 when staff left her unattended for four minutes when she was in a medical emergency and thus deprived her of comfort and safety. Essentially, CMS asserts that the facility failed to timely provide R1 with emergency medical care and therefore potentially risked her life. CMS Br. at 17; CMS Ex. 3 at 41-43. As discussed above, Petitioner

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fundamentally contends that the facility acted as quickly as possible under the circumstances and that R1 “in all likelihood (based on the assessments of the nurses who saw the resident) was already deceased and for whom CPR was going to be little more than an exercise in futility.” P. Br. at 9. Therein lies the fallacy in Petitioner’s argument. The RN who was called to R1’s room did not determine that CPR was an exercise in futility. Although she was recently trained to administer CPR, she did not administer CPR and left R1 alone for four minutes. The accompanying CNA did not run to find help. And, equally disturbing, the video recording shows that the staff did not demonstrate any urgency as the two nurses who ultimately administered CPR casually walked to the nurses’ station, stood and waited for instructions from RN A, and then casually walked to R1’s room.

Taking all relevant factors into consideration, I find that the overall evidence supports a finding that the amount of the CMP is reasonable.

VI. There is a basis for the imposition of a DPNA from December 7, 2021 to January 16, 2022, based on the facility’s noncompliance with Medicare regulations

In addition to imposing a CMP, CMS may also impose a DPNA when a SNF is not in substantial compliance. 42 C.F.R. §§ 488.406(a)(2)(ii), 488.417(a). In this case, CMS imposed a DPNA from December 7, 2021, through January 16, 2022 based on the entirety of the facility’s noncompliance. Based on the totality of evidence, I find that the DPNA was authorized because CMS determined that the facility returned to substantial compliance with the Medicare participation requirements on January 17, 2022. CMS Ex. 2 at 1.

VII. 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 per-instance CMP of $21,845 imposed for the instance of noncompliance on October 27, 2021 is reasonable. The DPNA from December 7, 2021 through January 16, 2022 is also reasonable.