Lawrence Street Health Care Center, DAB CR5798 (2021)

DECISION

I enter summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Lawrence Street Health Care Center, a skilled nursing facility.  I sustain CMS’s determination to impose remedies against Petitioner that include:  a per-diem civil money penalty of $9,815 for the dates of February 28, 2019, and March 1, 2019; and a per-diem civil money penalty of $515 for each day of a period that began on March 2, 2019, and that continued through March 27, 2019. 

I.  Background

I received this case recently as a reassignment from the docket of another administrative law judge.  On my review of the record, I discovered that CMS had moved for summary judgment.  Petitioner opposed the motion and, in its opposition, raised arguments concerning the lawfulness and reasonableness of CMS’s remedy determination that CMS had not briefed.  I afforded CMS the opportunity to file a response to Petitioner’s arguments and gave Petitioner the opportunity to file a reply.  The parties availed themselves of these opportunities.

CMS filed 13 exhibits with its motion for summary judgment, identified as CMS Ex. 1-CMS Ex. 13.  Petitioner filed 14 exhibits, identified as P. Ex. 1-P. Ex. 14, in opposition. 

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I have reviewed these exhibits.  I make no ruling as to their admissibility as evidence inasmuch as I decide this case based on undisputed material facts.  However, I cite to some of the exhibits, either to illustrate facts that are undisputed, or to explain why there are no disputes about material facts.

II.  Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues in this case are whether undisputed facts demonstrate that Petitioner failed to comply substantially with a Medicare participation requirement, whether these facts sustain CMS’s determination of immediate jeopardy level noncompliance, and whether undisputed facts establish CMS’s remedy determination to be reasonable.

B. Findings of Fact and Conclusions of Law

CMS bases its motion for summary judgment on allegations that Petitioner failed to comply with a single Medicare participation requirement. CMS initially determined that Petitioner failed to comply with a second requirement.  CMS does not premise its motion on this second allegation and I do not address it for that reason, except to explain that Petitioner’s noncompliance with one participation requirement amply supports CMS’s remedy determination.  This requirement mandates a skilled nursing facility to ensure that its resident environment remains as free of accident hazards as is possible and that each resident of the facility receives adequate supervision and assistance devices in order to prevent that resident from sustaining accidents.  42 C.F.R. § 483.25(d)(1), (2). 

CMS alleges that Petitioner failed to comply with this requirement in providing care to a resident, identified as Resident 1.  It contends that Petitioner failed to provide this resident with the necessary supervision to prevent him from choking.  CMS asserts that staff contributed to the resident’s death by feeding him an item (a peanut butter and jelly sandwich) that staff knew or should have known was excluded from the resident’s diet and then not supervising the resident as he ate it.  The consequence of this misfeasance, according to CMS, is that the resident choked to death.

The undisputed facts overwhelmingly establish CMS’s contentions.  Petitioner offers no evidence-based facts that create a fact dispute.

These facts are undisputed.

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Resident 1 was 82 years old and suffered from a variety of impairments, including dementia, Parkinson’s Disease, and dysphagia (difficulty with swallowing).  CMS Ex. 7 at 9.  As of January 24, 2019, Petitioner’s staff assessed the resident as having significant problems with eating and swallowing food.  The staff determined that Resident 1 could eat only with the physical assistance of one person and that he needed oversight, encouragement, and cueing when he ate.  Id. at 15.  The resident’s care plan concluded that he could feed himself, but only with set up by the staff and under staff supervision.  Id. at 34. 

Resident 1’s physician and Petitioner’s staff decided that the resident required a restricted diet in order to address the risks caused by his dysphagia.  On June 27, 2018, the resident’s physician ordered that Resident 1 receive a diet consisting of pureed food and liquids with the consistency of nectar.  CMS Ex. 7 at 47.  Consistent with this order, the resident’s care plan specified that the resident receive a pureed diet with nectar-thickened liquid.  Id. at 37.  The care plan instructed Petitioner’s staff to observe the resident as he ate and to report any signs of dysphagia, including pocketing of food, choking, coughing, drooling, holding food in his mouth, multiple attempts at swallowing, refusing to eat, and appearing concerned during meals.  Id.  A Kardex report, kept at the resident’s bedside, specified that Resident 1 should be supervised while eating.  CMS Ex. 7 at 45.

On February 5, 2019, Resident 1 experienced an incident of choking while consuming nectar-thickened liquid.  Staff concluded that the resident needed a swallow study to determine the extent of his limitations.  CMS Ex. 7 at 51.  That study, conducted on February 11, 2019, concluded that the resident’s dysphagia put him at risk, both for aspiration pneumonia (resulting from inhaling food particles) and choking.  The study made explicit recommendations concerning feeding Resident 1.  These included supervised feeding, cueing the resident as he attempted to eat, and allowing the resident extra time to eat.  Id. at 132.

Despite these assessments, plans, orders, and instructions, on the evening of February 28, 2019, a nursing assistant left Resident alone in his room with a peanut butter and jelly sandwich and with nothing to drink.  CMS Ex. 4 at 9; CMS Ex. 7 at 34, 92.  Shortly thereafter Petitioner’s staff discovered the resident not breathing and without a pulse.  CMS Ex. 7at 55, 91.

Attempts to resuscitate Resident 1, both at Petitioner’s facility and at a hospital, ultimately proved to be fruitless.  The resident was pronounced dead early on the morning of March 1, 2019.  CMS Ex. 7 at 103.

A medical examiner determined that the cause of Resident 1’s death was asphyxiation due to an upper respiratory tract obstruction.  CMS Ex. 7 at 6.  The hospital staff suctioned peanut butter from the resident’s airway.  CMS Ex. 4 at 8.

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These undisputed facts demonstrate that Petitioner’s staff egregiously neglected to provide Resident 1 with the care that he needed.  Feeding this resident a peanut butter and jelly sandwich and then leaving him unsupervised blatantly contradicted the orders, assessments, and plans that had been created for this resident.  That misfeasance certainly caused the resident’s death.

The failure to comply with orders, assessments, and plans constituted an obvious failure to comply with regulatory requirements.  Staff knew what hazards and risks Resident 1 faced.  Staff knew what needed to be done in order to protect him.  Yet, the resident was left unattended and at obvious peril. 

The term “immediate jeopardy” means a situation that causes or is likely to cause a resident to incur serious injury, harm, impairment or death.  42 C.F.R. § 488.301.  The undisputed facts satisfy that definition.  Leaving Resident 1 unattended with a prohibited food item contributed directly to his death.

The undisputed facts also establish a basis for the remedy that CMS determined to impose.  Daily penalties of $9,815 are only about one-half of the then-maximum allowable daily civil money penalty amount for immediate jeopardy level noncompliance.  42 C.F.R. § 488.438(a)(1); 45 C.F.R. Part 102.  In this case, the penalty amount is more than justified by the seriousness of Petitioner’s noncompliance.  42 C.F.R. §§ 488.438(f)(1)-(4); 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).

This is not a case where a facility’s noncompliance with a regulation created only a likelihood of serious injury, harm, impairment or death to a resident.  Here, the undisputed facts establish that the misfeasance of Petitioner’s staff directly caused Resident 1 to die.  That level of harm merits a very high penalty.  The amount that CMS determined to impose actually is quite modest.

I also find to be reasonable the penalty of $515 per day that CMS imposed for continuing non-immediate jeopardy.  That penalty amount comprises only a small fraction of the amount that CMS might have imposed.  I find it to be justified because CMS concluded reasonably, and based on undisputed facts, that a continued penalty was necessary to assure that Petitioner did all that was necessary to achieve compliance with regulatory requirements.  That necessitated two things:  (1) providing in-service training to staff to make certain that staff understood the scope of their duties; and (2) monitoring and assessing staff’s performance to ensure that the staff performed their tasks consistent with what they were assigned.  There are no facts of record that show that Petitioner satisfied the second of these two requirements prior to March 28, 2019.

I find to be without merit the arguments that Petitioner offers in opposition to CMS’s motion.

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Petitioner contends that the facts offered by CMS, and that I have cited in support of this decision, are in dispute.  However, it has not offered evidence-based facts that establish a dispute.    

Petitioner alleges a dispute over the level of supervision that Petitioner’s staff determined was necessary for Resident 1 to receive when he ate.  Lawrence Street Health Care Center’s Pre-hearing Brief and Response to Respondent’s Motion for Summary Judgment (Petitioner’s brief) at 6.  Petitioner asserts that the resident required assistance with set up for eating but did not require one-to-one supervision while he ate.  It argues that the resident required only “distant supervision” by a certified nursing assistant as he ate.  Petitioner’s brief at 8.  Petitioner does not define what it means by “distant supervision.”  See P. Ex. 3.

Petitioner’s argument is irrelevant, although the facts only support a conclusion that Resident 1 needed close supervision as he ate and not just “distant supervision” (assuming that Petitioner intends this term to mean something less than close supervision). Petitioner supports its contention with a declaration signed by Nancy C. Hahn Robinson, a licensed speech pathologist.  P. Ex. 3.  In her extremely carefully worded declaration, Ms. Robinson avers that she did not order that Resident 1 receive one-to-one supervision when eating.  Id.  While that may be true, she recommended that the resident be closely supervised while eating.  CMS Ex. 7 at 132.  It would have been impossible to cue the resident while he ate without closely supervising him, as Ms. Robinson recommended.  Ms. Robinson’s recommendation is entirely consistent with the directives in Resident 1’s plan of care.  CMS Ex. 7 at 37.  On the evening of February 28, 2019, Petitioner’s staff left the resident unsupervised after being supplied with a prohibited food item.  It does not matter, therefore, whether Resident 1 was supposed to be closely supervised as he ate or that he needed only “distant supervision,” whatever that term is supposed to mean, because the undisputed facts establish that he received no supervision whatsoever on the evening of February 28, 2019.

That said, the egregiousness of Petitioner’s noncompliance becomes evident when one compares what the resident did not receive with what Petitioner’s staff directed that he receive.  Resident 1’s care plan explicitly stated that he required supervision while eating.  CMS Ex. 7 at 34.  The care plan also required that the resident be observed for signs of dysphagia as he ate.  It would be impossible to conduct such supervision while leaving the resident alone to eat.  Whatever Petitioner intends “distant supervision” to mean, Petitioner does not rebut the staff’s conclusion that it was absolutely necessary to remain close enough to Resident 1 to observe his eating and to provide him with the assistance necessary to prevent him from choking.  This, the staff utterly failed to do on the night that Resident 1 choked to death.

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Petitioner argues additionally that there is a fact dispute concerning the system that it had in place to protect its residents from diet-related accidents.  Petitioner’s brief at 6.  It discusses at length the mechanisms that it employed to protect residents from such accidents.  Id. at 10-12.  According to Petitioner:  “[C]ompliance . . . is measured by evaluating the facility system that is implemented, not by evaluating each employee action in connection with an accident.”  Id. at 11.

Having a system in place to prevent residents from sustaining accidents may be a necessary predicate in many instances to assuring compliance with regulatory requirements.  However, a facility’s duty to its residents does not end with the development of systems.  Issuing directives and instructions to staff about how to care for residents is of no value if the staff does not implement those directives and instructions.  Here, the noncompliance lies not in Petitioner’s development of a system to protect residents who receive restrictive diets, but in the failure by Petitioner’s staff to carry out the directives and instructions that Petitioner’s system incorporated.

Whatever Petitioner may have directed its staff to do was not done in providing care to Resident 1.  The undisputed facts establish that this resident received none of the protection that Petitioner’s system may have mandated.  That failure to provide care consistent with what had been directed for Resident 1 is the essence of Petitioner’s noncompliance.

Petitioner argues also that the misfeasance of its nursing assistant on the evening of February 28, 2019, must be viewed as an isolated event that says nothing about Petitioner’s compliance with regulatory requirements.  Effectively, Petitioner contends that it bears no responsibility for the actions of its employee.  “[The nursing assistant] acted absentmindedly and independently.  It was unforeseeable to the Facility that an employee who was trained, had a good employment history, and had a strong relationship with a resident would inexplicably act so recklessly.”  Petitioner’s brief at 12.

A skilled nursing facility may not divorce itself from its employees’ actions in order to avoid its regulatory duties.  If such separation were allowed, then the facility would effectively be immune from most compliance obligations.  A facility discharges its responsibilities to a resident via the actions of its employees.  Consequently, a skilled nursing facility must bear direct responsibility for its employees’ actions.  Here, the nursing assistant was acting on Petitioner’s behalf when she provided care to Resident 1.  Consequently, Petitioner is liable for the nursing assistant’s misfeasance.

Petitioner asserts that, even it if is responsible for the actions of its employees, it was not foreseeable that the nursing assistant would fail so egregiously to carry out the facility’s policies and directives in providing care to Resident 1.  “It was not foreseeable that a . . . [nursing assistant], with all the training and experience as . . . [this nursing assistant had],

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would provide the wrong meal despite all of the facility interventions in place to identify a resident’s dietary needs.”  Petitioner’s brief at 13-14.

This assertion assumes facts that are not before me.  Petitioner has not offered any evidence describing the training and experience of the nursing assistant who cared for Resident 1 on the evening of February 28, 2019.  There are no facts from which I can infer why the nursing assistant failed to follow directions in providing care to Resident 1. 

Moreover, Petitioner’s argument essentially is a restatement of its contention that it cannot be held responsible for the actions of its employees.  I have explained why Petitioner’s assertion is incorrect.

Petitioner challenges CMS’s finding of immediate jeopardy level noncompliance.  Petitioner’s brief at 15-19.  If I were to hold a hearing in this case, Petitioner’s evidentiary burden would be to prove that CMS’s finding of immediate jeopardy level noncompliance is clearly erroneous.  However, in ruling on CMS’s motion for summary judgment, I do not weigh evidence.  My role is to determine whether Petitioner either showed that immediate jeopardy cannot exist as a matter of law or whether it has adduced facts that, if true, could lead to a finding that CMS’s determination of immediate jeopardy is clearly erroneous. 

I find that Petitioner failed on both counts.

Petitioner’s principal argument relating to immediate jeopardy hinges on what it contends are the findings made at the initial survey of Petitioner’s facility, conducted on March 14, 2019.  According to Petitioner, the surveyor who conducted the survey concluded that there was no immediate jeopardy level noncompliance.  Therefore, it contends, CMS cannot now assert that immediate jeopardy was present.  Petitioner’s brief at 16.  It amplifies that assertion by contending that the system that it had in place to protect residents with nutrition issues served to assure that no immediate jeopardy level noncompliance could occur.  Id. at 18.

This contention is wrong, both as a matter of law and of fact.  First, the surveyor’s findings are not binding on CMS.  They constitute recommendations, at most.  CMS is free under the regulations to make an independent determination about the presence of noncompliance and its scope and severity based on whatever facts were adduced at the survey.  Second, the fact that Petitioner had a system in place intended to protect its residents as of February 28, 2019, serves as no bar, either to a finding of noncompliance or of immediate jeopardy level noncompliance.  That system, no matter how well designed and intended it may have been, failed on February 28, 2019.

Whatever the surveyor may have concluded or recommended, these facts are clear and undisputed.  On the evening of February 28, 2019, a nursing assistant gave a prohibited

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food item to a resident in flagrant disregard of the dietary restrictions and supervision requirements that were in place for that resident.  That conduct is the four corners of Petitioner’s noncompliance and CMS’s finding of immediate jeopardy.  Given these undisputed facts, the surveyor’s recommendations are irrelevant to deciding whether to sustain CMS’s finding.

Petitioner makes other arguments to support its assertion that no immediate jeopardy level noncompliance occurred.  It offers a chart that lists what Petitioner contends are the components of immediate jeopardy level noncompliance.  Petitioner’s brief at 15-16.  It contends that there could not have been immediate jeopardy level noncompliance because not all of the alleged prerequisite components of immediate jeopardy were present.

Several of these components are without legal basis.  As I have discussed, the sole regulatory criterion for a finding of immediate jeopardy is that the facility be noncompliant in a manner that either causes serious injury, harm, impairment, or death to a resident or is likely to do so.  42 C.F.R. § 488.301.  The undisputed facts establish that Petitioner’s noncompliance comprised immediate jeopardy because that noncompliance resulted in a resident’s death.

For example, Petitioner argues that culpability is one of the criteria for a finding of immediate jeopardy and it contends that it was not culpable for Resident 1’s death.  Petitioner’s brief at 16.  However, culpability is not a necessary element of a finding of immediate jeopardy.  Culpability is an element of the egregiousness of immediate jeopardy.  Some immediate jeopardy noncompliance may be worse than others and the penalty structure for immediate jeopardy level deficiencies reflects that.  42 C.F.R. § 488.438(a)(1). 

Petitioner avers that the death of a resident is insufficient, in and of itself, to support a finding of immediate jeopardy level noncompliance.  Petitioner’s brief at 16.  That assertion is technically correct, but it is also meaningless.  There are times when residents of skilled nursing facilities die despite having received flawless care.  However, in this case, the circumstances of Resident 1’s death are undisputed.  The resident died because of the noncompliant care that Petitioner’s staff provided to him.  That nexus is sufficient to establish immediate jeopardy.

Petitioner asserts that immediate jeopardy was not found until a follow up survey was conducted on March 28, 2019.  It argues that, by then, any noncompliance that it may have been liable for was in the remote past, and it contends that it is unreasonable to make a finding of immediate jeopardy for noncompliance that it asserts had been rectified well before the date when the finding was made.  Petitioner’s brief at 18.

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Petitioner offers no legal support for this assertion and, in fact, there is none.  Nothing in the regulations governing compliance of skilled nursing facilities precludes CMS from remedying noncompliance that occurred at a date prior to a survey. 

Moreover, the surveyor – and CMS – did not conclude that Petitioner’s noncompliance had ended prior to the March 28, 2019 survey.  CMS found that immediate jeopardy level noncompliance ended at Petitioner’s facility as of March 1, 2019.  However, it found that there was ongoing noncompliance, albeit at a level that was less severe than immediate jeopardy, up until the March 28, 2019 survey.  Petitioner is incorrect when it asserts that it is being held accountable strictly for past noncompliance.

Petitioner challenges CMS’s remedy determination on several grounds.  It notes that CMS initially determined to impose a per-instance civil money penalty against Petitioner and then changed its determination to impose per-diem penalties.  Petitioner argues that the law prohibits CMS from doing this.  Petitioner’s brief at 19-21.

Second, Petitioner asserts that CMS may not impose immediate jeopardy level penalties for what it characterizes as “past noncompliance” whether or not the scope and severity of this noncompliance may have been at the immediate jeopardy level.  Petitioner’s brief at 21-22.

Finally, Petitioner asserts that, if it was noncompliant at all, its noncompliance ended on March 1, 2019, after its nursing staff completed an in-service training class of staff on their obligations to comply with policies and directives for caring for residents with nutrition issues.  Petitioner’s brief at 23-25.

Petitioner’s first argument is incorrect as a matter of law.  Nothing in the regulations governing the imposition of remedies precludes CMS from changing or modifying a determination to impose a remedy.  42 C.F.R. Part 488.  That CMS determined to change its determination to impose a per-instance penalty to one that imposes per-diem penalties is perfectly consistent with what the regulations permit.  Brenham Nursing & Rehab. Ctr., DAB No. 2619 at 17 (2015). 

As a corollary to its first argument, Petitioner contends that CMS may not revise a remedy determination after a facility has requested a hearing.  Again, this argument finds no support in the regulations addressing remedies.  Nor does it find support in regulations governing hearings.  42 C.F.R. Part 498.  Petitioner had notice of CMS’s final determination and had ample time to prepare its defense against that determination.  Nothing that CMS did denied Petitioner due process. 

The essence of Petitioner’s second argument is that CMS’s policy prohibits it from imposing per-diem penalties for noncompliance that ends prior to the date of a survey.  Petitioner contends that its immediate jeopardy level noncompliance ended prior to the

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initial survey of its facility on March 14, 2019.  It argues that, consequently, immediate jeopardy noncompliance – if it existed at all – is “past noncompliance” that CMS may remedy only with a single per-instance civil money penalty.  Petitioner’s brief at 23-25.

This argument finds no footing in law.  Whatever CMS’s policy may be, there is nothing in applicable regulations governing the imposition of remedies that bars CMS from imposing per-diem civil money penalties to redress noncompliance that occurs prior to a survey and that has ended as of the survey date.  42 C.F.R. Part 488; 42 C.F.R. § 488.438(a).  Nor do the regulations prohibit CMS from making a determination that deviates from its policy – whatever that policy may be – so long as the determination is consistent with regulatory requirements.  In sum, regulatory authority trumps whatever policies that may be in effect.  CMS may not follow its policy in any individual case if CMS wishes to disregard that policy in favor of that which regulations permit.

Moreover, the remedies that CMS determined to impose are not inconsistent with CMS’s policy.  CMS’s policy for imposing civil money penalties allows for per-diem penalties in circumstances for ongoing noncompliance that predates a survey under circumstances that include actual harm to a resident or residents.  Revision of Civil Money Penalty (CMP) Policies and CMP Analytic Tool, CMS S&C:  17-37-NH (eff. date July 17, 2017), at 2.

Here, and contrary to Petitioner’s assertions, its noncompliance was ongoing as of the date of the March 14 survey and continued through March 27, 2019.  Evidence obtained at an on-site survey of the facility showed that noncompliance, albeit at a scope and severity of less than immediate jeopardy, persisted until Petitioner finally rectified it as of March 28, 2019.  CMS Ex. 4 at 10-13.

Petitioner argues that it had attained full compliance as of March 1, 2019.  The facts that it relies on are insufficient to establish that contention.  Petitioner asserts that its staff received in-service training on March 1 in order to ensure that the staff complied with residents’ diets and ancillary orders when feeding residents.  P. Ex. 10.  I accept that assertion as true.  However, in-service training, standing alone, is not sufficient to prove that Petitioner attained compliance.  In order to prove compliance, the burden lies on Petitioner to show that the staff understood and applied what they learned at in-service training.  That could only be shown through observation of the staff as they performed their duties and assessment of the staff’s performance.  That was a purpose of the March 28, 2019 follow up survey.  CMS correctly concluded that it should not find compliance absent the assurances of satisfactory performance that were obtained at the follow up survey.

The undisputed facts of this case prove that training alone will not suffice to establish compliance.  The nursing assistant who gave a peanut butter and jelly sandwich to

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Resident 1 on the evening of February 28, 2019, was, according to Petitioner, extremely well trained.  She was negligent in spite of her training. 

In addition to these arguments, Petitioner contends that the civil money penalties that CMS imposed against it cannot be justified solely on facts pertaining to Petitioner’s noncompliance with the requirements of 42 C.F.R. § 483.25(d).  Petitioner notes that CMS determined that there was an additional deficiency.  It contends that the remedies cannot be justified in any event absent proof that Petitioner manifested two deficiencies.  Petitioner’s brief at 22-23.

I disagree.  The undisputed facts establish that Petitioner’s noncompliance with 42 C.F.R. § 483.25(d) is sufficiently egregious to justify the remedies that CMS determined to impose.  I would sustain these remedies even if I found no additional noncompliance.