Morris View Healthcare Center, DAB CR5942 (2021)

DECISION

Morris View Healthcare Center (Petitioner or “the facility”) is a skilled nursing facility (SNF) in Morris Plains, New Jersey that participates in the Medicare program.  Following a March 2018 survey, the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner was not in substantial compliance with Medicare participation requirements and imposed separate per-instance civil monetary penalties (PICMPs) of $20,405 and $5,000.  For the reasons discussed below, I uphold CMS’s determinations.

I.  Background

The Social Security Act (Act) establishes requirements for SNF participation in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  See 42 U.S.C. § 1395i-3; 42 C.F.R. pts. 483 and 488.  To participate in the Medicare program, SNFs must maintain substantial compliance with program participation requirements.  In order to be in substantial compliance, deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  Id.

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The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with participation requirements.  42 U.S.C. § 1395aa(a); 42 C.F.R. §§ 488.10, 488.20.  The Act and its implementing regulations require that facilities be surveyed on average every twelve months, and more often if necessary, to ensure that identified deficiencies are corrected.  42 U.S.C. § 1395i‑3(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  CMS may impose a per-day CMP for the number of days a facility is not in substantial compliance, or a PICMP for each instance of noncompliance.  42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. § 488.430(a).

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge (ALJ) to challenge the noncompliance finding and enforcement remedy.  42 U.S.C. §§ 1320a-7a(c)(2), 1395i‑3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

The Health Facility Survey and Field Operations division of the New Jersey Department of Health (state agency) completed a standard survey of Petitioner on March 15, 2018, at which time it determined that the facility was not in substantial compliance with Medicare program participation requirements.  CMS Ex. 1.  The state agency cited noncompliance with, inter alia, 42 C.F.R. § 483.25 (Tag F684, at the “L” level of scope and severity) and 42 C.F.R. § 483.160(i)(1),(2) (Tag F812, at the “F” level of scope and severity).  Scope and severity levels are used by CMS and state survey agencies when selecting remedies.  The scope and severity level is designated by letters A through L.  Pub. 100-7 (State Operations Manual), chap. 7, § 7400.3.1 (Matrix for Scope and Severity); see also 42 C.F.R. § 488.408.  As relevant here, a scope and severity level of “L” indicates a widespread deficiency that caused immediate jeopardy to resident health and safety.  Immediate jeopardy exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.  A scope and severity of “F” involves a widespread deficiency that has the potential to cause more than minimal harm to resident health and safety. CMS Ex. 1 at 1, 27.  In a letter dated June 1, 2018, CMS informed Petitioner that it had imposed separate $20,405 and $5,000 CMPs as enforcement remedies for the respective deficiencies. Because CMS imposed remedies for only two of the cited deficiencies, I do not address any other deficiencies cited in the statement of deficiencies.  CMS Ex. 2; see CMS Ex. 1.   CMS Ex. 2.

Petitioner, through counsel, timely requested a hearing on July 19, 2018. This case was reassigned to me on March 8, 2019.  CMS filed a pre-hearing brief and motion for summary judgment (CMS Br.), along with 23 proposed exhibits (CMS Exs. 1-23).  Petitioner filed a pre-hearing brief (P. Br.), opposition to

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CMS’s motion for summary judgment (P. Opposition), and 25 proposed exhibits (P. Exs. 1-25).

CMS submitted the written direct testimony of the supervising surveyor (CMS Ex. 21), and Petitioner submitted the testimony and statements of seven witnesses (P. Exs. 7-19).  Neither party has requested an opportunity to cross-examination witnesses, and therefore, a hearing is unnecessary.  This case is ready for a decision on the merits. Because there is no need for a hearing, I need not rule on CMS’s motion for summary judgment.

II.  Issues

The issues presented for review are:

Whether Petitioner failed to substantially comply with the Medicare participation requirement at 42 C.F.R. § 483.25 (cited as Tag F684);

Whether Petitioner failed to substantially comply with the Medicare participation requirement at 42 C.F.R. § 483.60(i)(1),(2) (cited as Tag F812);

Whether separate PICMPs of $20,405 and $5,000 are reasonable enforcement remedies.

III.  Discussion Findings of fact and conclusions of law are in bold and italics.

1. A speech therapist determined that Resident # 56 has dysphagia, is at risk for aspiration, and is totally dependent on facility staff for eating.

2. Resident # 56 had a plan of care that directed that nursing staff were responsible for implementing interventions supporting a goal that her head be properly positioned during meals.

3. Petitioner does not dispute that a surveyor observed a hospitality aide from its recreation/activities department feed Resident # 56 lunch.

4. Resident # 56’s plan of care directed the following feeding interventions with respect to the focus area of falls/safety:  Apply and remove a cervical collar; check skin integrity before application and after removal of the cervical collar; hold resident’s head gently and upright at 90 degrees with her head/face facing

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midline; feed slowly with a spoon and wait until mouth his clear, with a double swallow before the next spoonful.

5. Under a separate care plan focus area, staff interventions during meals included feeding a pureed diet, thickening of all liquids to honey consistency, and monitoring for signs and symptoms of swallowing difficulty.

Resident # 56, a woman who was born in 1980, was 25 years old at the time of her admission to the facility in October 2006.  Resident # 56’s diagnoses at the time of admission included cerebral palsy, dysphagia, convulsions, and microcephaly.  CMS Ex. 4 at 1.  Active diagnoses listed in a December 2017 Minimum Data Set (MDS) assessment include “dysphasia, oral phase.” The National Institutes of Health defines “dysphagia” as “difficulty swallowing.”  https://www.nidcd.nih.gov/glossary/dysphagia (last visited September 1, 2021).  CMS Ex. 3 at 19.

On September 8, 2017, a speech therapist reported that she had initiated speech therapy services three times per week for four weeks “for oral dysphagia.”  CMS Ex. 4 at 9.  The stated reason for the speech therapy services referral was “[h]igh risk of aspiration and/or significant weight loss with oral feedings.”  CMS Ex. 4 at 11.  On September 8, 2017, the speech therapist completed a “Feeding Program Guide & Caregiver Training” form for Resident # 56 that reported a diet of puree with honey-thickened liquids.  CMS Ex. 4 at 7.  The speech therapist checked off pre-printed selections and filled in information in the “General,” “Specifics,” and “Strategies” sections of the form, to include:

• Must be alert
• Seated at 90 degrees during meal [head of bed] fully upright
• Remain at 60 degrees for half hour after meal.
• Liquids thickened . . . to consistency of honey.
• Needs to be fed
• ASPIRATION RISK
• Alternate solids & liquids
• Small sips/bites
• Allow time between mouthfuls
• Other: hold head tightly at midline

CMS Ex. 4 at 7 (capitalization in original).  On September 8, 2017, the speech therapist reported, “skilled treatment recommended for consistent use of safe swallowing strategies and care giver education.”  CMS Ex. 4 at 16.  On a number of occasions between September 8 and October 5, 2017, the speech therapist worked with Petitioner’s staff to address “safe swallowing strategies.”  CMS Ex. 4 at 16-22.  The speech therapist did not

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train any of the hospitality aides from Petitioner’s recreation/activities department.  P. Ex. 15 at 1 (testimony of speech therapist).

A Speech Therapy Plan of Care, dated from September 8 through October 5, 2017, reported that therapy was “necessary for safe swallowing strategies and staff education, and “[w]ithout therapy [Resident # 56 is] at risk for aspiration.”  CMS Ex. 4 at 11.  In a progress note and discharge summary dated October 5, 2017, the speech therapist reported that “[s]afe swallowing strategies were demonstrated to staff,” which included “cervical collar to be used at all meal times, hold head gently at midline, alternate solid/liquids and pacing established by feeder.”  CMS Ex. 4 at 24.  The therapist reported that “[s]killed services provided since start of care included consistent use of safe swallowing strategies which limit aspiration risk.”  CMS Ex. 4 at 24.  In an October 5, 2017 note reporting that skilled speech therapy services had been discontinued, the speech therapist stated that “caregiver ed[ucation] [had been] completed.”  CMS Ex. 4 at 10.

Resident # 56 had a care plan focus for “Falls/Safety” that included a goal that she “will have her head properly positioned during feeding time/meals.”  CMS Ex. 4 at 32.  The care plan stated that the nursing staff was responsible for implementing certain interventions, such as the application of a soft cervical collar during meals, checking skin integrity before application and after removal of the cervical collar, holding Resident # 56’s head gently and upright at 90 degrees, feeding Resident # 56 with a spoon, and ensuring she “has done a double swallow before her next spoon of food.”  CMS Ex. 4 at 32.  Another care plan focus area, “Nutrition/Hydration,” listed goals of “maintain[ing] [a] weight of 83 +/- 2 pounds” and maintaining oral intake greater than or equal to 60 % of meals and fluids.  CMS Ex. 4 at 28.  Interventions to be handled by the nursing, certified nurse aide (CNA), and dietary staffs included feeding a pureed diet as ordered.  CMS Ex. 4 at 28.  Other interventions included thickening all liquids to honey consistency and “[m]onitor[ing] for signs and symptoms of swallowing difficulty.”  CMS Ex. 4 at 28.

Following the conclusion of speech therapy services, Petitioner documented that Resident # 56 was totally dependent on staff for eating and drinking.  CMS Ex. 3 at 11 (December 15, 2017 MDS assessment reporting that Resident # 56 required “full staff performance every time during the entire 7-day [assessment] period.”).  At the time of the December 2017 MDS assessment, Petitioner reported an active diagnosis of dysphagia and signs and symptoms of a possible swallowing disorder that included “[loss] of liquids/solids from mouth when eating or drinking” and “[h]olding food in mouth/cheeks or residual food in mouth after meals.”  CMS Ex. 3 at 19, 22.

Even though Resident # 56 had dysphagia and a complicated feeding regimen that her care plan directed would be implemented by the nursing staff, a surveyor observed Hospitality Aide (HA) # 6 from the recreation/activities department feed her lunch on

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March 2, 2018.  CMS Ex. 1 at 5; see CMS Exs. 4 at 28; 21 at 5-8; P. Ex. 19 at 1.  Although HA # 6 had been enrolled in a nurse aide training and competency evaluation program (NATCEP) at the time of the survey, HA # 6 had not yet passed the nurse aide competency evaluation consisting of a skills demonstration and oral/written examination.  P. Exs. 4 at 1; 22 at 1; see 42 C.F.R. § 483.154.

6. A speech therapist determined that Resident # 124 has dysphagia, is at risk for aspiration, and is totally dependent on staff for eating.

7. Resident # 124 had a plan of care that directed that the nursing and dietary staffs were responsible for providing “Regular/Puree Consistency/Nectar Thickened Liquid diet with fortified foods.”

8. Petitioner does not dispute that a surveyor observed HA # 1 feed Resident # 124 lunch during the survey.

9. A Feeding Program Guide & Caregiver Training directed the following steps at meals:  Position resident at 90 degrees; thicken liquids to the consistency of nectar/syrup; alternate solids and liquids; provide small sips and bites of food; and allow time between mouthfuls.

Resident # 124, a man who was born in 1933, had been admitted to the facility in 2013 with a primary diagnosis of Alzheimer’s disease.  CMS Ex. 6 at 1.  On March 15, 2016, a physician ordered a speech therapy evaluation for swallowing.  CMS Ex. 6 at 18.  The speech therapist reported that she had been “consulted secondary to [nursing] reports of patient hav[ing] difficulty chewing/swallowing current direct consistency,” that speech therapy was “necessary for safe swallowing,” and that Resident # 124 is “at risk for aspiration/malnutrition” without therapy.  CMS Ex. 6 at 20.  On March 24, 2016, the speech therapist initiated a six-week course of treatment for “dysphagia management.”  CMS Ex. 6 at 19.

A March 31, 2016 Feeding Program Guide & Caregiver Training form completed by the speech therapist reported that Resident # 124 required a puree and nectar liquids diet.  CMS Ex. 6 at 17.  The speech therapist instructed that Resident # 124 must be seated at 90 degrees during meals, that liquids be thickened to the consistency of nectar/syrup, and that he have small sips/bites with time allowed between mouthfuls.  CMS Ex. 6 at 17.  A Speech Therapy Plan of Care listed a treatment diagnosis of “Dysphagia, oropharyngeal phase.”  CMS Ex. 6 at 20.

Upon Resident # 124’s discharge from speech therapy services on April 29, 2016, the speech therapist reported that the services had “focused on diet texture analysis and to complete caregiver training [regarding] feeding techniques.”  CMS Ex. 6 at 31.  The speech therapist reported that Resident # 124 is “dependent for feeding” and is “unable to

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utilize [feeding] strategies secondary to severe cog[nitive] deficits.”  CMS Ex. 6 at 31.   The speech therapist listed precautions of “fall” and “aspiration,” and further notes that the impact on burden of care and daily life was that Resident # 124 was dependent for feeding and “[o]ften requires cues to open mouth for bolus acceptance.”  CMS Ex. 6 at 31.

Resident # 124’s care planning did not address his dysphagia, dependence on staff for feeding, or the feeding strategies implemented by the speech therapist.  CMS Ex. 6 at 6-16.  Although a care plan focus dating back to 2014 addressed nutrition, it addressed a history of unplanned weight fluctuations.  CMS Ex. 6 at 6.  The same care plan focus included an intervention that nursing and dietary staff were responsible for providing a “Regular/Puree Consistency/Nectar Thickened Liquid diet with fortified foods at all meals as ordered.”  CMS Ex. 6 at 6.  Petitioner continued to recognize the diagnosis of dysphagia as recently as January 24, 2018 (CMS Ex. 6 at 5), but a January 12, 2018 MDS assessment neither listed a diagnosis of dysphagia nor reported any signs or symptoms of a swallowing disorder.  CMS Ex. 5 at 11, 19, 22.

A surveyor observed HA # 1 feed Resident # 124 “a pureed diet with nectar thick liquids for lunch.”  CMS Ex. 1 at 2; see CMS Ex. 21 at 3-4.  HA # 1 was enrolled in a NATCEP at the time of the survey, but had not yet taken and passed the nurse aide competency evaluation consisting of a skills demonstration and oral/written examination.  P. Exs. 3 at 1; 22 at 1; see 42 C.F.R. § 483.154.

10. Resident # 222 had a history of “chok[ing] at meal time,” and a speech therapist determined that Resident # 222 had dysphasia, was at risk for aspiration, and “[n]eed[ed] to be fed.”

11. Resident # 222 had a plan of care that directed that the nursing, CNA, and dietary staffs were responsible for providing her a pureed diet.

12. Petitioner does not dispute that a surveyor observed HA # 1 feed Resident # 222 lunch during the survey.

13. A Feeding Program Guide & Caregiver Training form directed the following steps at meals:  Position resident at a 90 degree angle; thicken liquids to honey consistency; alternate solids and liquids; allow time between mouthfuls; give reminders to swallow; and position resident at a 60 degree angle at the end of the meal.

Resident # 222, a woman who was born in 1933, was admitted to the facility in 1999 with diagnoses that included multiple sclerosis and “other Alzheimer’s disease.”  CMS Ex. 8 at 1.  On May 8, 2016, a physician ordered a “speech eval[uation] . . . [secondary to] cough [with] food.”  CMS Ex. 8 at 19; see CMS Ex. 8 at 22 (reporting that the reason for

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referral was “[c]hoking during meal time.”).  A Feeding Program Guide & Caregiver Training form completed on May 10, 2016, directed that Resident # 222 had a diet of puree with honey-thickened liquid.  CMS Ex. 8 at 17.  The speech therapist who completed the form instructed that, when eating, Resident # 222 must be alert, seated at 90 degrees, and remain at 60 degrees for a half hour after the meal.  CMS Ex. 8 at 17.  The speech therapist reported that Resident # 222 was an “ASPIRATION RISK” and that she “[n]eeds to be fed.”  CMS Ex. 8 at 17 (capitalization in original).  Feeding strategies included alternating solids and liquids, allowing time between mouthfuls, and giving reminders to swallow.  CMS Ex. 8 at 17.

A Speech Therapy Plan of Care dated for the period May 10 through June 8, 2016, reported a treatment diagnosis was “Dysphagia, oral phase.”  CMS Ex. 8 at 22.  The plan of care listed precautions that included the following:  “No thin liquids.  Recommended diet is puree with [honey-thinned liquids].  Positioning during oral intake must be 90 degrees.  Low endurance – needs frequent rests.”  CMS Ex. 8 at 22.

Care planning for Resident # 222 includes a Nutrition/Hydration focus area, with the nursing, CNA, and dietary staffs being responsible for providing a pureed diet.  CMS Ex. 8 at 7.  The care plan also directed that liquids be thickened to honey consistency, and that Resident # 22 be monitored for signs and symptoms of swallowing difficulty.  CMS Ex. 8 at 7

On March 2, 2018, a surveyor observed HA # 1 feeding breakfast to Resident # 222.  CMS Ex. 1 at 4; see CMS Ex. 21 at 4-5.  Although HA # 1 was enrolled in a NATCEP at the time of the survey, HA # 1 had not yet taken and passed the nurse aide competency evaluation consisting of a skills demonstration and oral/written examination.  P. Exs. 3 at 1; 22 at 1; see 42 C.F.R. § 483.154.

14. Petitioner employs hospitality aides “as a sub group of its recreation/activities department,” and the hospitality aides report to the Recreation Director.

15. Petitioner’s hospitality aides policy and procedure states that hospitality aides “assist the resident to attend community meals and activities of choice” and “are not to be providing direct care to any resident.”

16. The hospitality aides policy and procedure does not include any provision for hospitality aides to feed individual residents outside of community meals.

17. Petitioner’s hospitality aides policy and procedure incorporates the hospitality job description, stating that hospitality aides are trained through a “comprehensive feeding module, in addition to the job description.”

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18. The hospitality aide job description includes the following duties and responsibilities related to resident meals: Transporting residents to and from the dining room, assisting residents with menu selections, collecting menus, delivering trays to residents who eat independently, opening containers for residents who eat independently, observing resident food intake and notifying a  nurse of poor intake or if menu substitutes may be necessary because a resident is not eating.

19. The hospitality aide job description, under the heading of “Prohibited Activities,” states that certain “actions/activities are specifically prohibited in/by this position.”

20. The hospitality aide job description, under the heading of “Prohibited Activities,” states, “Employee may not feed residents.”

21. The hospitality aide job description, under the heading of “Prohibited Activities,” states, “Employee may not add thickener to beverages unless directly observed by a nurse.”

22. Petitioner utilized a pre-printed “Hospitality Assistant” competency and performance evaluation form that mirrors the job description and states the following, under the heading of Prohibited Activities:  “Employee may not feed residents unless employee is a certified feeding assistant.”

23. Pursuant to 42 C.F.R. §§ 483.60(h) and 483.160, a paid feeding assistant must complete a state-approved training course for paid feeding assistants.

24. At the time of the survey, New Jersey did not have a state-approved training course for paid feeding assistants.

25. Feedings assistants, as contemplated by 42 C.F.R. § 483.60(h), may only provide dining assistance to residents who have “no complicated feeding problems,” to include difficulty swallowing.

26. Dysphagia is defined as difficulty swallowing.

27. Resident # 56, Resident # 124, and Resident # 222 had complicated feeding problems, as evidenced by each resident having been diagnosed with dysphagia, being unable to eat independently, and requiring specific feeding strategies to prevent the risk of aspiration.

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28. Petitioner allowed its hospitality aides to feed residents who had complicated feeding problems.

29. By allowing hospitality aides to feed Resident # 56, Resident # 124, and Resident # 222, Petitioner failed to comply with its own hospitality aides policy and procedure and the incorporated job description.

30. By allowing hospitality aides to feed Resident # 56, Resident # 124, and Resident # 222, Petitioner failed to comply with care planning that required that nursing staff and CNAs provide specified feeding interventions.

31. By allowing hospitality aides to feed three residents with complicated feeding problems, Petitioner failed to comply with 42 C.F.R. § 483.25, which requires it to ensure that residents receive treatment and care in accordance with professional standards of practice and the comprehensive person-centered care plan.

 
Pursuant to Sections 1819(b)(5)(F) and 1919(b)(5)(F) of the Act, 42 U.S.C. §§ 1395i-3(b)(5)(F), 1396r, facility nurse aides provide “nursing or nursing-related services to residents.”  The Secretary requires, at a minimum, that facility nurse aide competencies include “[a]ssisting with eating and hydration and “[p]roper feeding techniques.”  42 C.F.R. § 483.152(b)(3)(v),(vi).  In implementing rulemaking in 2003 that allowed facilities to utilize feeding assistants, CMS explained that the inclusion of feeding in the nurse aide training curriculum “was predicated on the nurse aide having to tend to persons with pronounced eating complications (such as swallowing disorders) for which specialized training is essential.”  68 Fed. Reg. 55, 528, 55,531 (Sept. 26, 2003).  CMS recognized that under the authorities in effect until that time, facility residents “must be fed by a registered nurse, licensed practical nurse, or a nurse aide who has completed 75 hours of training and who has been certified as competent to perform all nurse aide tasks.” CMS recognized that “volunteers, who are usually family members, may also feed residents, because the law and regulations exclude volunteers from the definition of certified nurse aide.”  68 Fed. Reg. 55,529.  68 Fed. Reg. 55,529.  The September 2003 final rule implemented a new regulatory authority for SNFs to utilize paid feeding assistants who “would not handle complicated feeding cases,” with the stated intent of the newly authorized feeding assistant position “[being] to provide more residents with help in eating and drinking and reduce the incidence of unplanned weight loss and dehydration.”  68 Fed. Reg. 55,528, 55, 529.  Through the new regulatory authority, CMS “intended to supplement certified nurse aides, not substitute for certified or licensed nursing staff.”  68 Fed. Reg. 55,530.  CMS expected that “facilities would be free . . . to use persons who have a lesser level of training to assist residents who have no feeding issues that require specialized attention.”

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68 Fed. Reg. 55,531; see 68 Fed. Reg. 55,532 (“We do not believe it is appropriate for feeding assistants to feed any residents other than those who are low risk and whose eating problems are uncomplicated.”).

In authorizing SNFs to utilize feeding assistants who had completed state-approved training, CMS recognized that “[a] higher level of training is required of nurse aides because nurse aides need to be able to deal with complicated feeding problems,” and likewise, it is “reasonable to require that feeding assistants receive a lower level of training than a nurse aide because feeding assistants would not handle complicated feeding cases.”  68 Fed. Reg. 55,529.  CMS anticipated that facilities utilizing feeding assistants may opt “to use existing staff whose primary function is not direct care of residents, such as administrative and activities staff.”  68 Fed. Reg. 55,538.  CMS also acknowledged that facilities using feeding assistants “may incur less cost than if they had hired additional certified nurse aides to perform feeding and hydration duties” because “feeding assistants will likely be paid at a minimum wage.”  68 Fed. Reg. 55,532.

In 2017, Petitioner established a hospitality aide position within its recreation/activities department. I use the term “hospitality aide,” which is the term used by the facility’s Administrator.   P. Ex. 8 at 1; see CMS Ex. 10 at 1 (“Hospitality Aide” job description); but see CMS Ex. 10 at 3 (“Hospitality Assistant” evaluation form); P. Ex. 19 at 1 “Hospitality Aid” policy and procedure).  P. Ex. 8 at 1 (testimony of Administrator).  A facility document, “Hospitality Aids [Sic] Policy and Procedure,” states that the facility employs hospitality aides “as a sub group of the recreation/activities department” and that the “purpose” of hospitality aides is “to enhance the efforts, of nursing, housekeeping and activities in keeping the resident comfortable and safe, the resident’s possessions and environment orderly and comfortable, and to assist the resident to attend community meals and activities of choice.”  P. Ex. 19 at 1; see CMS Ex. 1 at 15-16 (addressing the facility policy).  The policy reported that hospitality aide training “consists of a comprehensive feeding module, in addition to the job description.”  P. Ex. 19 at 1.  The hospitality aide job description, in turn, states that hospitality aides report to the Director of Recreation, and have duties that include, but are not limited to, delivering trays to residents “who eat independently,” “open[ing]containers if indicated,” observing residents for intake, requesting substitutes if a resident is not eating, and notifying a nurse of poor intake.  CMS Ex. 10 at 1.  The hospitality aide job description, under the heading, “Prohibited Activities,” states:

• Employee may not feed residents.
• Employee may not add thickener to beverages unless directly observed by a nurse.

CMS Ex. 10 at 2.

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Petitioner utilized a pre-printed hospitality aide competency and performance evaluation form that largely mirrors the job description and contains fields for Petitioner to assess competency and evaluate performance of the “Duties and Responsibilities” of the position.  Compare CMS Ex. 10 at 3-6 with CMS Ex. 10 at 1-2.  One assessment/evaluation element relates to the following task:  “Delivers trays to residents who eat independently; opens containers if indicated; observes residents for intake; requests CNAs/nurse to offer substitute if not eating. Notifies nurse if poor intake observed.”  CMS Ex. 10 at 4; see P. Ex. 21 at 2, 8, 14, 20, 26.  Another element pertains to the task of “Transports wheelchair and independently ambulating residents to activities, to unit dining room or main dining room and back.”  CMS Ex. 10 at 4; see P. Ex. 21 at 2, 8, 14, 20, 26.  The form includes a “Prohibited Activities” section stating that six “actions/activities are specifically prohibited in/by this position.”  CMS Ex. 10 at 4; see P. Ex. 21 at 2, 8, 14, 20, 26.  One prohibited activity, “Employee may not feed residents unless employee is a certified feeding assistant,” is not accompanied by separate fields for Petitioner to assess competency and evaluate performance, but rather, lists “NA” in place of such fields.  CMS Ex. 10 at 4; but see P. Ex. 21 at 8, 14, 20, 26 (handwritten edits to completed forms that replace the word “trained” for “certified” and strike through “NA”).

The supervising surveyor testified that, at the time of the March 2018 survey, “there is no State-approved training course for feeding assistants” in New Jersey.  CMS Ex. 21 at 2; but see P. Ex. 8 at 1 (testimony of Administrator that “the State of New Jersey did not have any regulations that would prevent HA’s [sic] from being trained to feed residents.”). Pursuant to 42 C.F.R. § 483.160(a), a feeding assistant must complete a “State-approved training course for paid feeding assistants.”  Petitioner recognized that New Jersey “has specifically declined to develop and adopt a paid feeding assistant program.”  P. Br. at 16.  Petitioner acknowledges that, at the time of the survey, New Jersey had not adopted a paid feeding assistant program.  P. Br. at 17 (“Because New Jersey never adopted or approved a paid feeding assistant program, the federal regulations and interpretive guidance to surveyors pertaining to this program are not applicable in New Jersey.”).  The Administrator testified that the hospitality assistant “job function is not to serve as a ‘paid feeding assistant.’”  P. Ex. 8 at 1.  However, Petitioner’s CASPER report of individual daily staffing for the final quarter of 2017 reported 1,415 staff hours performed by 27 “Feeding Assistants.”  CMS Ex. 20 at 1; see CMS Ex. 1 at 17 (statement of deficiencies discussion of the reported “Feeding Assistant” staff hours in the CASPER report).

A speech therapist submitted testimony clarifying her statements to the surveyors.  P. Ex. 15.  The speech therapist testified that she had neither trained the hospitality aides nor had been approached to train the hospitality aides.  P. Ex. 15 at 2.  The speech therapist

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also testified that she had informed the surveyor that a “dysphagia patient” would be at risk for aspiration if the person feeding him or her had not been trained.   P. Ex. 15 at 2.

The Director of Nursing (DON) testified that she had informed a surveyor that the hospitality aides “were part of the Recreation Department, not the nursing department[,] and do not report to [the DON], nor [is the DON] involved in any of their training.”  P. Ex. 11 at 1; see P. Ex. 9 at 1 (testimony of the Recreation and Volunteer Coordinator that she supervises the hospitality aide program).

A Unit Manager testified that hospitality aides “could not feed residents in the rooms” and “had to be in an area where they could be observed feeding by a nurse.”  P. Ex. 13 at 1.  The Unit manager explained that it “was not [her] role to educate [hospitality aides],” as they would be referred back to the Clinical Educator.”  The Unit Manager also reported that, “for safety,” she would redirect or replace hospitality aides whose “technique feeding could be more efficient.”  P. Ex. 13 at 2.

Petitioner submitted the testimony of Gail Rader, RN, MSN, CALA, the owner of Care Perspectives, Inc., who reported she “reviewed the records provided in order to render [her] professional expert opinion about the findings resulting from the annual survey . . . .”  P. Ex. 7; see P. Ex. 5 (Ms. Rader’s letter to counsel for Petitioner).  Ms. Rader focused her conclusions to the question of immediate jeopardy, which is not a matter for consideration (as explained below).  See P. Ex. 7 at 18 (conclusion that “the surveyor finding that every resident of Morris View was at risk for serious injury or death is blatantly false”).  Ms. Rader also offered an unsupported conclusion that “the HAs who fed Residents #124, #222, and #56 followed the feeding guidelines for each resident in place for multiple years and were always directly supervised by licensed nurses.”  P. Ex. 7 at 18.  Ms. Rader does not point to evidence that hospitality aides were “always directly supervised by licensed nurses.”  Rather, the evidence indicates that nurses were merely present when the hospitality aides fed residents.  P. Exs. 9 at 1 (Recreation and Volunteer Coordinator’s testimony that hospitality aides “never fed a resident in their room and always had a Nurse present when they were feeding”); 13 at 1 (testimony of Unit Manager that hospitality aides “could not feed residents in the rooms” and “had to be in an area where they could be observed feeding by a nurse”).

Ms. Rader’s opinion is flawed for other reasons.  For example, Ms. Rader relies on the absence of, or her inability to identify, care planning for dysphagia as a basis to support her conclusions.  Compare P. Ex. 7 at 6 (discussing that Resident # 124’s care plan problem list “did not indicate . . . risk for harm, injury or death when eating); 9 (discussing “[t]here was no problem for dysphagia or swallowing issues identified on [Resident # 222’s] care plan”); 11 (discussing that “[t]here was no problem for dysphagia or swallowing identified on [Resident # 56’s] care plan”) with CMS Ex. 6 at 5 (January 2018 diagnosis of dysphagia for Resident # 124 reported on a facility record); 8 at 7 (care plan requiring monitoring of Resident # 222 for “signs and symptoms of swallowing

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difficulty”); CMS Ex. 3 at 19, 21 (December 15, 2017 MDS assessment listing an active diagnosis of dysphagia and reporting signs and symptoms of a possible swallowing disorder).  Further, Ms. Rader faults the surveyors for “us[ing] records that were two years old and disregarding medical records,” yet fails to identify records pre-dating March 2, 2018 (the date the surveyor observed Resident # 222 being fed by HA # 1) indicating that feeding techniques for dysphagia had been discontinued.  P. Ex. 7 at 9.  And quizzically, even though Ms. Rader points to a December 12, 2017 progress note that Resident # 222 “eats dessert and drinks juices independently” (P. Ex. 7 at 8), Petitioner reported, in a February 2018 MDS assessment, that Resident # 222 was totally dependent on staff for eating and required full staff performance every time during the entire 7-day period.  CMS Ex. 7 at 11.  Similarly, although Ms. Rader opined that Resident # 56 “was properly fed by HA #6” and that HA # 6 “fed her per the prescribed feeding plan,” Ms. Rader failed to address how a recreation/activities staffer had the training and competency to assess the resident’s skin integrity as required when applying and removing the cervical collar. Petitioner does not point to any evidence that it trained its hospitality aides to perform the nursing function of assessing skin integrity.  In fact, its own policy directed that hospitality aides “are not to be providing direct care to any resident.”  P. Ex. 19 at 1.  CMS Ex. 4 at 32 (care plan directing skin integrity checks prior to and after removing cervical collar); see CMS Ex. 9 (feeding training slide presentation lacking any training in assessing skin integrity) and 10 (job description and competency assessment/performance evaluation form, both lacking a duty/responsibility involving skin integrity assessments).  And to the extent Ms. Rader also opined that the surveyors “did not properly interpret the historical medical records of Resident # 124 . . . and totally disregarded [her] current medical needs,” Ms. Rader does not point to any “historical medical records” that override the feeding techniques that were implemented to address the resident’s continued to be at risk for aspiration, inability to utilize feeding strategies, and dependence for feeding.  P. Ex. 7 at 7; CMS Ex. 6 at 31.

Finally, Ms. Rader opined that each hospitality aide was “competent and safe to feed residents prior to being given an individual assignment.”  P. Ex. 7 at 18.  However, Ms. Rader does not address how the eight-hour in-house facility training program provided the training and skills necessary for hospitality aides to safely feed residents with complicated feeding problems.  P. Ex. 7.  Further, Ms. Rader, in claiming that the hospitality aides “had successfully completed the NATCEP program [sic],” failed to acknowledge that the hospitality aides had neither passed the nurse aide skills demonstration or the oral/written examination. I need not address Ms. Rader’s opinion regarding the deficiency cited under 42 C.F.R. § 483.60(i)(1),(2) because her opinion is that the facility corrected the deficient practices “in front of the surveyor.”  P. Ex. 7 at 17.  Ms. Rader offers no support for her apparent proposition that the on-the-spot correction of a deficiency obviates a finding of noncompliance with a Medicare participation requirement.  P. Ex. 7.  P. Ex. 7 at 18; see P. Exs.  3, 4, 22.

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Pursuant to 42 C.F.R. § 483.25, “[b]ased on the comprehensive assessment of a resident, [a] facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices.”  The Departmental Appeals Board (DAB) has determined that CMS “may reasonably rely on a facility’s policy relating to the care and treatment of its residents as evidencing the facility’s understanding of what must be done to attain or maintain residents’ highest practicable physical, mental, and psychosocial well-being, as required by section 483.25.”  The Laurels at Forest Glenn, DAB No. 2182 at 18 (2008).  The DAB “has long held that a facility’s own policy may be sufficient evidence both of professional standards of quality and of what the facility has determined is needed to meet the quality of care requirements.”  Hanover Hill Health Care Ctr., DAB No. 2507 at 6 (2013).  Further, when ensuring that residents receive treatment and care, a facility must do so in accordance with the person-centered plan of care.  42 C.F.R. § 483.25; see Venetian Gardens, DAB No. 2286 at 5 (2009) (“The [DAB] has repeatedly stated that a facility’s failure to follow its care plan . . . may be grounds for concluding that the facility is not in substantial compliance with section 483.25 quality of care standards.”); Azalea Court, DAB No. at 2352 at 9 (2010) (The DAB “has observed that where a facility itself requires specific measures be taken . . . in the care plans it develops for its residents, those measures are evidence of the facility’s evaluation of what must be done to attain or maintain a resident’s ‘highest practicable physical, mental, and psychosocial well-being.’”); Spring Meadows Health Care Ctr., DAB No. 1966 at 17 (2005) (stating that the “clearest case” of failure involving section 483.25 includes a failure to follow the plan of care).

Petitioner does not dispute that its hospitality aides fed residents.  See P. Br. at 12 (“The feeding aspect of the position was one small part of the daily tasks performed by HAs during their eight-hour shift.”); see also P. Ex. 9 at 3 (Recreation and Volunteer Coordinator’s testimony, “When HA’s were able to feed the residents, they provided one-on-one attention and were able to feed the residents in a more timely and efficient manner.”).  During the course of the survey, the surveyors observed that the hospitality aides fed several residents, namely Resident # 56, Resident # 124, and Resident # 222.  See CMS Ex. 21 at 2.  Petitioner does not dispute that its hospitality aides fed those residents.  P. Br. at 5-14.  Nor does Petitioner dispute that these residents did not eat independently and required specialized feeding techniques.  See P. Br. at 6 (stating that the hospitality aide positioned Resident # 124 at a 90 degree angle, alternated solids and liquids, provided small sips and bites food, and allowed time between mouthfuls); 7-8 (discussing that the hospitality aide positioned Resident # 222 at a 90 degree angle, alternated solids and liquids, allowed time between mouthfuls and provided verbal reminders to swallow); 9-10 (acknowledging that Resident # 56’s “feeding orders were very specific,” and that the hospitality aide positioned her at a 90 degree angle, “applied the soft cervical collar as ordered by the physician and recommended by therapy,” held her head “upright at midline as ordered,” “alternated solids and liquids with pacing between food and drink items and feeding the resident slowly with a spoon waiting for

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the resident to swallow each spoonful of food,” and positioned her at a 60 degree angle at the end of the meal).

By making the misleading claim that both HA # 1 and HA # 6 “received more education to safely feed residents than a C.N.A., successfully completing both the NATCEP program and the facility feeding assistant training,” Petitioner implies that its hospitality aides were more competent and qualified to feed residents than CNAs.  P. Br. at 13-14.  But this is not true.  Nurse aides who have completed a NATCEP and passed a competency evaluation consisting of both a skills demonstration and a written/oral examination may be included on a state’s nurse aided registry.  42 C.F.R. § 483.154.  At the time of the survey, nurse aides certified by the State of New Jersey were required to complete a 90-hour NATCEP course consisting of 50 classroom hours and 40 clinical hours, provide evidence of good and moral character (e.g., pass a criminal background check), pass a clinical skills competency examination, and pass a written/oral examination.  N.J.A.C. § 8:39-43.2. The State of New Jersey, in response to the COVID-19 pandemic, temporarily relaxed nurse aide certification requirements.   See Notice of Rule Waiver/Modification Suspension (April 7, 2020), https://www.nj/gov/health/legal/covid19/4-14-2020_nurseaidetempcert_waiver.pdf (last visited September 1, 2021).  Neither HA # 1 nor HA # 6 had passed either the CNA skills demonstration or the oral/written examination, and therefore, neither hospitality aide had demonstrated the competency and skills proficiency of a CNA.

Even accepting that Petitioner’s hospitality aides were aspiring nurse aides who had partially completed the training necessary to attain nurse aide certification, Petitioner has not presented evidence that its hospitality aides were as capable as nurse aides at the time of the survey.  See P. Exs. 3, 4 (reflecting that, at the time of the survey, the hospitality aides had not yet passed a skills demonstration); P. Ex. 22 (reporting that HA # 1 and HA # 6 were scheduled to complete the NATCEP classes on March 17, 2018); see CMS Ex. 1 at 1 (reporting a survey completion date of March 15, 2018).  Further, a completed competency assessment/performance evaluation form for HA # 1, who fed both Resident # 124 and Resident # 222, lacks a showing of competency in feeding residents.  P. Ex. 21 at 8.  The same form for HA # 6 includes an undated “check” alongside “NA” alongside the listed “prohibited” activity (whereas a date of assessment is provided for all other assessed competencies).  P. Ex. 21 at 20.

Petitioner argues each hospitality aide had “successfully completed  . . . an eight hour feeding assistant program.”  P. Br. at 21-22.  I note that the eight-hour program involves ten topics, only two of which specifically pertain to feeding techniques and assistance with feeding and hydration.  CMS Ex. 9 at 1.  Of 133 PowerPoint slides used by Petitioner in the training program, only 28 of those slides pertain to feeding, with six slides containing non-substantive cartoon illustrations.  CMS Ex. 9 at 2-10.  Although two slides describe the stages of a swallow and the process for swallowing, neither of

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these slides addresses feeding techniques for residents with dysphagia (other than explaining that dysphagia is a reason for diet modification).  CMS Ex. 9 at 7-8.  Further, although one slide lists the “Three Basic Consistencies” of thickened liquids, there is no discussion of feeding techniques involving these consistencies.  CMS Ex. 9 at 9.  In fact, the sole “Feeding Techniques” slide addressing eating and drinking assistance lists the following four simplistic phrases without addressing complicated feeding problems:  “Setting up; Verbal cues; Sit at eye level; Do not mix foods together.”  CMS Ex. 9 at 10.  Petitioner’s training slides do not address the complex feeding techniques utilized with Resident # 56, Resident # 124, and Resident # 222, such as positioning the resident at the correct angle; alternating sipping and swallowing; pacing a resident’s meal; applying and removing a cervical collar, to include assessing skin integrity; making sure a resident is alert; giving a resident reminders to swallow; and, holding a resident’s head in place while feeding the resident at the same time.  See CMS Ex. 4 at 7; 6 at 17; 8 at 17.  The lack of training in the aforementioned topics is not unexpected; although Petitioner claims its training “met the federal regulations for the education of paid feeding assistants,” it fails to recognize that a state-approved training program would presumably not address topics involving “complicated feeding problems” that are outside the scope of a feeding assistant’s duties.  P. Br. at 13; see 42 C.F.R. §§ 483.60(h), 483.160.

By allowing its recreation/activities staff to feed residents with complicated feeding problems, Petitioner failed to ensure that its residents received treatment and care in accordance with standards of practice and the comprehensive person-centered care plans in place for its residents, as required by 42 C.F.R. § 483.25.  As previously discussed, the care plans for Resident # 56, Resident # 124, and Resident # 222 placed responsibility on the nursing staff, CNAs, and dietary staff, and not the recreation/activities department, for certain feeding-related interventions.  See CMS Exs. 4 at 28, 32; 6 at 6; 8 at 7; see Azalea Court, DAB No. 2352 at 9 (“The fact that the regulations do not specify that a particular type of care is necessary to meet a requirement does not prevent a finding of noncompliance when the facility itself has determined that type of care is necessary.”).  By allowing hospitality aides to provide interventions that should have been provided by the staff disciplines listed in the care plans, Petitioner did not adhere to individual care plans addressing individualized feeding techniques.

Further, Petitioner failed to adhere to its own policy and procedure stating that the purpose of hospitality aides is, in part, “to assist the resident to attend community meals.”  P. Ex. 19 at 1.  That same policy and procedure also incorporated the hospitality aide job description that prohibits hospitality aides from feeding residents.  CMS Ex. 10 at 2; see also CMS Ex. 10 at 4 (pre-printed evaluation form stating that feeding residents is a prohibited activity and listing “NA” in lieu of fields for Petitioner to assess competency and evaluate performance).  By permitting its hospitality aides to feed residents, particularly residents with complicated feeding problems, Petitioner placed dysphagic residents at risk for aspiration when it disregarded its own policy setting the parameters for hospitality aide duties.  See CMS Exs. 4 at 11; 6 at 20; 8 at 17.  Petitioner allowed

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recreation/activities staff aides to provide care plan interventions that were designed to be provided by more qualified staff, and it allowed these hospitality aides to feed residents in contravention of its own policy and procedures and the job description for the position.  Petitioner failed to ensure that its residents received treatment and care in accordance with standards of practice and the comprehensive person-centered care plans in place for its residents, as required by 42 C.F.R. § 483.25.  Petitioner was not in substantial compliance with section 483.25, and its noncompliance posed a risk to resident health and safety.  See CMS Exs. 4 at 11; 6 at 20; 8 at 17; P. Ex. 15 at 2.

32. Petitioner may not challenge the immediate jeopardy determination.

Petitioner argues that any noncompliance with 42 C.F.R. § 483.25 did not cause immediate jeopardy to resident health and safety.  Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.  42 C.F.R. § 488.301.  The regulations authorize an ALJ to review CMS’s scope and severity findings (which includes a finding of immediate jeopardy) only if a successful challenge would affect:  (1) the range of the CMP amounts that CMS could collect; or (2) a finding of substandard quality of care that results in the loss of approval of a facility’s NATCEP.  42 C.F.R. § 498.3(b)(14), (d)(10)(i)-(ii); NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7 (2014).  Unlike per-day CMPs, under the regulations there is only a single monetary range for a per‑instance CMP regardless of whether or not immediate jeopardy is present, and therefore, the immediate jeopardy finding does not affect the penalty range.  42 C.F.R. §§ 488.408, 488.438(a)(2).  CMS argued that Petitioner did not have a NATCEP, and Petitioner does not claim otherwise. To the contrary, Petitioner submitted evidence that its hospitality aides were enrolled in a NATCEP at the ACE HealthCare Training Institute, Inc.  P. Exs. 3, 4.  See CMS Br. at 6.  Because a successful challenge of the finding of immediate jeopardy would neither change the CMP range nor cause the loss of approval for a NATCEP, “CMS’s immediate jeopardy finding is not reviewable in this administrative proceeding.”  38-40 Freneau Avenue Operating Co. LLC, DAB No. 3008 at 12 (2020); see Oaks of Mid City Nsg. & Rehab., DAB No. 2375 at 24 (2011) (“Because review of the immediate jeopardy finding would not affect the applicable CMP range, and because there is no assertion (much less evidence) that a substandard quality of care finding resulted in [the facility’s] loss of nurse aide training approval, [the facility] does not have a right to an administrative law judge hearing or [DAB] review concerning CMS’s immediate jeopardy determination.”).

Petitioner argues that sub-regulatory policy guidance somehow authorizes an ALJ to review the immediate jeopardy determination; it does not.  See P. Br. at 23-24, citing P. Exs. 24 (CMS Analytic Tool User’s Guide, Version 1.0); 25 (CMS Policy Memorandum S&C: 15-16-NH, Dec. 14, 2014).  I am bound to follow regulations, and I may not review

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the immediate jeopardy determination because it is not an initial determination.  See 42 C.F.R. § 498.3(b)(14), (16).

33. Petitioner does not dispute that surveyors observed deficient practices involving Petitioner’s storage, preparation, distribution, and service of food in accordance with professional standards for food service safety, and claims that it “immediately corrected” any deficiencies during the survey.

34. Petitioner failed to adhere to its own policy addressing food storage, preparation, distribution, and service of food in accordance with professional standards for food safety, in contravention of the participation requirement at 42 C.F.R. § 483.60(i)(1),(2).

35. Because Petitioner’s deficient food safety practices placed residents at more than a minimal risk of harm, Petitioner was not in substantial compliance with 42 C.F.R. § 483.60(i)(1),(2).

Pursuant to 42 C.F.R. § 483.60(i)(1),(2), a facility must procure food from sources approved or considered satisfactory by federal, state, or local authorities, and store, prepare, distribute, and serve food in accordance with professional standards for food service safety.

On March 2, 2018, surveyors documented conditions that included the following:

• A one-gallon container of expired milk was stored in the cold production refrigerator.  Petitioner’s Food Service Director (FSD) discarded the milk.
• Ham was stored inside a square pan covered with plastic wrap in the cold production refrigerator; neither the opened date nor the discard date was listed on the container.  The FSD discarded the ham.
• Pre-cooked roast beef was stored in plastic wrap on the top shelf of the cold production refrigerator; the package did not list the opened date.  The FSD discarded the roast beef.
• A surveyor observed a large square pan of tuna fish covered with plastic wrap on the shelf beneath the roast beef.  The FSD explained that the roast beef was pre-cooked but acknowledged it should not have been stored on the top shelf.
• Yogurt in a refrigerator was recorded to be 50.7 degrees Fahrenheit.  The FSD discarded the yogurt.
• An open and undated package of hot dogs was stored in a pan on the bottom shelf of a walk-in freezer. 
• Scoops for the flour and sugar containers were found inside the respective containers.
• The scoop for the ice machine was found inside the ice machine.

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CMS Ex. 1 at 27-31; see CMS Ex. 21 at 17-20.

Petitioner has a “Food Storage: Cold Foods” policy that requires that “[a]ll perishable foods will be maintained at a temperature of 41 [degrees Fahrenheit] or below, except during necessary period of preparation and service.”  CMS Ex. 22 at 1.  The policy also requires that “[a]ll foods will be stored wrapped or in covered containers, labeled and dated, and arranged in a manner to prevent cross contamination.”  CMS Ex. 22 at 1.  Further, Petitioner’s policy states, with respect to labeling food with dates, “It is important to know when food has arrived in the building, been opened, and when it expires.”  CMS Ex. 22 at 2.  Petitioner’s policy also directs the order in which food should be refrigerated, and includes a diagram of a five-shelf refrigerator showing that ready-to-eat foods should be stored on the top shelf above whole and ground poultry (on the bottom shelf).  CMS Ex. 22 at 3.

Petitioner does not dispute that the conditions cited above support a deficiency under 42 C.F.R. § 483.60(i)(1),(2).  Rather, Petitioner argues that it corrected the deficient practices during the survey.  P. Br. at 14-15 (“The practices identified were immediately corrected in front of the surveyor.”).  In fact, Petitioner presents the following argument, in totality:

Contrary to CMS’ assertion that no dispute of material fact exists with respect to Morris View’s noncompliance with tag F812 at scope and severity “F,” the record instead demonstrates factual issues with the basis of deficiency findings.  The practices identified were immediately corrected in front of the surveyor.  [See] P-Ex-7, para. 100.  There were no findings of any infectious diseases or food borne illnesses by the survey team.  [See] P-Ex-7, para. 100.

P. Opposition at 23.  Petitioner has not offered any legal basis to support how a facility’s correction of a deficiency that has been identified by a surveyor serves to demonstrate substantial compliance with a participation requirement.  Further, Petitioner has not explained how a finding of either infectious disease or foodborne illness is required to cite a deficiency under section 483.60(i)(1),(2); in fact, the plain language of that regulation indicates that such a finding is unnecessary to support a finding of substantial noncompliance.  The surveyors determined that Petitioner had multiple failures with respect to food storage and safety, and Petitioner has not identified any basis to disturb the finding of a deficiency under 42 C.F.R. § 483.60(i)(1),(2).  Petitioner’s noncompliance posed more than a minimal risk to resident health and safety, and therefore, it was not in substantial compliance with 42 C.F.R. § 483.60(i)(1),(2).  See CMS Ex. 22 at 1 (policy addressing risk of cross-contamination); 2 (policy for “Dating Food,” stating, “Because we are dealing with two of the four high risk groups, the sick and the elderly, we must make sure that food is used within a reasonable amount of time.”).

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36. A PICMP of $20,405 is a reasonable enforcement remedy for a serious, repeated, ongoing, and widespread deficiency involving multiple staff members.

37. Petitioner does not offer any basis to challenge the reasonableness of the $5,000 PICMP, and it is a reasonable enforcement remedy for a deficiency involving multiple failures to adhere to the facility’s food storage policy.

If a facility is not in substantial compliance with program requirements, CMS has the authority to impose one or more of the enforcement remedies listed in 42 C.F.R. § 488.406, including a PICMP.  In determining whether the per-instance CMP amount imposed against Petitioner is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f).  42 C.F.R. § 488.438(e)(3).  These factors include:  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) the factors specified at 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.  42 C.F.R. § 488.438(f).  The absence of culpability is not a mitigating factor.  Id.  The factors at 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.

I next consider whether the evidence supports a finding that the amount of a CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002).  Unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002).  Petitioner has not argued that any particular regulatory factor does not support the CMPs imposed.

At the time of the survey, the baseline PICMP range was from $1,000 to $10,000 prior to the annual adjustment for inflation.  42 C.F.R. § 488.438(a)(2).  With inflation adjustment, the PICMP range at the time of the survey was $2,097 to $20,965.  42 C.F.R. § 488.438(a)(2); 45 C.F.R. § 102.3; 82 Fed. Reg. 9174, 9182 (Feb. 3, 2017) (setting 2017 inflation adjustments).  CMS imposed inflation-adjusted PICMPs of $20,405 (for the noncompliance with 42 C.F.R. § 483.25) and $5,000 (for the noncompliance with 42 C.F.R. § 483.60(i)(1),(2)).

With respect to the $20,405 CMP imposed for Petitioner’s noncompliance with 42 C.F.R. § 483.25, Petitioner argues that it “was in substantial compliance with Medicare requirements” and “CMS has no basis to impose a civil monetary penalty.”  P. Br. at 25.

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Petitioner once again argues “there was no immediate jeopardy.”  P. Br. at 25.  However, Petitioner has not cited any regulatory factor as a basis for its claim that the CMP is “clearly erroneous,” and it has not claimed it lacks the resources to pay a $20,405 CMP.

Petitioner was out of substantial compliance with 42 C.F.R. § 483.25, in that its noncompliance exposed residents to a risk of aspiration, which undoubtedly had the potential for more than minimal harm.  Although the state agency cited the specific instances of noncompliance its surveyors observed during the survey, the state agency made clear that this widespread practice of allowing unqualified recreation/activities aides to feed residents dated back to long before the survey.  CMS Ex. 1 at 17 (“According to the facility’s CASPER Report . . . staffing summary report from 10/1/17 through 12/31/2017 and last updated on 2/15/18, revealed feeding assistant staffing hours were 1,415.00.”); see CMS Ex. 20 at 1 (CASPER report, last updated February 15, 2018).  Regardless of whether the deficiency caused immediate jeopardy to resident health and safety, which I may not address, the crux of the deficiency is that Petitioner used less qualified recreation/activities employees to provide services that would ordinarily have been provided by certified nurse aides or licensed nursing staff.  As CMS contemplated when it established a regulatory authority allowing for feeding assistants to feed residents without complicated feeding problems, the use of feeding assistants, rather than CNAs, likely results in a significant cost savings for a facility.  68 Fed. Reg. 55,532 (“However, because feeding assistants will likely be paid at a minimum wage, which is less than the wage paid to certified nurse aides, facilities participating in Medicare and Medicaid may incur less cost than if they had hired additional certified nurse aides to perform feeding and hydration duties.”)  A $20,405 PICMP, in the context of the repeated and widespread nature of the deficiency, along with Petitioner’s disregard of its own policy and procedure, the hospitality aide job description, and resident care plans, is entirely reasonable.

CMS also imposed a $5,000 PICMP for Petitioner’s substantial noncompliance with 42 C.F.R. § 483.60(i)(1),(2).  Petitioner does not argue any regulatory basis why the $5,000 CMP is unreasonable.  The surveyors noted numerous deficient practices involving cold storage and sanitation, to include improper storage of three different scoops, cold food stored at too high of a temperature, multiple opened packages of food that were improperly labeled, and improper storage that posed a risk for cross-contamination.  Petitioner’s deficient practices were not merely an isolated occurrence caused by a one-time mistake, but rather, indicate repeated disregard for its own food safety policy.  Petitioner’s policy acknowledges the risks of poor food safety practices to its vulnerable residents, and a $5,000 PICMP for numerous deficient practices is a reasonable enforcement remedy.  See CMS Ex. 22 at 2.

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IV.   Conclusion

For the foregoing reasons, I conclude that Petitioner was not in substantial compliance with Medicare participation requirements at 42 C.F.R. §§ 483.25 and 483.60(i)(1),(2).  Separate $20,405 and $5,000 CMPs are reasonable enforcement remedies.