Oakwood Manor Nursing Home, DAB CR6009 (2021)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) and against Petitioner, Oakwood Manor Nursing Home, a skilled nursing facility, sustaining CMS’s determination to impose remedies consisting of civil money penalties. 

I. Background

As support for its motion CMS filed a brief (CMS’s brief) and 14 exhibits that it identified as CMS Ex. 1-CMS Ex. 14.  Petitioner filed a brief in opposition (Petitioner’s brief) and a single exhibit that it identified as P. Ex. 1.

It is not necessary that I receive into evidence exhibits in support of a motion for summary judgment.  I ground my decision on undisputed material facts and do not receive the parties’ exhibits into evidence for that reason.  I cite to some of them but only to illustrate facts that are undisputed.  I note, however, that neither party objected to any of the exhibits.

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I am mindful that in deciding a motion for summary judgment I must rest my decision entirely on facts that are undisputed.  I must also draw all inferences from the facts that are favorable to the non-moving party.

I am also mindful of this:  summary judgment should be granted in a case if conducting an in-person evidentiary hearing would be pointless.  An evidentiary hearing would be pointless here.  As I shall discuss, my decision rests on documents consisting of Petitioner’s records.  Although CMS offered the written direct testimony of two witnesses, that testimony adds nothing significant to the case and I do not rely on it.  Petitioner did not offer the testimony of any witness.

II. Issues, Findings of Fact and Conclusions of Law

A.  Issues

The issues are whether Petitioner failed to comply substantially with Medicare participation requirements, whether its noncompliance placed one of its residents in a state of immediate jeopardy, and whether CMS’s remedy determinations are reasonable.

B.  Findings of Fact and Conclusions of Law

CMS alleges that Petitioner failed to comply with four Medicare participation requirements that are established by regulation.  These requirements are stated at 42 C.F.R. §§ 483.10, 483.21(b)(2)(i)-(iii), 483.21(c)(1)(i)-(ix), and 483.21(b)(1).  CMS alleges that one of these episodes of noncompliance – Petitioner’s alleged noncompliance with the requirements of 42 C.F.R. § 483.21(c)(1)(i)-(ix) – was so egregious that it put one of Petitioner’s residents in a state of immediate jeopardy.

1.  Noncompliance With Discharge Planning Requirements

Regulations establish explicit requirements that a skilled nursing facility must comply with when it discharges one of its residents.  42 C.F.R. § 483.21(c)(1). A facility must, among other things:

• Ensure that the discharge needs of each resident are identified and develop a discharge plan for that resident based on the identified needs.  42 C.F.R. § 483.21(c)(1)(i).
• Regularly re-evaluate its residents to identify changes that require modification of the discharge plan.  The discharge plan must be updated to reflect changed needs.  42 C.F.R. § 483.21(c)(1)(ii).

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• Consider the availability of a caregiver or a support person and the capacity of such individuals to provide care, as part of the identification of a resident’s discharge needs.  42 C.F.R. § 483.21(c)(1)(iv).
• Involve a resident and the resident’s representative in the development of a discharge plan and inform the resident and his or her representative of the final plan.  42 C.F.R. § 483.21(c)(1)(v).
• Document timely the evaluation of a resident’s needs and the discharge plan and include the plan in the resident’s clinical record.  The results of the evaluation must be discussed with the resident or his or her representative.  All relevant resident information must be incorporated into the discharge plan to facilitate the plan’s implementation and to avoid unnecessary delays in the resident’s discharge or transfer.  42 C.F.R. § 483.21(c)(1)(ix).

These requirements are not mere formalities.  Discharge planning and implementation of a discharge plan are vital to ensure a resident’s well-being and safety after he or she leaves a facility.  Residents of skilled nursing facilities are among the sickest and most fragile members of our society.  Many of these residents have not returned to anything close to robust good health when they are discharged from a facility.  For that reason, it is critically important that a facility and its staff do their utmost to ensure the continued safety and well-being of residents after they leave.  A facility must closely evaluate each resident before discharging him or her, it must determine exactly what the resident might need for continued care and protection, and it must take steps to ensure that the resident receives that care.  Discharging a resident without determining what that resident might need for continued protection would be to place that resident in an insecure and very dangerous position.

Petitioner understood its regulatory duties.  Its social services policy governing discharge of its residents mirrors the regulation’s requirements, restating some of them virtually verbatim.  CMS Ex. 9 at 10.

CMS’s allegations of noncompliance center on the care that Petitioner and its staff gave to a resident identified as Resident 1.  The resident was a 67-year-old woman who was admitted to Petitioner’s facility on June 24, 2020, suffering from, among other things, a fractured femur, depression, and anxiety.  CMS Ex. 6 at 112.  The resident developed a urinary tract infection on July 9, 2020, during her stay at Petitioner’s facility.  Id. at 135.  She also fell ill with Covid-19 on July 13, 2020, very shortly before her discharge from the facility on July 15.  Id. at 114, 134. 

Quite obviously, and as Petitioner’s staff concluded, Resident 1 was a severely debilitated individual who needed major assistance to perform her activities of daily living.  As of July 1, 2020, Petitioner’s staff found that the resident was totally dependent on staff for

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bathing, and she needed assistance of two individuals for bed mobility and for transfers from, for example, her bed to a wheelchair.  CMS Ex. 2 at 54.  The resident required assistance for performance of personal hygiene.  Id.  The resident wore a Foley catheter.  Id. at 58.  I take notice that a Foley catheter is an invasive device used to facilitate the passage of urine.  It is not something that one may self-maintain.

The resident’s debilitated state persisted during her stay.  On July 10, 2020, the staff completed an occupational therapy discharge summary.  The report stated that the resident would shortly be discharged to live with family and friends.  CMS Ex. 6 at 9.  Although the report found that the resident’s functional capacity had improved since her admission, its recommendations clearly acknowledged that the resident continued to experience significant limitations.  It found that that the resident required 24-hour care, a low bed, and a bench to be used while showering.  Id. at 23.  Petitioner was to arrange for assistance to the resident after her discharge via a care assistant during mornings and evenings.  Id. at 9.

Resident 1’s physician also recognized that the resident needed intensive personal care after her discharge.  The physician ordered that the resident be discharged with home health services, physical therapy, occupational therapy, continued skilled nursing care while at home, and a social work consultation.  CMS Ex. 6 at 116.

Petitioner’s staff created a document entitled “Patient Discharge Plan of Care” for Resident 1.  CMS Ex. 6 at 140-141.  The discharge plan of care violates wholesale the requirements of 42 C.F.R. § 483.21(c)(1) and Petitioner’s policy for discharge planning.

The discharge plan of care states that the resident would be discharged “home alone” on July 14, 2020.  Nearly all the plan’s various sections are blank.  There is no recitation in the plan of the resident’s problems and there is no analysis of the care that the resident would need to address those problems.  Other than a laconic reference to “home health” the discharge plan of care does not contain any explanation of the type of care that Resident 1 would require after discharge.  There is no evaluation in the plan of the resident’s urinary tract infection nor does the plan refer to the resident’s Covid-19 infection.  There is no assessment whether home health services could provide Resident 1 with the 24-hour care that the occupational discharge summary concluded that the resident needed.  See CMS Ex. 6 at 9.  Nor does the discharge plan of care explain how the resident would receive a low bed or a bench for showering.  See id.

The discharge plan of care contains a signature line for the resident and the resident’s representative.  CMS Ex. 6 at 140-141.  It is unsigned.  The obvious and only inference that I draw from these missing signatures is that the discharge plan was not reviewed with either the resident or her representative.  Moreover, the plan contains a signature line for the facility’s representative.  It is unsigned as well, supporting my conclusion that the plan was not thoroughly reviewed by Petitioner’s staff.

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The discharge plan of care not only fails to address the resident’s needs but, in stating that the resident would be sent “home alone,” it contradicts the findings of the occupational discharge summary, which stated that the resident would be discharged to live with family and friends.  See CMS Ex. 6 at 9.

The glaring failure of Petitioner’s staff to address the resident’s needs and explain how they would be met in a discharge plan of care stands in sharp contrast with the fact that the individuals who assessed this resident previously all stated that she needed intensive support once she left the facility.  That was evident in the staff’s July 1, 2020 assessment of the resident.  CMS Ex. 2 at 54, 58.  It was evident also in the occupational therapy discharge summary.  CMS Ex. 6 at 9, 23.  It was additionally evident in the resident’s physician’s order.  Id. at 116.  Nothing in the discharge plan of care reflects these assessments.

I find to be without merit Petitioner’s protestations that it complied with regulatory requirements.

Petitioner acknowledges that its staff failed to comply with the letter of the requirements but attempts to minimize that failure:

While . . . [Petitioner’s] care staff may not have dotted every i and crossed every t with respect to its discharge planning procedures and Resident 1, it is clear . . . that . . . [Petitioner] took reasonable steps to carry out the intent and spirit of both the requirements of . . . [the regulation] and . . . [Petitioner’s] discharge planning protocols. 

Petitioner’s brief at 13.  Petitioner goes on to argue that the discharge planning process is not necessarily a process that applies in the same way to each resident.  According to Petitioner, discharge planning “requires a practical and common-sense approach designed to meet the needs and desires of a resident.”  Id.

I don’t disagree with Petitioner’s statement of its obligations.  That said, there are no facts to show that Petitioner’s staff utilized a “practical and common-sense approach” to meet the needs and desires of Resident 1.  Petitioner’s assertions notwithstanding, this is not a case of mere failure by staff to dot i’s and cross t’s but rather, one of wholesale abdication of responsibility.  As I have discussed, the discharge care plan that Petitioner prepared for this resident is essentially devoid of content.  It does not identify, much less address, the resident’s needs and concerns. 

Petitioner asserts that there are genuine issues of fact concerning the discharge planning for Resident 1 that cannot be resolved without an in-person hearing.  Petitioner’s brief at 13.  However, it hasn’t identified any disputed material facts.  Rather, it offers a collection of facts that say nothing about its failure to perform discharge planning for

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Resident 1.  Accepting Petitioner’s asserted facts as true, they do not derogate an iota from the undisputed facts of Petitioner’s noncompliance. 

Some of the facts asserted by Petitioner – for example, its lengthy recitation of the policies that Petitioner asked its staff to follow when discharging residents – actually highlight its staff’s failure to do comprehensive discharge planning for Resident 1.

Petitioner’s recitation of facts begins with its assertion that Resident 1 had the freedom to choose to be discharged.  Petitioner’s brief at 8.  Petitioner asserts that it could not hold the resident against her will.

This assertion is a red herring.  CMS does not allege that Petitioner should have kept Resident 1 on its premises against her will.  There is no dispute that the resident expressed a desire to leave.  What is at issue is Petitioner’s staff’s blatant failure to plan for the resident’s discharge. 

Petitioner asserts that the discharge planning process for Resident 1 began on the first day of her stay at Petitioner’s facility and encompassed all aspects of her care needs.  Petitioner’s brief at 8.  However, Petitioner offers no facts to establish that it conducted a discharge planning process.  Petitioner’s naked and unsupported conclusion stands in sharp contrast to the facts offered by CMS that show that Petitioner’s staff failed to perform discharge planning.

Petitioner discusses the occupational therapy evaluation that the staff performed for Resident 1 prior to her discharge.  Petitioner’s brief at 8-9.  Petitioner evidently intends its recitation of that therapy to serve as evidence that its staff planned for the resident’s discharge.  That recitation proves precisely the opposite.  I do not doubt that Petitioner’s staff assessed the resident’s functional capacity and profound limitations, and made recommendations for the resident’s care, as Petitioner’s brief recites.  But the assessment and recommendations led to no discharge plan designed to assure that the resident could live outside of the facility given her obvious functional limitations.  The fact that some staff made recommendations about the care that the resident needed falls far short of actual discharge planning.  The staffing did nothing to ensure that the recommendations would be implemented.

The occupational therapy evaluation lists short-term goals that include improving bed mobility and transfers.  CMS Ex. 6 at 8-9.  The evaluation recites that Resident 1’s functional capacity in these areas had improved as of July 10, 2020, a few days prior to her discharge.  But the evaluation makes it plain that the resident was not independent.  Far from it, it concludes that the resident continued to require assistance, both for bed mobility and for transfers.  Id.

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As I have discussed, the discharge care of plan for Resident 1 doesn’t address these continued issues.  Indeed, it doesn’t even mention them.  The failure of that plan to evaluate the resident’s mobility limitations and to explain how they would be addressed after discharge is a glaring deficiency.  Nothing that Petitioner offers mitigates its staff’s failure.

Resident 1’s discharge plan of care is silent about the resident’s infection with Covid-19.  Petitioner argues that, in fact, its staff educated the resident about how to self-monitor for signs and symptoms of the virus.  Petitioner’s brief at 9-10; see CMS Ex. 6 at 136.  It contends also that it informed the resident’s physician’s office that the resident had tested positive for Covid-19.  Petitioner’s brief at 10; see CMS Ex. 6 at 135-136.

These measures were appropriate.  However, they do not gainsay the fact that the discharge plan of care was completely silent about the resident’s Covid-19 infection.  Petitioner’s duties went beyond the steps that it took.  Petitioner was obligated to plan comprehensively for the care that the resident would receive after she was discharged and that included her infection with Covid-19.  The discharge plan of care should have contained an evaluation of the seriousness of the resident’s infection and an explanation of how that infection would be cared for after the resident’s discharge.  How, for example, would Petitioner assure that caregivers monitor the resident for signs of breathing difficulties or other virus-related issues?  The discharge plan of care says nothing about this. 

Moreover, although Petitioner’s staff did advise the resident’s physician about the resident’s infection, it failed to communicate that fact to the home health agency that would ostensibly care for the resident after her discharge.  Clearly, communicating that status was of vital importance because that information would affect how the home health agency provided care for the resident.

Petitioner contends that it received a telephone order from the resident’s physician on July 14, 2020, discharging the resident to her home where she would receive a variety of services, including physical therapy, occupational therapy, skilled nursing care and a social work consultation.  Petitioner’s brief at 10; see CMS Ex. 6 at 137.  Accepting that assertion as true, it does nothing to respond to Petitioner’s failure to create a valid discharge plan of care for Resident 1.  Petitioner recorded none of this information in the resident’s discharge plan of care. 

The failure by Petitioner’s staff to document comprehensively the services that ought to have been provided to Resident 1 after her discharge isn’t some mere technical fault on Petitioner’s part.  Recording what was to be done for Petitioner was important, first, because putting that information in a single document would have illuminated any gaps in evaluations of the resident’s condition or in the providing of necessary care, and alerted Petitioner’s staff of the need for additional planning and arrangements.

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Furthermore, Petitioner had a duty not just to document post-discharge services, but also to undertake measures to ensure that they would be delivered.  At the very least, Petitioner’s staff should have communicated with the home health agency to coordinate the discharge with the commencement of that agency’s services.  It failed to do that.

Also, Petitioner had a duty to discuss every aspect of the discharge plan of care with Resident 1 and her concerned family members to assure that they understood what would be provided for Resident 1, and to assure that the resident assented to the discharge plan of care.  Petitioner did not do that. As I discuss above, I infer from the absence of the resident’s or her representative’s signatures on the discharge plan of care that Petitioner’s staff did not discuss the plan with them.  I buttress my conclusion with the failure of Petitioner to offer any affirmative facts showing that its staff met with Resident 1 or her representative to discuss the discharge plan of care.

The undisputed facts lead me to infer that Resident 1’s family might have objected to aspects of the resident’s discharge care plan given that she had tested positive for Covid-19.  Petitioner’s then-director of nursing recorded that he spoke with Resident 1’s family shortly before her discharge from the facility.  The family members expressed concern that Petitioner was discharging the resident with a positive diagnosis.  CMS Ex. 6 at 137.

Petitioner asserts that Resident 1 had the right to overrule any objections to her discharge that her family voiced, and that is certainly true.  However, that doesn’t excuse Petitioner from discussing with the resident and her family the evaluations and proposed care stated in a discharge care plan, and perhaps, proposing and making modifications based on the resident’s and her family’s input, including any objections that they might have voiced.

There was a failure to deliver home health services to Resident 1 after the resident’s discharge, with terrible consequences.  CMS Ex. 6 at 137.  I discuss these consequences below.  Petitioner argues that it cannot be held responsible for that failure.  Petitioner’s brief at 12. 

Petitioner is correct in asserting that it is not responsible for a failure by a home health agency to provide services that it has agreed to provide.  But that doesn’t excuse Petitioner from a failure to coordinate with the home health agency prior to the resident’s discharge in order to ensure that appropriate services would be provided.

The undisputed facts show that there was at least a misunderstanding between Resident 1’s physician and a home health agency.  I accept as true Petitioner’s assertion that the physician ordered home health services for Resident 1 by phone but failed to provide a signed order for those services.  Id.; see CMS Ex. 6 at 116.  Evidently, the home health agency refused to provide services without a signed physician’s order.

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Petitioner’s deficiency lay in the fact that its staff did nothing to assure that the services would be provided.  Its staff simply relied on its understanding that the resident’s physician had ordered the services.  There is, in fact, nothing to show that Petitioner’s staff ever spoke with a representative of the home health agency prior to Resident 1’s discharge.  In the discharge plan of care the staff noted that home health services would be provided without describing the services, evaluating their appropriateness, or attempting to assure that the home health agency understood Resident 1’s needs and condition. 

Indeed, there is nothing to show that Petitioner assessed what services would be provided to the resident by the home health agency after her discharge.  Making that assessment was a critical element of planning the resident’s post discharge care.  It is reasonable to conclude that had Petitioner’s staff communicated with the home health agency, the confusion surrounding delivery of home health services to the resident and the failure to deliver those services could have been prevented.

Petitioner argues that there are credibility questions affecting the probative value of the testimony offered by CMS’s witnesses.  Petitioner’s brief at 12.  I do not rely on these witnesses’ testimony and thus, there is no need for me to schedule a hearing to test their credibility.  As I have explained, I rest my fact findings entirely on Petitioner’s records.

2.  Immediate Jeopardy

Regulations define immediate jeopardy as being noncompliance that is so egregious as to cause or be likely to cause serious injury, impairment, harm, or death to a resident or residents of a skilled nursing facility.  42 C.F.R. § 488.301.  The existence of serious injury, actual harm, impairment, or death is not a prerequisite to finding immediate jeopardy level noncompliance; the regulation makes it plain that immediate jeopardy exists where the described adverse consequences are likely to occur.  Life Care Ctr. of Tullahoma, DAB No. 2304 at 58 (2010), aff’d, Life Care Ctr. of Tullahoma v. Sibelius, 453 F. App’x 610 (6th Cir. 2011). 

The burden is on the facility to prove that the determination is clearly erroneous in an evidentiary hearing challenging a determination of immediate jeopardy level noncompliance.  42 C.F.R. § 498.60(c); Brian Center Health and Rehabilitation/Goldsboro, DAB No. 2336 at 9 (2010).  The facility’s burden is somewhat different in opposing a motion for summary judgment.  In that circumstance a facility must offer facts from which I could infer that a finding of immediate jeopardy is clearly erroneous.

CMS determined that Petitioner manifested immediate jeopardy level noncompliance with the requirements of 42 C.F.R. § 483.21(c).  I find that the undisputed facts amply

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support CMS’s determination.  Petitioner did not offer facts from which I could infer that the determination is clearly erroneous.

In the previous subsection I have described Petitioner’s utter failure to perform discharge planning for Resident 1.  That failure created, at the very least, a likelihood that Resident 1 would be seriously harmed after her discharge.

What happened to the resident must be considered against the backdrop of the resident’s condition.  As I have discussed, this resident was both sick and severely limited when Petitioner discharged her.  She suffered from a urinary tract infection and Covid-19.  She had a broken femur and was ambulatory only with assistance.  She needed help transferring from her bed to a chair.  She needed help for basic hygiene and for dressing.

Petitioner attempted to discharge Resident 1 on July 14, 2020.  An ambulance came on the afternoon of July 14 to transport the resident from Petitioner’s facility to her home.  However, the resident was lethargic on that afternoon and the ambulance personnel refused to transport her.  CMS Ex. 6 at 136.  There is nothing in the record to show that Petitioner’s staff assessed the resident’s lethargy, determined its cause, or re-evaluated the resident’s suitability for discharge.  A member of Petitioner’s staff attempted to call Resident 1’s physician, leaving a voicemail requesting that the physician call the facility.  The physician did not return the call and Petitioner’s staff did not follow up.

On the afternoon of July 15, 2020, Petitioner discharged Resident 1 to her home via an ambulance.  CMS Ex. 6 at 137.  Earlier that day the resident had informed a member of Petitioner’s staff that she wanted to go home.  However, the resident expressed concern that she would be unable to prepare meals for herself.  CMS Ex. 6 at 136.  Nothing in the record suggests that Petitioner’s staff made inquiries on July 15 to ascertain whether the resident would be able to obtain meals while at home.  Furthermore, the staff did not contact the home health service to determine whether that service would assist Resident 1 as ordered by the resident’s physician, or to discuss the manner in which the home health agency might assist the resident.

In fact, no home health service was provided to Resident 1 on July 15 or thereafter. 

On July 17, 2020, the local fire department visited Resident 1’s home to conduct a wellness check.  The fire department personnel found the resident covered in feces.  CMS Ex. 6 at 32.  They transported Resident 1 to a hospital emergency room.  There, the resident was diagnosed to be dehydrated and suffering from Covid-19, diarrhea, and altered mental status with acute delirium.  CMS Ex. 6 at 29, 40.  The hospital staff concluded that the resident was unable to perform the activities of daily living or to take care of herself.  Id. at 34.

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It is unnecessary that I find that the harm that Resident 1 experienced after her discharge—her delirium, her incontinence, her dehydration—was the direct consequence of Petitioner’s failure to prepare a meaningful discharge plan of care.  The failure to plan the resident’s care certainly created a likelihood that she would experience harm.  The resident, sick and vulnerable, was set adrift because Petitioner’s staff failed to take the most basic measures necessary to coordinate her post-discharge care. 

As I have discussed, the staff should have assessed the obvious limitations that the resident manifested as well as her persisting illness and determined whether she was ready to be discharged.  They did not.  The staff should have communicated with the home health service in order to determine whether services were planned and would be provided for the resident after her discharge.  They did not.  And the staff should have discussed all elements of the discharge with the resident and her family members to assure that everyone was on the same page.  They did not do that, either.

Petitioner argues that there are sufficient facts from which I could infer that the immediate jeopardy determination is clearly erroneous.  I disagree.

Petitioner asserts, first, that:  “there are fact questions as to whether . . . [the adverse consequences sustained by Resident 1] were caused by . . . [Petitioner’s] implementation of it[s] discharge planning protocols or other actions engaged in by . . . [Petitioner’s] care staff.”  Petitioner’s brief at 18.

Causation is not the sole test for an immediate jeopardy finding, as I have explained.  In this case Petitioner’s abdication of its responsibility to plan Resident 1’s discharge very likely contributed to the dire straits which befell the resident on July 17, 2020.  However, even if that is not so, the utter failure by Petitioner’s staff to plan for the resident’s discharge certainly made it likely that the resident would sustain serious harm or worse.  Petitioner’s staff cast a debilitated and sick individual adrift without doing even the basic planning necessary to assure that she would be protected when outside of the facility.

Petitioner argues that any harm or injury sustained by Resident 1 was the consequence of the home health agency’s failure to provide services to the resident and not Petitioner’s responsibility.  I do not hold Petitioner responsible for any failure by a home health agency to provide care that it had agreed to provide.  But what happened here was not a failure by the home health agency to deliver promised care.  Rather, it was an abject failure by Petitioner’s staff to coordinate discharge with the home health agency.

Resident 1 did not receive care at home because the home health agency hadn’t agreed to provide it.  That was due to a misunderstanding between the resident’s physician and the home health agency.  The physician had ordered care by phone but had not memorialized it in writing and the home health agency wouldn’t begin providing service without a written order.

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Had Petitioner’s staff called the agency on July 14 or 15, 2020, the misunderstanding between the physician and the home health agency would have been evident and Petitioner could have intervened, as part of the discharge planning process, to either assure that the resident received required care or to delay discharge until the home health agency agreed to provide care.  That failure to communicate clearly put Resident 1 in harm’s way. 

Next, Petitioner contends that there was no need for immediate action to correct whatever deficiency that it manifested.  It asserts essentially that, whatever incompetence its staff displayed in planning Resident 1’s discharge, there is no evidence that any other resident was or would be affected by that incompetence.  Petitioner’s brief at 19.  In other words, according to Petitioner, its failure to plan Resident 1’s discharge must be considered as a “one off” episode from which I may not draw broader inferences.

However, this assertion fails to acknowledge that Petitioner’s staff displayed utter incompetence when it discharged Resident 1.  The staff failed categorically to provide mandated care for the resident.  There are no shades of gray to be addressed here.  The only reasonable inference that I can draw from such incompetence is that there were individuals on Petitioner’s staff who either were ignorant of their responsibilities or who disregarded them.  That level of incompetence certainly portends ominous consequences for other residents of Petitioner’s facility and correcting that called for immediate action.

Petitioner relies heavily on the facility’s policies to argue that the staff was generally competent.  But the undisputed facts are that those policies were meaningless to staff in the case of Resident 1.  It was incumbent on Petitioner to offer proof that the staff implemented Petitioner’s policies in discharging other residents if it intended to show that the staff’s incompetence was somehow isolated and confined solely to the care that the staff gave to Resident 1.  It offered nothing of the kind.

Finally, Petitioner contends that there was no need for immediate corrective action because of the allegedly strong discharge planning efforts performed by its staff on behalf of Resident 1.  Petitioner’s brief at 20.  However, Petitioner concedes that:  “[It] recognizes that its staff may not have carried out . . . [Petitioner’s] discharge protocols with perfect precision and recognizes the value o[f]additional training and in-servicing to strengthen the efficacy of such protocols for the benefit of its residents.”  Petitioner’s brief at 20.

There is nothing in the record to suggest that Petitioner’s staff implemented strong discharge planning efforts on Resident 1’s behalf.  To the contrary, the facts all point only to one conclusion and that is that the staff utterly abdicated their responsibility.  That made critical the need for additional training and in-servicing of the staff.  That, at a minimum, was necessary to protect Petitioner’s other residents from the incompetence manifested in the care provided for Resident 1.  Those other residents faced a likelihood

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of serious harm or worse until and unless that training and other corrective actions occurred.

3.  Additional Noncompliance

a.  Failure to Complete a Comprehensive Plan of Care

A skilled nursing facility such as Petitioner must develop and implement a comprehensive person-centered care plan for each of its residents.  42 C.F.R. § 483.21(b)(1).  As with the case of a discharge plan of care the development of a comprehensive plan of care is not a mere technical exercise that a facility may freely ignore.  The comprehensive plan of care serves as a blueprint for all care that a facility gives to its resident.  It is intended to serve as a road map and a guide to ensure that the resident receives the care that he or she needs and is entitled to.

The facility must complete the comprehensive care plan within seven days of completion of an assessment of the resident’s condition.  42 C.F.R. § 453.21(b)(2).  Petitioner’s own policy mirrors this requirement and states also that staff must complete a comprehensive care plan for each of its residents within 21 days of admission to the facility.  CMS Ex. 9 at 9.

The undisputed facts are that, while Petitioner prepared a baseline plan of care for Resident 1 shortly after her admission to the facility, it did not complete a comprehensive plan of care for Resident 1 until July 23, 2020, nearly 30 days after the resident’s June 24, 2020 admission and eight days after the resident had been discharged.  CMS Ex. 6 at 24; Petitioner’s brief at 13-14.  That is a violation of regulatory requirements and Petitioner’s own policy.

Petitioner argues that:  “it cannot be materially disputed that . . . [it] met the requirement to complete the comprehensive care plan . . . .”  Petitioner’s brief at 14.  However, it has not offered any facts to refute the undisputed facts showing that it did not complete a comprehensive care plan timely for Resident 1.

b.  Failure to Consult with Resident 1’s Physician About a Significant Change in the Resident’s Medical Condition

A skilled nursing facility’s staff must immediately inform and consult with a resident’s physician when there is a significant change in a resident’s physical, mental, or psychological status.  42 C.F.R. § 483.10(g)(14).  Merely sending information to a physician does not suffice to comply with this requirement.  The requirement for consultation means that the staff must consult with the physician to determine whether the resident’s treatment regime is adequate or needs to be altered.

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As I have discussed, on July 14, 2020, Petitioner attempted to discharge Resident 1, but was unable to do so because the resident was lethargic, and the ambulance service refused to transport her.  CMS Ex. 6 at 136.  Petitioner’s staff left a phone message at the resident’s physician’s office.  The physician did not return the call and staff made no attempt to follow up.  Rather, Petitioner discharged the resident the next day, July 15, 2020, without ever having consulted with the resident’s physician.

The failure to consult is a clear violation of regulatory requirements.  The development of lethargy by Resident 1 was a new and potentially troubling sign, especially considering her urinary tract infection and her very recent diagnosis of Covid-19.  Petitioner’s staff should never have attempted to discharge the resident without first consulting the physician.  It is no excuse that the physician failed to return the staff’s call.  The staff should have made follow up efforts.

Petitioner claims that the facts belie CMS’s assertion of a failure to consult.  It relies on the failed attempt to communicate with the physician on July 14, 2020.  Petitioner’s brief at 15.  It also asserts that the resident was alert on the following day, the morning of July 15, 2020, therefore obviating the need for additional attempts to consult.  Id.

However, without consultation the staff did not know what significance to attach to the episode of lethargy on July 14.  A facility’s nursing staff may not substitute their judgment for that of a physician.  Petitioner’s staff had an obligation to consult about what they had observed on July 14 and that obligation was not relieved by apparent subsequent improvement in the resident’s condition, because the staff was not qualified to assess whether that improvement was meaningful.

4.  Remedies

CMS determined to impose remedies against Petitioner consisting of these civil money penalties:

• $12,600 for each day of a period that began on July 14, 2020, and that continued through July 23, 2020; and
• $1,300 for each day of a period that began on July 24, 2020, and that continued through August 16, 2020.

CMS based the larger penalty amount on its finding of immediate jeopardy level noncompliance and its determination that Petitioner did not abate immediate jeopardy until after July 23, 2020.  It based the smaller penalty amount on its determination that Petitioner did not fully comply with participation requirements, including the requirements of 42 C.F.R. § 483.21(c), until after August 16, 2020.

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Regulations define the range of permissible penalties.  42 C.F.R. § 488.438(a)(i), (ii); 45 C.F.R. § 102.3.  The penalties that CMS determined to impose fall well within the established ranges, with the immediate jeopardy level civil money penalties falling slightly above the midpoint for penalties in the immediate jeopardy range and with the non-immediate jeopardy level penalties being less than one-quarter the maximum permissible non-immediate jeopardy level penalty amount.

There are regulatory factors to be used in deciding where a penalty amount should lie within a permitted range.  These factors include the seriousness of noncompliance and a facility’s culpability for its noncompliance.  42 C.F.R. §§ 488.438(f)(1)-(4), 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).

CMS asserts that the penalty amounts are justified by both the seriousness of Petitioner’s noncompliance and its culpability.  I find CMS’s assertions to be fully supported by the undisputed facts.

The penalty amounts are supported solely by the proof of Petitioner’s noncompliance with 42 C.F.R. § 483.21(c).  The seriousness of Petitioner’s compliance with this regulation and its culpability are more than enough to justify the penalty amounts and duration.  Petitioner’s noncompliance with other requirements, at a level that does not comprise immediate jeopardy, is additional but unnecessary grounds to sustain the civil money penalties that CMS determined to impose.

I have discussed at length the seriousness of Petitioner’s noncompliance.  To reiterate briefly:  Resident 1 was put in a state of jeopardy because she was cast loose by Petitioner without any meaningful staff planning for her discharge.  Petitioner discharged a sick, highly dependent resident without evaluating the resident’s true condition as of the date of discharge, without knowing the circumstances that she would face outside of the facility, without attempting to coordinate post-discharge care, and without discussing the discharge plan with the resident or her family.  The consequence was that Resident 1 was abandoned to forces that she had no power to control.

Petitioner’s noncompliance demonstrates a high level of culpability.  There was a complete abdication by Petitioner’s staff of its responsibility to develop and complete a discharge plan for Resident 1.  The plan in the resident’s file is devoid of any meaningful content.  Either Petitioner’s staff was grossly negligent or indifferent to their duties.  Either way, they betrayed the trust that Resident 1 had placed in them.

Petitioner asserts that there are facts from which I might infer that the penalty amounts are excessive.  It asserts first that it does not have a compliance history that would support the penalties.  Petitioner’s brief at 22.  I accept this representation as true for purposes of deciding whether to impose summary judgment.  However, I find that the seriousness of Petitioner’s noncompliance and its culpability are in and of themselves

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sufficient to support the penalty amounts.  Absence of a poor compliance history may justify not increasing the penalties, but it does not support reducing them.

Petitioner contends that there are no facts in this case that support a conclusion that Petitioner manifested a pattern of deficiencies.  Petitioner’s brief at 22.  That may be so, but it does not gainsay either the seriousness of the noncompliance or Petitioner’s culpability.

Next, Petitioner asserts that its noncompliance does not evidence a high level of culpability.  Petitioner’s brief at 22-23.  It asserts that there:  “is no evidence to suggest the alleged deficiencies in question were the result of indifference or disregard of resident care . . . .”  Id. at 23.  I strongly disagree with this assertion.  The failure by Petitioner’s staff to perform even minimal discharge planning for Resident 1 is powerful evidence of disregard for the welfare of this resident. 

Petitioner did not challenge CMS’s determination of the duration of noncompliance.  It did not argue, for example, that it completed remedial action at earlier dates than the completion dates determined by CMS.