Clifton Oaks Care Center, DAB CR6036 (2022)

DECISION

Based on a complaint investigation and survey completed on September 29, 2017, Respondent, the Centers for Medicare & Medicaid Services (CMS), determined Petitioner, Clifton Oaks Care Center, was not in substantial compliance with Medicare participation requirements.  As a result, CMS imposed a civil money penalty (CMP) against Petitioner of $6,394 per day from August 31, 2017 through September 10, 2017, for a total of $70,334.  As explained herein, I affirm CMS’s deficiency findings and sustain the imposed CMP.

I. Background

Petitioner is a skilled nursing facility (SNF) located in Louisville, Kentucky, certified by and participating in the Medicare and Medicaid programs.  As a result of a complaint investigation survey conducted by the Kentucky Office of Inspector General - Division of Health Care (OIG) from September 12, 2017, through September 29, 2017, CMS found Petitioner to be substantially noncompliant with Tags F157 (42 C.F.R. § 483.10(g)(14) - notify of changes, injury, decline, room change), F282 (42 C.F.R. § 483.21(b)(3)(ii) - services by qualified persons/per care plan) and F323 (42 C.F.R. § 483.25(d)(1)(2) – free

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of accident hazards/ supervision/devices)CMS revised part 483 regulations concerning SNF conditions of participation, including the regulations at issue in this survey, effective November 28, 2016. 81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (July 13, 2017) (technical corrections). CMS subsequently revised and reorganized the associated F-Tag descriptors in Appendix PP to the State Operations Manual (SOM) (CMS Pub. 100 07), effective November 28, 2017. The SOM is available at https://www.cms.gov/ Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs-Items/CMS1201984. Appendix PP is available at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/ GuidanceforLawsAndRegulations/Downloads/Appendix-PP-State-Operations-Manual.pdf. F-Tags F157, F282, and F323 at issue in this survey are now found at F580, F659, and F689, respectively. This decision cites to the regulations and F-Tags in effect at the time of the survey. at the “J” scope/severity level.Scope and severity levels are used by CMS and state survey agencies to select remedies. The scope and severity level is designated by letters “A” through “L,” selected from the scope and severity matrix published in the SOM, Ch. 7, § 7400.3.1 (Rev. 185, Nov. 16, 2018). Facilities with deficiencies of levels A, B, or C remain in substantial compliance. Id., citing 42 C.F.R. § 488.301. Levels D, E, or F indicate a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy. Id. Levels G, H, or I indicate a deficiency that involves actual harm that does not amount to immediate jeopardy. Id. Scope and severity levels J, K, or L contain deficiencies that constitute immediate jeopardy to resident health or safety. Id. The matrix specifies which remedies are required and optional at each level based upon the pervasiveness of the deficiency. Relevant here, a scope and severity level of “J” indicates an isolated deficiency that poses immediate jeopardy to resident health or safety. Id.  CMS Ex. 1 at 1‑27, 27‑53, 54-83; CMS Ex. 2.

On November 2, 2017, CMS notified Petitioner it was currently in substantial compliance with program requirements but would be subject to a $6,394 per-day CMP from August 31, 2017 through September 10, 2017, the period of time the survey ending September 29, 2017 identified past noncompliance at the immediate jeopardy level.  CMS Ex. 13 at 1-2.

On December 29, 2017, Petitioner timely requested a hearing before an administrative law judge in the Civil Remedies Division to challenge the imposition of the remedies indicated above, and I was designated to hear and decide the case.  On January 12, 2018, I issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order) that set forth deadlines by which the parties were required to file their pre-hearing exchanges, including briefs, exhibits, witnesses, and the direct testimony of any witnesses identified.  Pre-hearing Order ¶ 4.

II. Hearing and Admission of Exhibits

CMS timely filed its pre-hearing exchange consisting of a pre-hearing brief and 15 proposed exhibits, which included the written declarations of two proposed witnesses.  (CMS Br. and CMS Exs. 1-15).  Petitioner timely filed a portion of its pre‑hearing exchange, including its pre-hearing brief (P. Br.) and a request to cross-examine CMS’s

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witnesses.  After several extensions, Petitioner filed proposed exhibits that included affidavits of 21 proposed witnesses and an Exhibit List of 42 exhibits (P. Exs. 1-42).  CMS then filed a supplement to its pre-hearing exchange consisting of CMS Exhibits 14-A, 15-A, and 16.  CMS did not seek to cross-examine any of Petitioner’s proposed witnesses.

On September 12, 2018, I issued a Notice of Hearing scheduling a videoconference hearing on April 18, 2019 to receive evidence into the record and permit Petitioner to cross-examine CMS’s witnesses.  Upon CMS’s unopposed motion, I rescheduled the hearing to take place April 22, 2019.  At the hearing, I entered CMS Exhibits 1 through 16 into the record without objection, including CMS Exhibits 14-A and 15-A.  Transcript (Tr.) at 8-9.  I sustained CMS’s objections to Petitioner’s proposed Exhibits 8, 10, 12, 21, and 22.  Id. at 10-11.  Petitioner did not submit its proposed Exhibits 25 through 33 or 35 into evidence.  Id. at 9.  I thus admitted Petitioner’s Exhibits 1 through 7, 9, 11, 13 through 20, 23 through 24, 34, and 36 through 42 into the record.  Id. at 11-12.  I rejected testimony from witnesses for whom Petitioner did not submit written direct testimony.  Id. at 12.  I also denied Petitioner’s request to cross-examine two adverse witnesses because it had not requested subpoenas for their testimony.  Id.

After the hearing, Petitioner and CMS filed post-hearing briefs (P. Post-hearing Br., CMS Post-hearing Br.).

III. Statement of Issues

The issues presented are:

1. Whether Petitioner was in substantial compliance with Medicare program requirements;
2. If Petitioner was not in substantial compliance, whether CMS’s determination of immediate jeopardy was clearly erroneous;
3. If Petitioner was not in substantial compliance, whether it returned to substantial compliance before September 11, 2017; and
4. If Petitioner was not in substantial compliance, whether the $6,394 per day CMP imposed by CMS is reasonable.

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IV. Discussion

1. Applicable Law

To participate in the Medicare program, a skilled nursing facility like Petitioner must maintain substantial compliance with program participation requirements.  To be in substantial compliance, a facility’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  A deficiency is a violation of a participation requirement established by sections 1819(b), (c), and (d) of the Social Security Act (Act) (42 U.S.C. § 1395i-3(b), (c), and (d)), or the regulations at 42 C.F.R. pt. 483, subpt. B.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301.

CMS may impose enforcement remedies against a facility that is not in substantial compliance with a participation requirement.  Act § 1819(h)(2); 42 U.S.C. § 1395i‑3(h)(2); 42 C.F.R. § 488.406.  Among those remedies, and relevant here, CMS may impose a per-day CMP for the number of days a facility is not in substantial compliance.  42 C.F.R. § 488.430(a).  A per-day CMP may range from either $50 to $3,000 per day, adjusted for inflation, for less serious noncompliance or $3,050 to $10,000 per day, adjusted for inflation, for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  42 C.F.R. § 488.438(a)(1).

A facility has a right to appeal a “certification of noncompliance leading to an enforcement remedy.”  42 C.F.R. § 488.408(g)(1); see also 42 C.F.R. §§ 488.330(e), 498.3(b)(13).  However, CMS’s choice of remedies and the factors CMS considered when choosing remedies are not subject to review.  42 C.F.R. § 488.408(g)(2).

2. Relevant Facts

CMS’s allegations of “J” level immediate jeopardy deficiencies concern one resident at Petitioner’s facility, Resident 1.  CMS Ex. 1 at 1.

Resident 1 was 49 years old on his admission to Petitioner’s facility on August 1, 2017.  CMS Ex. 10 at 1.  He was previously hospitalized in an intensive care unit and then transferred to a long-term acute care facility for ventilator weaning from June 22, 2017, through August 1, 2017.  Id.  Resident 1 had a history of drug abuse, hepatitis C, renal failure, and hypertension. Id.  During his hospital stay, he had been intubated for bleeding in his brain stem.  Id.

Hospital staff assessed Resident 1 to be critically ill and his prognosis to be poor.  Id.  They did not believe surgical intervention for his cerebral hemorrhage to be warranted and instead discussed palliative care with his family, who opted for full medical care and treatment, meaning Resident 1 was to be treated as a “full code” patient.  Id.  Resident 1

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exhibited other medical complications included pneumonia, acute and chronic respiratory failure requiring tracheostomy, and “abdominal distention with ascites due to cirrhosis and paracentesis required,” with gastrostomy feeding tube (g-tube) placement.  Id.

The transfer form associated with Resident 1’s August 1, 2017 admission identified his father as his contact person.  P. Ex. 41.Resident 1’s father was also identified as his next of kin with power of attorney (POA), while a reference to Resident 1’s girlfriend is preceded by a large “X” and notation “to not make medical . . .” P. Ex. 40.  The form indicated Resident 1 could not walk and required total care, meaning toileting, transferring, bathing, and dressing, though he was able to feed himself.  Id.  Nurse-to-nurse notes indicated the resident was incontinent, exhibited a stage III ulcer on his left buttocks, had ascites that required draining by paracentesis,“Ascites” is an “effusion and accumulation of serous fluid in the abdominal cavity” while “abdominal paracentesis” refers to “insertion of a trocar through an incision into the peritoneal cavity to . . . remove ascitic fluid.” Dorland’s Illustrated Med. Dict. (Dorland’s) at 164, 1395 (31st ed. 2007); see also Tr. at 199 (testimony by Surveyor Belinda Beard describing paracentesis). A “trocar” is “a sharp-pointed instrument equipped with a cannula, used to puncture the wall of a body cavity and withdraw fluid.” Dorland’s at 1996. A “cannula” is “a tube for insertion into a vessel, duct, or cavity.” Id. at 285. and a history of falls.  P. Ex. 40.

The facility’s admission record for Resident 1 identified his diagnoses to include chronic viral hepatitis C, acute and chronic respiratory failure, Type 2 diabetes, acidosis, other psychoactive substance dependence in remission, essential (primary) hypertension, other nontraumatic intracerebral hemorrhage, gastro-esophageal reflux disease, constipation, sacral pressure ulcer unstageable, chronic kidney disease, ascites, and tracheostomy.  P. Ex. 38 at 1-2.  That record also identified Resident 1’s contacts to include his father (also “A/R Guarantor” and “POA”), his son, and [AW], a “friend.”Facility staff documented that Resident 1’s father [RD] authorized sharing medical information with the resident’s girlfriend [AW] as follows: “[RD] gives verbal consent for information regarding [redaction] to [AW]. [RD] also requests that the care conference be discussed with [AW].” P. Ex. 39; see also P. Ex. 24 ¶¶ 4-7; P. Ex. 15 ¶ 10.  Id. at 1.

Admitting orders from Resident 1’s physician required facility staff to change his g-tube syringe daily and clean the site at least every shift and more often as needed, as well as clean and wrap his left foot wound daily.  CMS Ex. 5 at 2. Resident 1’s physician provided that Resident 1 “[m]ay go on pass and or LOA [leave of absence] with responsible party with medications” and that “Resident and family are aware of condition and diagnosis.”  Id.  His physician also ordered “RT” evaluation and treatment as needed.  Id.  Resident 1’s medication orders included Amlodipine Besylate 5 mg once daily and Hydralazine Hcl 50 mg once every 6 hours for essential (primary) hypertension.  Id. at 4-5.  They also included insulin injections twice daily, sliding scale blood sugar readings

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with insulin injections as needed, application of topical solutions for wound care, and medications and suppositories once every 12 hours for constipation.  Id.

On August 2, 2017, Resident 1 underwent evaluations to create plans of care for speech language therapy (ST), physical therapy (PT), and occupational therapy (OT).  CMS Ex. 10 at 1-2 (ST), 14-16 (PT), 24-26 (OT).  The ST therapist observed Resident 1 exhibited a moderate to severe impairment in cognition, memory, and safety/judgment, was oriented to person, and had the ability to complete 25% of the assessment tasks.  Id. at 1.  The PT therapist determined Resident 1 required maximum assistance for bed mobility, bed transfers, balance, and walker negotiation, but had the ability to ambulate 35 feet with a rolling walker.  Id. at 14-15.  The OT therapist found Resident 1 was oriented to self but required maximum assistance in toileting, mobility, and dressing his lower body, demonstrated fatigue after one to two minutes, and exhibited severe cognitive impairment for memory.  Id. at 24-25.   Resident 1 was noted to be a high fall risk throughout PT services and to have a continual decline in cognitive ability with increased confusion and fatigue in ST services.  Id. at 12, 23.  Each of these rehabilitation specialists set short‑term and long-term goals for Resident 1 during his stay at the facility.

The facility conducted Resident 1’s MDS assessmentSkilled nursing facilities are required to conduct a comprehensive assessment of a new resident’s functional capabilities and health problems; the findings and conclusions of this screening are integrated into a document referred to as the Minimum Data Set. 42 C.F.R. § 483.20(b). beginning August 8, 2017 and ending August 14, 2017.  CMS Ex. 6 at 1, 45.  The MDS assessors observed Resident 1 had difficulty communicating some words or finishing thoughts but was able to do so if prompted or given time, and he usually understood others, though he “misses some part/intent of message.”  Id. at 6.  The MDS assessors administered the Brief Interview for Mental Status (BIMS) to Resident 1, who scored 4 on a scale of 15, reflecting severe cognitive impairments that rendered him essentially incapable of being interviewed.  Id. at 7;See Long-Term Care Facility Resident Assessment Instrument (RAI) 3.0 User’s Manual Ver. 1.14, Chapter 3, Section C0500, Page C-14, available at https://downloads.cms.gov/files/MDS-30-RAI-Manual-V114-October-2016.pdf (last rev. Oct. 2016). CMS Ex. 14 ¶ 6.

Resident 1 required extensive assistance in most activities of daily living, including assistance by one person in bed mobility and transfers and assistance from two or more people in toileting.  CMS Ex. 6 at 15.  He walked in his room with assistance from one person but did not walk in the corridor or off unit.  Id.  He was unable to balance without staff assistance during transitions and walking and was totally dependent on staff in toileting.  Id. at 16.  He used a wheelchair for mobility.  Id.  He had frequent urinary incontinence and was always incontinent of bowel.  Id. at 21.  By the time of his

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assessment, he had two or more falls without injury.  Id. at 26.  He received a mechanically altered and therapeutic diet requiring use of a feeding tube.  Id. at 27.

Petitioner’s MDS assessment also documented two Stage 3 pressure ulcers that were present on admission and that Resident 1 had received ST, OT, and PT services since August 2, 2017.  Id. at 34-35.  The assessment documented the facility’s expectation that Resident 1 would “remain in this facility,” and that he did not wish to discuss the possibility of leaving the facility and returning to live in the community.  Id. at 37-38.

On August 14, 2017, Resident 1 also received Care Area Assessment (CAA) and care planning for cognitive loss/dementia, communication, urinary incontinence and indwelling catheter, falls, nutritional status, feeding tube, dehydration/fluid maintenance, and pressure ulcers.  CMS Ex. 6 at 40.  The facility’s MDS Coordinator electronically signed the CAA and care planning entries on September 5, 2017.  Id.

Resident 1’s September 2017 care plan identified numerous focus areas, interventions, and goals to achieve by November 21, 2017.  CMS Ex. 8.  For hypertension, facility staff were expected to:  “Give anti hypertensive medications as ordered.  Observe for side effects . . . and effectiveness.  Observe for and document any edema.  Notify MD.”  Id. at 1.  The care plan also required facility staff to monitor the resident’s blood glucose levels as ordered.  Id. at 2.  For shortness of breath related to hypoxia, facility staff was required to “[m]onitor/document changes in orientation, increased restlessness, anxiety, and air hunger” and to “[p]osition [him] with proper body alignment for optimal breathing pattern.”  Id. at 3.  For renal insufficiency, the care plan required facility staff to “[m]onitor and report changes in mental status; lethargy; tiredness; fatigue; tremors; seizures,” monitor lab reports of electrolytes and notify the physician if Resident 1’s potassium (K) level exceeded 5.5, and monitor vital signs.  Id. at 4.  For incontinence, staff was required to “[c]heck and change every 2 hours and PRN.”  Id. at 6.

In other focus areas, the care plan required facility staff to monitor and assess Resident 1 for constipation, nutritional risk related to pressure ulcers and use of a feeding tube, impairment in cognitive function and thought processes suggested by his very low BIMS score, self-care performance deficits, immobility, the high risk of falls stemming from his gait and balance issues, dehydration and fluid deficits related to Hepatitis C, and wounds (ulcers) on his left foot, sacrum, and left buttock.  Id. at 7, 9, 11-19.

1. The August 31, 2017 off-premises physician office visit and Resident 1’s death.

Resident 1’s medical condition included liver dysfunction related to advanced cirrhosis, Hepatitis C virus, and ascites requiring drainage by paracentesis.  P. Ex. 38; P. Ex. 40; CMS Ex. 3 at 1; CMS Ex. 6 at 22-23; CMS Ex. 9 at 37.  Nursing notes from August 11,

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2017 document Resident 1’s increased abdominal girth and confusion and the need for laboratory testing and possible paracentesis after recent falls.  CMS Ex. 9 at 23-24.

On August 17, 2017, Resident 1 was unable to attend an appointment for paracentesis due to lack of transportation.  Id. at 16‑17.  His appointment was rescheduled to August 31, 2017.  Id. at 17.  On August 18, 2017, at 11:12 p.m., the facility transported Resident 1 to a hospital emergency department “for stat paracentesis.”  Id. at 15.  The facility provided all of his medication orders to the transportation service which brought the resident to the hospital.  Id. at 15.  The next morning, at 7:45 a.m., a facility nurse contacted the hospital emergency department and was told the resident was being seen by a doctor and to call back in an hour.  Id.  The nursing note then states:  “Reported to 7-3 shift.”  Id.  There are no nursing entries indicating that any facility nurse re-contacted the emergency department that day or when the resident returned to the SNF, and there are no hospital records concerning the stat paracentesis performed on the resident August 18 to 19, 2017.

On August 31, 2017, Nurse Brittany Hill spoke with [AW], the resident’s girlfriend, at 8:55 a.m. “to confirm his MD appointment for 8/31/17.  Writer confirmed with girlfriend that she was going to appointment and would be meeting him there at the MD office.  Writer confirmed the appointment time and address with girlfriend.”  CMS Ex. 9 at 1; see also CMS Ex. 3 at 20-22; P. Ex. 19 ¶ 6.  According to surveyor notes, CNA Detric Cook prepared the resident for his physician appointment that day, dressing him in shorts, a t-shirt, “flip flops” on his feet, and no jacket.  CMS Ex. 3 at 28.

The surveyor notes indicate that Resident 1 asked CNA Cook why he was going, and the CNA “told him [his girlfriend] was going to meet him in lobby of doctor office.”  Id.  The CNA reported to the survey that he “pushed [Resident 1] up to front lobby to wait - I didn’t see him anymore after lunch . . . .”  Id. at 29.  According to CNA Cook, Resident 1 was sometimes confused, “forget what he was saying,” and would at times cry because he was unable to “get words out.”  CMS Ex. 3 at 28;CMS Ex. 14 ¶ 7.   Resident 1’s primary nurse that day, LPN Mary “Frankie” Wells, reported that she was unaware CNA Cook took Resident 1 to the lobby to wait for transportation, did not provide the resident with paperwork for his appointment, and was later unable to contact the physician’s office concerning the resident’s visit.  P. Ex. 19 ¶¶ 13-15.

Derby City Taxi service, a “door-to-door”According to Derby City Taxi staff, this specifically meant transportation from Petitioner’s lobby to the front of the building where Resident 1’s medical appointment was to take place. CMS Ex. 14 at ¶ 8. service, transported Resident 1 from the facility to the physician’s office and took him to the front door of the office building.  CMS Ex. 14 ¶ 8.  On arrival, “no one was present to meet Resident 1, so [the driver] pushed Resident 1 in his wheelchair to the third-floor medical office where his appointment was to take place.”  Id.  The driver provided Resident 1 with a business card

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to call to be picked up for the return trip after the appointment, although the driver expressed doubts that Resident 1 “would remember or understand the instructions to call for a pick-up.”  Id.

Physician’s Assistant (PA) Robert Tatum examined Resident 1 that day and noted his chief complaint to be cirrhosis secondary to a Hepatitis C infection.  CMS Ex. 11 at 2.  PA Tatum observed Resident 1 was “not very aware of his medical conditions/status,” but reported he had undergone paracentesis recently.  Id.  The PA noted forgetfulness, abnormal appearance, “difficult speaking, muscle wasting, temporal wasting,” and an abnormal liver and spleen.  Id. at 2-4.  PA Tatum concluded that Resident 1 was “a risk level 4 DZ [disease] threat function/life.”  Id. at 4.The American Society of Anesthesiologists (ASA) Physical Status Classification System categorizes a patient’s physiological status in order to predict operative risk. A risk level of 4 reflects “[a] patient with severe systemic disease that is a constant threat to life.” Am. Society of Anesthesiologists, Committee on Economics, ASA Physical Status Classification System, available at https://www.asahq.org/standards-and-guidelines/asa-physical-status-classification-system (last amended Dec. 13, 2020).

Resident 1 exited the office building alone and in his wheelchair at 5:41 p.m.  CMS Ex. 2 at 2, 5; CMS Ex. 3 at 6; P. Hearing Req. at 13.  On September 2, 2017, Resident 1 was found dead close to a tree line near railroad tracks, over nine miles from the office building.  CMS Ex. 3 at 31; CMS Ex. 2 at 5; P. Ex. 20.

2. Telephone contacts between Petitioner and AW on August 31, 2017.

At approximately 8:30 a.m. on August 31, 2017, Nurse Hill notified Resident 1’s girlfriend AW of the time and address of Resident 1’s physician appointment by telephone and confirmed AW would meet Resident 1 at the physician’s office.  CMS Ex. 3 at 20; P. Ex. 9 ¶ 10; P. Ex. 19 ¶¶ 3-8.

AW was not present at the physician office building when Resident 1 arrived by taxi on August 31, 2017.  CMS Ex. 3 at 11, 40-41; CMS Ex. 14 ¶ 8.  The taxi driver pushed Resident 1 by wheelchair to the physician’s office on an upper level floor, placed him in line for registration, and left his business card with Resident 1 to contact him for transportation back to the facility after the appointment.  CMS Ex. 3 at 41; CMS Ex. 14 ¶ 8.

At or about 3:30 p.m., AW contacted facility Medical Records representative Carma Richardson and stated that she was not at the physician’s office due to car trouble but expected a friend to pick her up and transport her there.  P. Ex. 24 ¶ 9; CMS Ex. 3 at 11; CMS Ex. 14 ¶¶ 12-13.

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At or about 5:00 p.m., AW informed facility Director of Nursing (DON) Candy Shugars that she had not been able to meet Resident 1 at his physician visit due to car trouble and asked whether Resident 1 had returned to the facility from his appointment.  CMS Ex. 3 at 34; P. Ex. 6 ¶¶ 2-12.  DON Shugars asked Director of Rehabilitation Services Barbara ONeal to check whether the resident had returned.  CMS Ex. 3 at 34.  DON Shugars did not hear anything further from Director ONeal and left the facility around 6:00 p.m.  Id.  Director ONeal declared that she confirmed Resident 1 was not in his room and spoke on the telephone with AW to inform her Resident 1 had not yet returned and provided AW with the physician office address.  P. Ex. 6 ¶¶ 2-12.Director ONeal’s affidavit states that a true and correct copy of the page from the appointment book with physician office address is attached as Exhibit 1 to the affidavit. P. Ex. 6 ¶ 10. No exhibit is attached to her affidavit.  Director ONeal left the facility at about 5:00 p.m., only later learning Resident 1 had not returned from his appointment.  CMS Ex. 3 at 26‑27; CMS Ex. 14 ¶ 12.

Facility nurse Lucky Oseghale stated that at 7:00 p.m., she received a report from the earlier shift indicating Resident 1 had gone to an offsite medical appointment, but that the report “didn’t tell me when to expect [him] back.”  CMS Ex. 3 at 9; CMS Ex. 9 at 1; P. Ex. 3 ¶¶ 5-6.  LPN Nancy Jones stated that there were “no concerns” about Resident 1’s absence by 7:00 p.m. that night.  CMS Ex. 3 at 19; P. Ex. 14 ¶¶ 2, 4-5.

At 9:00 p.m., Nurse Oseghale received a phone call from AW asking for Resident 1.  P. Ex. 3 ¶ 6; CMS Ex. 3 at 9-10, 34-36.  Nurse Oseghale referred AW to facility Social Worker Wanda White, who asked AW why she had not met Resident 1 at the physician’s office, as planned.  P. Ex. 9 ¶¶ 9, 11-12.  Ms. White then exchanged telephone calls with facility administrator Kathy Holderman, local police, Resident 1’s aunt, and Resident 1’s father.  P. Ex. 9 ¶¶ 13-16; P. Ex. 42.  According to Nurse Oseghale, “the missing person protocol was implemented immediately.”  P. Ex. 3 ¶ 7; see also CMS Ex. 3 at 17, 19, 21, 28 (referencing Petitioner’s elopement policy).  Facility staff, with AW and law enforcement authorities, conducted a search throughout the city until learning that Resident 1 was found dead on September 2, 2017.  See, e.g., P. Ex. 5 ¶¶ 3‑5; CMS Ex. 3 at 6-7, 15, 19, 21-22, 31.

3. Analysis
   1. CMS’s identification of only two of the three surveyors who surveyed the facility did not cause Petitioner prejudice or harm

Petitioner observes three state surveyors were sent to conduct the survey at issue here, but CMS identified only two.  P. Post-hearing Br. at 2.  Petitioner asserts it suffered material prejudice as a result, and could not fully and competently present its case, and that judgment in its favor is the appropriate remedy.  Id.  This claim is without merit.  First,

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Petitioner was clearly aware of the third surveyor – in her own sworn testimony from May 2018, its Administrator noted a third surveyor was sent to assist in conducting the survey.  P. Ex. 5 ¶¶ 6, 8, 10.  Despite its awareness of the existence of the third surveyor well before this case was initiated, Petitioner failed to request issuance of a subpoena for her appearance at the hearing.  Petitioner otherwise fails to explain how the mere arrival of a third surveyor near the end of the survey period impeded Petitioner’s ability to contest CMS’s claim it was not in substantial compliance.  Life Care Ctr. of Tullahoma, DAB No. 2304 at 51 n.15 (2010) (providing a party must demonstrate prejudice to establish due process violation).  And to the extent Petitioner suggests the third surveyor was biased, such allegations are immaterial if objective evidence, such as a facility’s own records, establishes noncompliance.  Jewish Home of E. Pa., DAB No. 2254 at 14-15 (2009) (internal citations omitted).  As discussed herein, the evidence of record, including Petitioner’s own records, establish a basis for finding noncompliance in this case.  Petitioner’s claim that it was subject to prejudice is without merit.

2. Petitioner did not substantially comply with 42 C.F.R. § 483.25(d), Tag F323.

42 C.F.R. § 483.25(d) requires facilities to minimize the possibility of accidents by keeping residents’ environments as free of hazards as possible and by providing adequate supervision and assistive devices.  The provisions of section 483.25(d) “come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm.”  Meridian Nursing Ctr.,DAB No. 2265 at 10 (2009), aff’d sub. nom. Fal‑Meridian, Inc. v. U.S. Dep’t of Health & Human Servs.,604 F.3d 445 (7th Cir. 2010).

Relevant here, subsection 483.25(d)(2) requires a facility to take “all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”  Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003) (providing a facility must take “all reasonable precautions against residents’ accidents”), aff’g Woodstock Care Ctr., DAB No. 1726 (2000)).

Facilities are given “the flexibility to choose the methods” they use to provide supervision or assistive devices to prevent accidents, so long as the chosen methods “constitute an ‘adequate’ level of supervision” for a particular resident’s needs.  Windsor Health Care Ctr.,DAB No. 1902 at 5 (2003), aff’d sub. nom. Windsor Health Ctr. v. Leavitt,127 F. App’x 843 (6th Cir. 2005).

CMS argues here that Petitioner failed to provide adequate supervision to Resident 1 because the facility should have known he was not able to leave the facility unaccompanied, and because it took no action when it discovered Resident 1’s girlfriend had not met Resident 1 at his offsite doctor’s appointment, resulting in his eventual death.

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Petitioner responds that CMS misstates the true nature of Resident 1’s physical and mental limitations, which had improved since his admission through the facility’s rehabilitation services, presumably obviating any obligation to ensure the resident did not leave the facility unescorted.  P. Post-hearing Br. at 10-11.  The facility otherwise contends it met its obligation to provide supervision for Resident 1’s offsite appointment because his girlfriend had agreed to meet him at his doctor’s office and neither she, the doctor’s office, nor the taxi service driver advised Petitioner that Resident 1 was in fact unaccompanied during his appointment.  Id. at 10.  As I explain here, Petitioner’s arguments are unpersuasive.

1. Resident 1 required supervision in the form of assistance of a responsible party to leave the facility on August 31, 2017.

The record does not substantiate Petitioner’s claim that Resident 1’s cognitive and physical limitations had improved to the point that the facility could not have been expected to foresee he might have been subject to accidental harm by being allowed to leave its premises without escort from a responsible party.  P. Post-hearing Br. at 18-19; see also P. Ex. 19 ¶¶ 11, 19.

Resident 1 demonstrated substantial mental limitations upon his admission such that Petitioner found him severely cognitively impaired.Petitioner assessed Resident 1 with a BIMS score of 4 out of 15. Surveyor Beard opined a BIMS score this low reflected cognitive limitations so severe as to render Resident 1 uninterviewable. CMS Ex. 14 ¶ 6. The surveyor’s opinion is consistent with CMS’s RAI Manual, which indicates a BIMS score of 0 to 7 reflects “severe impairment.” See supra n.6 at C-14. CMS Ex. 6 at 5-7.  He exhibited significant memory deficits as well as problems understanding and communicating with others.  CMS Ex. 6 at 6-7; CMS Ex. 7 at 1, 4-6, 16.  Resident 1’s care plan documented these significant limitations and required facility staff to limit Resident 1 to one-step tasks, “[c]ue, reorient and supervise as needed,” engage the resident in simple activities that avoided demanding tasks, and observe him for changes in cognitive function, including decision making ability, memory, recall, awareness, difficulties in expressing himself and understanding others, and mental status.  CMS Ex. 8 at 11.  Resident 1’s physical limitations were also significant.  He required extensive assistance in most activities of daily living, including toileting and bed transfers.  CMS Ex. 6 at 15.  He was unable to balance without assistance and used a wheelchair for mobility.  Id. at 16.  Id.  He had frequent urinary incontinence and was always incontinent of bowel.  Id. at 21.  These limitations do not suggest Resident 1 could safely leave the facility without significant assistance.

Petitioner claims these findings do not provide an accurate reflection of Resident 1’s true limitations on August 31, 2017, the day of his offsite appointment, as he had shown

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improvement by virtue of the facility’s rehabilitation efforts.Petitioner makes much of the fact that the surveyors conceded under cross-examination that Resident 1 had made “impressive” progress in physical therapy and a “grand improvement” in speech therapy. P. Post-hearing Br. at 11, citing Tr. 75-76, 77-78, 125. But as the clinical evidence outlined here demonstrates, these concessions do not corroborate Petitioner’s claim that Resident 1’s mental and physical impairments improved to the point that he could leave the facility unescorted.  P. Post-hearing Br. at 10-11.  But the facility’s clinical notes for Resident 1 do not corroborate that claim; they instead document Resident 1 had significant physical and cognitive issues that persisted throughout the month following his admission to the day of his offsite appointment.

Facility staff documented Resident 1 fell three times in his room in the weeks following his admission, suggesting he would require a significant level of assistance to leave his own room, let alone the facility.  CMS Ex. 9 at 24, 34, 35 (documenting Resident 1’s falls on August 4, 6, and 11, 2017).  On August 29, 2017, two days before his offsite appointment, Resident 1’s occupational therapist noted decreased safety awareness and tolerance for standing or balance and observed Resident 1 exhibited “increased confusion as the day goes along,” and “should not be allowed up without assistance.”  CMS Ex. 10 at 34.

That same day, his physical therapist observed some improvement in ambulation and balance but concluded Resident 1 remained at high risk for falls and “based on [his] impulsive behavior and his history of brain stem stroke [would] most likely always be needing supervision for safety.”  Id. at 22 (emphasis added).  On August 30, 2017, the day before his offsite medical appointment, Resident 1’s speech therapist noted he “demonstrated little progress” and that discharge from further attempts at speech therapy was appropriate.  CMS Ex. 10 at 9.

The recorded statements of Petitioner’s own staff similarly belie its claim that Resident 1’s physical and mental condition had improved to the point he did not require supervision to leave the facility.  CNA Cook told both surveyors that on August 31, 2017, the day of the appointment, Resident was confused as to where he was going and why and had to be repeatedly reminded.  CMS Ex. 14 at 6; CMS Ex. 15 at 5-6.  Indeed, CNA Cook described Resident 1 as frequently confused with difficulty communicating.  Id.  In generating a missing persons report, local police recorded statements from members of Petitioner’s staff indicating AW usually accompanied Resident 1 to offsite appointments because “he becomes disoriented and confused easily…”  CMS Ex. 12 at 2.

In sum, Petitioner’s own clinical records and the characterizations of Resident 1’s limitations by its own staff uniformly demonstrate Resident 1 had not significantly improved during his time at the facility and, owing to his significant cognitive and physical limitations, needed extensive supervision and assistance to leave the facility.

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2. Petitioner failed to adequately supervise Resident 1’s offsite visit when it permitted him to leave the facility without an escort.

I am unpersuaded by Petitioner’s argument that it satisfied its obligation to provide adequate supervision for Resident 1’s offsite appointment by arranging for his girlfriend to meet him there.  As I have already discussed, Petitioner’s own assessment of Resident 1’s severe physical and cognitive limitations would have put any skilled nursing facility on notice that such an individual required significant levels of supervision and assistance, particularly in order to leave the facility.  Koester Pavilion, DAB No. 1750 at 24 (2000) (providing the regulations impose a “high expectation” on facilities to prevent accidents); Woodstock Care Ctr., DAB No. 1726 at 29-30 (providing adequacy of the facility’s supervision includes in part consideration of the resident’s capacity to avoid harm).

Petitioner cannot claim it could not have foreseen the hazards of allowing Resident 1 to leave the facility unescorted.  Resident 1’s physician specified in Resident 1’s orders that he could leave the facility (“go on pass and or [leave of absence]”), but only “with [a] responsible party with medications.”  CMS Ex. 5 at 3 (emphasis added).Resident 1’s physician may not have intended the terms “go on pass” or “leave of absence” to apply to offsite medical appointments. However, I find it extremely unlikely the doctor would have provided fewer restrictions for Resident 1 to leave the facility for non-medical reasons than for medical ones. As such, I conclude the physician’s restrictions would apply equally in any scenario where Resident 1 left the facility, regardless of the reason.  Resident 1’s physician established the resident could safely leave the facility only if escorted by a “responsible party” who would supervise him and manage his medications.  There is no dispute that facilities like Petitioner are obliged to follow the orders of a resident’s physician.  See Life Care Ctr. of Tullahoma, DAB No. 2304 at 34 (2010), aff’d, Life Care Ctr. Tullahoma v. Sec’y of U.S. Dept. of Health & Human Servs., 453 F. App’x 610 (6th Cir. 2011) (providing “necessary care and services” includes those ordered by a resident’s physician).  Petitioner cannot plausibly argue that it could not foresee a resident might come to harm in circumstances the resident’s physician imposed restrictions to avoid.

Petitioner’s own staff thought Resident 1 needed accompaniment to leave the facility.  RN Brittany Hill opined to Surveyor Beard that the facility did not provide the services necessary to ensure that Resident 1 returned from his offsite appointment safely.  CMS Ex. 3 at 22.  Social worker Wanda White testified that if she knew AW was unavailable, “… we would have sent someone to sit with him.”  P. Ex. 9 at 2.  LPN Mary Wells stated she “would have sent a staff member” with Resident 1 if she knew AW could not attend the appointment, and that if a staff member could not go, she would have canceled Resident 1’s appointment.  P. Ex. 19 at 1.  Both White and Wells acknowledged Resident 1’s need to be accompanied to his appointment, consistent with his physician’s orders,

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but neither appears to have realized ensuring someone accompanied the resident to an offsite appointment and back represented a significantly higher level of supervision than simply arranging for Resident 1 to be transportedEven this aspect of Petitioner’s approach seems cavalier; CNA Cook admitted to simply wheeling Resident 1 to the facility lobby and leaving without ensuring the transportation company picked him up, despite characterizing him as confused, forgetful, and frustrated because of his difficulty communicating. CMS Ex. 14 at 6; CMS Ex. 15 at 5-6. Nurse Wells admitted that Resident 1 was taken by the nurse aide from his room without her knowledge, meaning she had not given Resident 1 what she refers to as “paperwork” – his insurance information, his list of medications, and a face sheet – for him to take to the doctor’s office. P. Ex. 19 at 2. offsite to be met by his girlfriend.

Accordingly, I find Petitioner failed to provide adequate supervision to Resident 1 by improperly permitting him to leave the facility unaccompanied by a “responsible party”Petitioner complains that Resident 1’s physician’s orders did not require facility staff to accompany Resident 1 on his outings and expends considerable effort to establish AW was a “responsible party.” P. Post-hearing Br. at 12-13. There may be some reasonable dispute as to whether Petitioner should have identified AW as a “responsible party” for outings, as contemplated by Resident 1’s physician, since the facility seemed to have been aware she did not have a car and relied on others for transportation. P. Ex. 19 ¶ 9. The point is ultimately irrelevant, however, as Petitioner did not see fit to ensure anyone accompanied Resident 1 when he left the facility. who could ensure his safe return to the facility.  By allowing a resident subject to severe cognitive and physical impairments like Resident 1 to travel unaccompanied from the facility to an off-premises medical appointment, contravening his doctor’s orders as well as the observations of its own staff, Petitioner failed to take all reasonable precautions against the foreseeable risk of harm to that resident.

3. Petitioner otherwise failed to adequately supervise Resident 1 when it received notice his girlfriend AW had not met him at his doctor’s office.

Petitioner’s failure to ensure a “responsible party” accompanied Resident 1 when leaving its facility is sufficient to sustain the deficiency cited under 42 C.F.R. § 483.25(d).  But even allowing for argument’s sake that Petitioner could have provided adequate supervision to Resident 1 by arranging for his girlfriend AW to meet him at his offsite medical appointment, Petitioner nevertheless failed to satisfy its obligation under the regulations when it took no action after becoming aware AW had not met Resident 1 for his appointment.

The record is indisputable on these points:  on August 31, 2017, Petitioner sent Resident without accompaniment for an offsite medical appointment scheduled to take place at 3:00 p.m. in downtown Louisville via taxi service.  CMS Ex. 9 at 1; CMS Ex. 14 at 5-7; CMS Ex. 15 at 5-6.  The taxi driver indicated no one was there to meet Resident 1 when he arrived at the doctor’s office, so he escorted Resident 1 to the appointment and

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provided the resident a business card so he could call for a return trip at the conclusion of the appointment.  CMS Ex. 14 at 6-7.

At or about 3:30 p.m., Petitioner’s Medical Records representative Carma Richardson spoke by telephone with Resident 1’s girlfriend, AW, who informed Ms. Richardson she was “having car trouble.”  P. Ex. 24 ¶ 9.  Ms. Richardson declared she was aware AW was acting as Resident 1’s “escort” for his visit to the doctor’s office and understood AW to state that a friend would pick her up, and that she would eventually arrive at the doctor’s office.  Id.  Sometime between 4:30 p.m. and 5:00 p.m., Director of Nursing (DON) Candy Shugars and Director of Rehabilitation Services Barbara ONeal each spoke with AW by telephone and learned she was still not with Resident 1 at the physician’s office.  CMS Ex. 3 at 21, 26, 34; CMS Ex. 14 at ¶ 12; CMS Ex. 15 at ¶ 12; P. Ex. 6 ¶¶ 2-13.

Resident 1’s appointment ended at around 5:00 p.m., according to the time-stamped medical notes generated at that visit.  CMS Ex. 11.  Video surveillance showed Resident 1 wheeling himself away from the building at 5:41 p.m.  CMS Ex. 2 at 2, 5.  At 7:00 p.m., facility staff from the previous shift informed Nurse Oseghale and LPN Jones that Resident 1 had not returned from his appointment.  P. Ex. 3 ¶¶ 5-6; P. Ex. 14 ¶¶ 4-5; CMS Ex. 3 at 9, 19; CMS Ex. 9 at 1.  It was not until 9:00 p.m., approximately six hours after Resident 1 had left the facility for his appointment, that the facility began to inquire about Resident 1’s whereabouts.  P. Ex. 3 ¶¶ 5-6; P. Ex. 14 ¶¶ 4-5; CMS Ex. 3 at 9, 19; CMS Ex. 9 at 1; see also P. Ex. 9 ¶¶ 9, 11-16.

CMS argues that Petitioner was put on notice that it could not rely on AW to act as Resident 1’s escort when she notified Ms. Richardson at approximately 3:30 p.m. that she had not yet arrived at the doctor’s office, or at the latest by 4:40 p.m.,Progress notes from September 4, 2017 written by DON Shugars indicate AW called at 4:40 p.m. P. Ex. 37 at 1. Shugars and Oneal later reported to the surveyors that they spoke with AW “no later than 5:00 p.m.” CMS Ex. 14 at 10; CMS Ex. 15 at 10. Oneal herself declared she walked by DON Shugars speaking on the phone at approximately 4:30 p.m., spoke with Nurse Hill, checked to see if Resident 1 was in his room, and then spoke to AW. P. Ex. 6 at 1-2. It is reasonable to conclude Oneal spoke with AW at approximately 4:40 p.m. by which time AW notified both DON Shugars and Director Oneal that she still had not arrived at the doctor’s office due to a car breakdown.  CMS Post-hearing Br. at 11-12.  Petitioner responds that once its staff “prudently confirmed” AW would meet Resident 1 at his appointment, it had met its obligation to provide him adequate supervision as AW had, in the past, demonstrated sufficient reliability to be a “responsible party” by visiting Resident 1, bringing him food, and accompanying him to other doctor’s appointments.  P. Post-hearing Br. at 12-13.

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Petitioner’s claim that it adequately supervised Resident 1 during his time outside the facility because it could not have foreseen AW’s failure to meet him is without merit.  It is frankly absurd to claim an event is unforeseeable after receiving notice of it.  Once Petitioner’s staff became aware of the circumstances that delayed AW’s arrival at Resident 1’s appointment, leaving him unsupervised, the facility should have taken action to ensure the resident’s safe return.

It is an open question whether Petitioner’s obligation to provide further assistance to Resident 1 became evident at 3:30 p.m., when AW first notified the facility she had not arrived at the doctor’s office.  Assuming Resident 1’s appointment started promptly at 3:00 p.m., a more cautious facility might have been concerned that the resident’s escort had still not arrived 30 minutes later.  But even if a 30-minute delay in AW’s arrival was insufficient to alert the facility to take action, Petitioner chose to do nothing when AW notified Director Oneal and DON Shugars at 4:40 p.m. that she still had not arrived, nearly two hours after Resident 1’s scheduled appointment. No prudent facility would have assumed Resident 1 was still undergoing clinical evaluation at that point.

Once Petitioner became aware that the plan it had established earlier in the day for Resident 1’s safe return to the facility had been upended by AW’s transportation issues, the facility was obligated take action to provide adequate supervision.  Eastwood Convalescent Ctr., DAB No. 2088 (2007) at 8-9.Like here, the circumstances under which the resident in Eastwood was supposed to return from an offsite medical appointment changed, and the facility’s failure to take action despite knowing of those changed circumstances resulted in a deficiency finding. The resident in Eastwood was transported by facility van for a dialysis appointment. DAB No. 2088 at 6. Her spouse, who met her at the appointment, prevented her from taking the return trip to the facility and advised the van driver he would return her in an hour and a half. Id. The van driver notified a facility administrator, who permitted this change. The resident fell out her wheelchair and was hospitalized. Id. at 9. The facility took no action when the resident did not return in the timeframe indicated by her spouse. The Board found this failure to take action sufficient to affirm the findings of deficiency and immediate jeopardy under the regulations. Id.  As one staff member observed, the doctor’s office was only ten minutes away from the facility.  P. Ex. 19 ¶ 4.  Resident 1 tragically spent over 40 minutes after the end of his doctor’s appointment at the office, until 5:41 p.m., when he left unsupervised and eventually died.  CMS Ex. 2 at 2, 5; CMS Ex. 11.Petitioner contends that AW was “mere minutes” from the doctor’s office and that any staff member sent by Petitioner “likely would have arrived after [the resident] had already exited the building.” P. Pre-hearing Br. at 17. This claim, to put it mildly, lacks foundation. The facility had no basis to conclude how long it would take AW to arrive or even that she would. It could have easily intercepted Resident 1 in the 40-minute window after his appointment concluded and before he left the physician’s office on his own.  Upon being notified by AW at 5:00 p.m. that she had car trouble and had still not arrived, facility staff knew Resident 1 was alone and unaccompanied offsite well after his scheduled offsite appointment.  Petitioner needed only to send someone a short distance to ensure Resident 1’s safe return.  At the very least, after speaking with AW at

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4:40 p.m., facility staff could have called the doctor’s office and inquired after Resident 1’s whereabouts and condition.  As Nurse Hill observed, this simple measure might have averted Resident 1’s demise.  CMS Ex. 14 ¶ 11; CMS Ex. 15 ¶ 11.

The facility instead did nothing.  Even by 7:00 p.m., when the previous shift informed the incoming shift that Resident 1 had still not returned from his appointment, Petitioner’s staff bizarrely took no action.  P. Ex. 3 ¶¶ 5-6; P. Ex. 14 ¶¶ 4-5; CMS Ex. 3 at 9, 19; CMS Ex. 9 at 1.  It was not until 9:00 p.m., approximately six hours after Resident 1 had left the facility for his appointment, and four hours after receiving certain notice he was unaccompanied offsite, that the facility began to inquire about Resident 1’s whereabouts.  P. Ex. 3 ¶¶ 5-6; P. Ex. 14 ¶¶ 4-5; CMS Ex. 3 at 9, 19; CMS Ex. 9 at 1; see also P. Ex. 9 ¶¶ 9, 11-16.  The lack of response or concern by the facility for Resident 1 is egregious.  Contrary to Petitioner’s arguments before me, the negative consequences of leaving Resident 1 unattended outside the facility for an extended period of time appear altogether foreseeable.

Petitioner seeks to shift blame for the tragic outcome here to both Resident 1’s girlfriend and the doctor’s office, claiming both parties should have kept Petitioner better apprised of Resident 1’s condition while out of the facility.  P. Pre-hearing Br. at 16-17.  Neither effort is persuasive.  AW made considerable efforts to keep Petitioner apprised of her difficulties in reaching the office where Resident 1’s appointment took place.  The record establishes Petitioner’s staff came into certain knowledge at around 4:40 p.m. that AW had transportation issues and had still not arrived at an appointment scheduled to begin at 3:00 p.m.  AW reported that she repeatedly called the facility to report the automotive break-down that delayed her; she also posted messages on Facebook and begged friends to pick her up so she could meet Resident 1.  CMS Ex. 15 at ¶ 12.  The facility’s effort to blame AW for not providing adequate notice of her inability to meet Resident 1 at his offsite appointment has no merit.  It is clear AW, at least, clearly foresaw the danger of leaving Resident 1 without accompaniment outside the facility.  Petitioner cannot expect to avoid liability where it demonstrates less ability to foresee dangers to a resident than the resident’s untrained friends and family.

Petitioner’s effort to blame the PA’s office for failing to inform the facility that Resident 1 was unsupervised is equally unpersuasive.  Petitioner asserts it is not responsible for accidents or hazards in an environment controlled by another health care provider and that making it “responsible for the missteps of others would lead to inane results.”  P. Pre-hearing Br. at 17.  But the circumstance here is not the straw man conjured by Petitioner.  Resident 1 did not have an accident or come to harm at the physician’s office; instead, he was left unsupervised for so long after the appointment ended that he wandered away and eventually died.  Petitioner claims the physician’s office should have

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prevented Resident 1 from leaving after his appointment, see id., but cites no rule or regulation that imposes such an obligation.It is true that in an ideal circumstance, the PA or his staff might have observed Resident 1 was unaccompanied and taken steps to confirm he had means to safely return to the facility, but Petitioner still bore the primary responsibility to provide adequate supervision to Resident 1 in order to keep him reasonably safe from hazards and accidents.

Ultimately, once Petitioner admitted Resident 1 and began accepting payments from the government to provide him skilled nursing care and services, it was the facility’s affirmative obligation – not the resident’s friends, family members, taxi drivers, or third-party treaters – to take steps to ensure he could safely leave the facility for medical appointments and return.  As CMS aptly observed, Petitioner assumed Resident 1’s safety; it did not take reasonable steps to ensure it.  CMS Post-hearing Br. at 18.  For the foregoing reasons, I find Petitioner did not substantially comply with the requirements of 42 C.F.R. § 483.25(d), Tag F323, to provide adequate supervision to Resident 1.

3. Petitioner did not substantially comply with 42 C.F.R. § 483.10(g)(14), Tag F157. 

42 C.F.R. § 483.10(g)(14)(i) requires a facility to “immediately inform a resident; consult with a resident’s physician; and notify, consistent with his or her authority, the resident representative(s)” of an accident involving the resident resulting in injury with potential for requiring physician involvement, a significant change in the resident’s status (deterioration in resident health, mental, or psychosocial status) in either life‑threatening conditions or clinical complications, or the need to alter treatment significantly.  The facility must also record and periodically update the address and phone number of a resident’s representatives.  42 C.F.R. § 483.10(g)(14)(iv).

CMS contends Petitioner did not substantially comply with this reporting obligation when it failed to fully and immediately notify Resident 1’s father, his “resident representative,” of the change in the resident’s health condition requiring offsite medical consultation or, alternately, of his disappearance following that appointment.  CMS Post-hearing Br. at 25-29.  The parties dispute the identification of Resident 1’s father as his “resident representative” within the meaning of 42 C.F.R. § 483.10(g)(14).  CMS argues that the regulations limit a resident’s representative to either an individual chosen by the resident or a person authorized under federal or state law to act for the resident to support decision-making, access resident personal information, manage finances, or receive notifications.  CMS Post-hearing Br. at 25, citing 42 C.F.R. § 483.5.  Since Resident 1 lacked the capacity to identify someone, CMS explains that Kentucky law establishes an order of priority to identify a “responsible party” for patients who lack capacity that identifies Resident 1’s father as the appropriate party to be so designated.  CMS Post-hearing Br. at 25, citing Ky. Rev. Stat. § 311.631(1)(e).

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Petitioner responds that it avoids a deficiency finding under this regulation either because Resident 1’s offsite appointment did not require reporting to a resident representative or because the facility appropriately treated AW as Resident 1’s representative for reporting purposes.  P. Post-hearing Br. at 5-6.Petitioner also claims it could not have known to comply with 42 C.F.R. § 483.5 because CMS only updated guidance to define “resident representative” consistent with the regulatory definition after Resident 1 died. P. Post-hearing Br. at 3, quoting State Operations Manual (SOM) at 11 (Rev. 173, eff. Nov. 28, 2017). This argument makes little sense. Skilled nursing facilities are obliged to comply with the regulations, not guidance published by CMS for state surveyors. The obligation to comply with the Secretary’s regulations necessarily includes an obligation to be familiar with them.  Petitioner otherwise contends that the face sheet that accompanied Resident 1 on admission does not explicitly identify the resident’s father as his resident representative or responsible party; as such, the facility reasonably determined to share information with AW, who was actively involved in the resident’s care and to whom Resident 1’s father had directed the facility to share information about the resident.  Id. at 3-4.

Petitioner’s arguments are ultimately unpersuasive.  First, I agree with Petitioner that the facility’s regulatory obligation to notify the resident’s representative of a “significant change” did not occur because he was scheduled to visit a doctor outside the facility.  CMS claims deterioration is evident from the fact that Resident 1 required “medical consultation and possible paracentesis for his ascites. . . .”  CMS Post-hearing Br. at 26.  But the mere need to visit a practitioner offsite for consultation and possible treatment does necessarily signal deterioration or a significant change in condition.  Resident 1 was admitted in part to treat him for ascites, which would on occasion require drainage by paracentesis.  P. Ex. 38; P. Ex. 40; CMS Ex. 3 at 1; CMS Ex. 6 at 22-23; CMS Ex. 9 at 37.  The need to conduct this procedure does not in itself suggest a change in condition.  Finally, Resident 1’s appointment for offsite evaluation was actually rescheduled from an earlier date, which does not suggest urgency that might reflect deterioration.The day after Resident 1 missed his first appointment, he did require emergent treatment – “stat paracentesis” – at a hospital. That incident more likely gave rise to an obligation to contact Resident 1’s father. But according to Resident 1’s father, Petitioner failed to do so. CMS Ex. 14 ¶ 16.

But allowing that Petitioner did not need to notify Resident 1’s father of his offsite medical consultation (though it certainly would have been prudent to do so),The parties dispute whether Petitioner in fact notified Resident 1’s father of his son’s offsite medical appointment. CMS Post-hearing Br. at 26 n.18; P. Post-hearing Br. at 5. CMS appears to concede Resident 1’s father was aware of the appointment, but nevertheless argues Petitioner’s notice to him was still deficient because he was not made aware of the nature or significance of the appointment. CMS Post-hearing Br. at 26 n.18. I need not resolve this issue because as I explain herein, Petitioner’s failure to notify Resident 1’s father of the resident’s subsequent failure to return from the appointment and disappearance gave rise to a deficiency under the regulations.

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Petitioner’s reporting obligation was triggered when it became aware Resident 1 was unsupervised and missing.  As I have already discussed, the facility became aware the resident was not adequately supervised at around 4:40 p.m., knew he had not returned by 7:00 p.m., and knew he was altogether missing by 9:00 p.m.  Reasonable minds may differ as to when precisely Petitioner should have notified Resident 1’s father, but here, Petitioner did not contact Resident 1’s father at all.  Instead, Resident 1’s father learned from AW that his son was missing at approximately 11:30 p.m., hours after the facility became aware of that fact.  CMS Ex. 14 ¶ 16; CMS Ex. 15 ¶ 16.  Petitioner’s failure to report Resident 1’s missing status to his father on August 31, 2017 gave rise to a deficiency under 42 C.F.R. § 483.10(g)(14).

Petitioner otherwise claims that it met the regulatory reporting requirement by sharing information with AW, who was better situated to act as a “resident’s representative.”  P. Post-hearing Br. at 5-6.  Putting aside the fact that the applicable state and federal regulations do not give Petitioner the authority to designate a resident’s representative, the facility’s claim fails because it treated Resident 1’s father as his resident representative by consistently contacting him concerning his son’s condition.  On admission, Petitioner’s staff contacted the resident’s father for “verbal consent to treat [which Resident 1] was not able to provide, and explained that we needed his power of attorney paperwork.”  P. Ex. 13 ¶ 5.  On August 4, 2017, after Resident 1 fell in his room, a facility nurse made multiple notification calls to Resident 1’s father.  CMS Ex. 9 at 35.  When the resident fell again on August 6, 2017, facility staff notified Resident 1’s father, identified in the clinical notes as “Family/Responsible Party.”  Id. at 34.  Finally, nurse-to-nurse transfer notes dated August 1, 2017 identify Resident 1’s father as his next of kin with POA, and admonished Resident 1’s girlfriend “to not make medical . . . .”  P. Ex. 40 at 1.

Petitioner’s MDS Coordinator and Medical Records representative did document verbal consent from Resident 1’s father on August 8, 2017 to disclose “information regarding [Resident 1] to [AW]” and that he requested the facility discuss the resident’s care conference with AW.The fact that the facility thought it necessary to procure permission from Resident 1’s father to allow AW to access his son’s treatment information tends to demonstrate it thought Resident 1’s father was his true representative, not AW.  P. Ex. 39 at 1; see also P. Ex. 9 ¶ 2.  This does not amount to notice from Resident 1’s father that he did not wish to continue to act as Resident 1’s resident representative.  Resident 1’s father in fact stated he did not intend to give AW control or “say-so” over his son’s medical care.  CMS Ex. 14 ¶ 16.  At best, Resident 1’s father permitted Petitioner’s staff to discuss Resident 1’s medical condition with AW, which privacy regulations would otherwise prohibit.  But nothing in the record, including Petitioner’s behavior, suggests Resident 1’s father ceded his role as resident representative to AW.  For these reasons, I find that Petitioner did not substantially comply with 42 C.F.R. § 483.10(g)(14).

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4. Petitioner did not substantially comply with 42 C.F.R. § 483.21(b)(3)(ii), Tag F282.

CMS determined that Petitioner did not substantially comply with the requirement to effectuate Resident 1’s care plan.  CMS Post‑hearing Br. at 20-24.  The pertinent regulation states the following:

(b) Comprehensive care plans.  (1) The facility must develop and implement a comprehensive person-centered care plan for each resident . . . that includes measurable objectives and timeframes to meet a resident’s medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment.

****

(3) The services provided or arranged by the facility, as outlined by the comprehensive care plan, must –

****

(ii) Be provided by qualified persons in accordance with each resident’s written plan of care.

42 C.F.R. § 483.21(b)(3)(ii).

Here, CMS argues Resident 1’s care plan required the facility to provide “careful monitoring and observation” of the resident.  CMS Post-hearing Br. at 20.  This included ongoing monitoring of Resident 1’s mental status and physical symptoms, as well as providing interventions to minimize the risk of harm to Resident 1, including provision of assistance, cuing, reorientation, and supervision as needed.  Id. at 21.  CMS contends Petitioner’s failure to adequately supervise Resident 1 during his offsite appointment caused the facility to fail to provide adequate monitoring and assistance required by the care plan.  Id. (“[e]very one of Resident #1’s care-planned medical and physical needs were unmet by Petitioner during the 48-hour duration of Resident #1’s disappearance and eventual death.”).

Petitioner asserts it provided adequate supervision, as contemplated by the care plan, and thus cannot be held accountable for its inability to provide monitoring and assistance

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after Resident 1 failed to return to the facility.  P. Post-hearing Br. at 7-8.Petitioner also claimed Resident 1’s care plan was inaccurate as it did not capture his recent “significant” improvements. P. Pre-hearing Br. at 9-13. To the extent testimony from Petitioner’s staff supports this notion, I find it incredible as it is undermined by the facility’s contemporaneous clinical documents, discussed herein supra at 12-13. In any case, if Petitioner genuinely believed Resident 1’s condition had improved to the point that his care plan was inaccurate, it should have generated a new one. Instead, the surveyors recorded statements from facility staff confirming no new care plan was being developed for Resident 1 at the time of his death. CMS Ex. 14 ¶ 18; CMS Ex. 15 ¶ 18.  In essence, the parties dispute whether Petitioner was responsible for the fact that Resident 1 disappeared during his offsite appointment, thus creating the circumstance that precluded Petitioner from providing the level of care demanded by Resident 1’s care plan.  As I have explained in considerable detail discussing the deficiency arising under Tag F323, Petitioner failed to adequately supervise Resident 1 when he left the facility.  As such, the facility bears the blame for the consequences of failing to follow Resident 1’s care plan after he disappeared.

Those consequences were significant.  During his 48-hour absence Resident 1 missed at least two daily insulin injections (CMS Ex. 5 at 4; CMS Ex. 6 at 32) and two different medications to control his hypertension (CMS Ex. 5 at 4-5).  Failing to provide the latter medications appears particularly significant here, as the death certificate submitted by Petitioner indicated Resident 1 died of hypertensive cardiovascular disease.  P. Ex. 20.  Ultimately, by failing to provide adequate supervision for Resident 1, Petitioner created the circumstance – the resident’s disappearance – which prevented it from following the resident’s care plan.  Venetian Gardens, DAB No. 2286 (2009) at 20-21, citing Eastwood, DAB No. 2088 (holding “a facility should be aware of when a resident is expected to be returned to the facility and consider factors that would impact the resident’s health and safety when away, such as the resident’s need for medication.”).  I sustain the deficiency finding under Tag F282.

5. CMS’s determination of immediate jeopardy is not clearly erroneous.

Petitioner presents no argument that CMS’s determination of immediate jeopardy was clearly erroneous.  42 C.F.R. § 498.60(c)(2).  Immediate jeopardy is defined, in part, as noncompliance that “has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.  The record before me demonstrates non-compliance by Petitioner that meets this standard.  I affirm CMS’s determination of immediate jeopardy.

6. The duration of the CMP is reasonable.

CMS imposed a CMP of $6,394 per day from August 31, 2017 through September 10, 2017.  CMS Ex. 13 at 2.  Petitioner contends that if I do not find it in substantial

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compliance, the CMP was “excessive” and violates 42 C.F.R. § 488.438.  P. Post-hearing Br. at 14.  Petitioner argues that, at most, it was not in substantial compliance on one day, August 31, 2017, as Resident 1 “discharged from the facility” on that day.  Id.

Petitioner’s claim is without merit.  The facility bears the burden of proving it achieved substantial compliance on a date earlier than determined by CMS.  Brier Oak Terrace Care Ctr., DAB No. 1798 at 8-9 (2001); 42 C.F.R. § 488.454(e).  Here, Petitioner itself alleged it had not returned to substantial compliance until September 11, 2017.  CMS Ex. 4 at 21-25.  Nothing in the record before me rebuts Petitioner’s alleged date of return to substantial compliance.  The duration of the CMP imposed by CMS is therefore appropriate.  

7. The $6,394 per day CMP amount selected by CMS is reasonable.

CMS may impose CMPs on a facility “for either the number of days a facility is not in substantial compliance . . . or for each instance that a facility is not in substantial compliance.”  42 C.F.R. § 488.430(a).  Even one instance of noncompliance is sufficient to impose CMPs on a facility.  42 U.S.C. § 1395i-3(h)(2)(B)(i)-(ii), (h)(3); 42 C.F.R. § 488.430(a).

In determining the reasonableness of the CMP amount imposed by CMS, I look to the factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors include the seriousness of the deficiency and the facility’s compliance history, financial condition, and degree of culpability.  42 C.F.R. §§ 488.438(f), 488.404.  Unless a facility contends that a particular regulatory factor does not support the CMP amount that CMS imposed, I must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).

Petitioner does not attempt to argue application of the regulatory factors does not support the CMP amount proposed by CMS, but instead broadly claims the proposed CMP is excessive in light of the factors in 42 C.F.R. § 488.438.  P. Post-hearing Br. at 14.  While I could uphold the CMP amount based solely on Petitioner’s failure to argue the improper application of any of the regulatory factors, Coquina Ctr., DAB No. 1860 at 32, I have nevertheless taken those factors into consideration and determine the CMP is reasonable.

First, as CMS points out, the $6,394 per-day CMP amount selected by CMS is the minimum amount available in the range of CMPs available for immediate jeopardy violations in 2017.  45 C.F.R. § 102.3 (2017).  It is thus per se reasonable.  Next, neither party argues that compliance history or financial condition are factors affecting the penalty amount.

Turning to the remaining factors, I find Petitioner’s noncompliance was very serious.  Resident 1 was an individual with a host of severe mental and physical impairments that

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put him at high risk for falls and led facility rehabilitation specialists to conclude he needed indefinite supervision for his safety.  Petitioner’s staff left this vulnerable resident alone in its lobby and relied on a taxi driver to take him alone to an appointment where it hoped his girlfriend, who did not have a car, would meet him.  Even after several instances where a more prudent facility would have intervened and made an effort to ensure Resident 1’s safe return, Petitioner’s staff did nothing.  They did not contact the resident’s representative.  They ignored numerous communications from the individual they deemed to be a responsible party and the resident’s representative, who notified facility staff she was not at the appointment, leaving Resident 1 unsupervised offsite.  Resident 1 remained unaccompanied throughout his visit until he left the premises alone, close to three hours later.  He was not seen alive again.  The facility’s noncompliance substantially contributed to this tragic outcome.

I must also consider culpability, which the applicable regulation defines to include “neglect, indifference, or disregard for resident care, comfort, or safety.”  42 C.F.R. § 488.438(f)(4).  I do not believe Petitioner intended neglect, indifference, or disregard for its residents.  Nevertheless, Petitioner’s culpability in the death of Resident 1 is significant.  Its employees let Resident 1 leave the facility without escort to his offsite appointment.  They became aware he remained unaccompanied at 3:30 p.m. on August 31, 2017.  By 4:40 p.m. they knew his girlfriend had car trouble and still had not met him.  They received conclusive notice by 7:00 p.m. his girlfriend had never met him.  Despite these multiple instances of warning, Petitioner did not initiate an investigation into Resident 1’s disappearance until approximately 9:00 p.m.  Petitioner’s failure to provide adequate supervision to a resident with significant cognitive and physical limitations foreseeably resulted in his untimely death.  I find Petitioner highly culpable in this case.

For these reasons, I sustain CMS’s imposition of a $6,304 per day CMP for the period August 31, 2017, through September 10, 2017, for a total CMP of $70,334.