Coral Reef Subacute Care Center, DAB CR6237 (2023)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose the following remedies against Petitioner, Coral Reef Subacute Care Center, LLC: 

• Civil money penalties of $10,145 for each day of a period that began on October 2, 2021 and that ran through October 25, 2021; and
• Civil money penalties of $225 for each day of a period that began on October 26, 2021 and that ran through November 11, 2021. 

I. Background

I held a hearing on November 8, 2022 at which I received into evidence exhibits from CMS, identified as CMS Ex. 1-CMS Ex. 35, and from Petitioner, identified as P. Ex. 1-P. Ex. 25. 

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II. Issues, Findings of Fact and Conclusions of Law

1. Issues

The issues are whether Petitioner failed to comply with Medicare participation requirements; whether CMS’s determination of immediate jeopardy level noncompliance was clearly erroneous; and whether CMS’s remedy determinations are reasonable. 

2. Findings of Fact and Conclusions of Law

This case arises from the care that Petitioner’s staff provided to a resident, identified as R1.  Petitioner admitted him to its facility on July 14, 2021, with the resident suffering from a variety of medical and mental problems, including a recurring urinary tract infection, an anxiety disorder, and depression.  CMS Ex. 7; CMS Ex. 8 at 28-30.  His stay at Petitioner’s facility was interrupted by hospitalization at the end of July and the first part of August 2021 for a urinary tract infection and accompanying pain.  The resident was briefly hospitalized again in late August 2021, having experienced a recurrence of his urinary tract infection and pain.  CMS Ex. 18.  He returned to Petitioner’s facility after this second hospitalization.  P. Ex. 4.  On October 2, 2021, the resident committed suicide.  CMS Ex. 24 at 3-4. 

CMS alleges that Petitioner failed to provide R1 with the care that it was required to provide as a Medicare-participating skilled nursing facility.  CMS’s allegations of Petitioner’s noncompliance, Petitioner’s arguments in response, and the evidence all relate to a fundamental question:  what is a Medicare-participating skilled nursing facility’s duty to its residents? 

No skilled nursing facility is required to participate in Medicare.  Participation is optional.  But if a facility opts to participate, it must comply with the participation requirements established by statute and implementing regulations.  The bottom line is this:  a skilled nursing facility is much more than a residence for very sick and infirm individuals.  Medicare compensates a skilled nursing facility only for services that preserve and enhance residents’ health, well-being, and quality of life.  That requirement is the basis for every service that a facility provides to its residents.  A facility that fails to provide such services is deficient and subject to remedies for noncompliance. 

Section 1819 of the Social Security Act (Act) states the bedrock principles that govern a skilled nursing facility’s participation in Medicare.  The facility must maintain and enhance the quality of life of each of its residents.  Act § 1819(b)(1)(A).  “Enhance” means just that.  A facility must take all reasonable measures to improve a resident’s condition.  The facility must comprehensively assess each of its residents so that it may develop and implement a plan of care for that resident that directs the resident’s care.  Act § 1819(b)(3)(A).  It must provide each of its residents with services so that the

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resident attains or maintains the highest practicable physical, mental, and psychosocial well-being in accordance with that resident’s plan of care.  Act § 1819(b)(2). 

The regulations that underpin CMS’s noncompliance allegations implement the statutory responsibilities of Medicare-participating skilled nursing facilities.  42 C.F.R. Parts 483, 488. 

Implementing regulations that are at issue here and that CMS alleges that Petitioner contravened prohibit a skilled nursing facility from neglecting to provide care to its residents, with “neglect” being defined as a failure to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.  42 C.F.R. §§ 483.12, 488.301.  They require the facility to develop and implement a comprehensive care plan for each resident that includes measurable objectives and time frames to meet a resident’s medical, nursing, and psychosocial needs that are identified in a comprehensive assessment of the resident’s condition.  42 C.F.R. § 483.21(b)(1).  The regulations also require that based on the comprehensive assessment of a resident, the facility must ensure that a resident who displays or is diagnosed with mental disorder or psychosocial adjustment difficulty, or who has a history of trauma and/or post-traumatic stress disorder, receives appropriate treatment and services to correct the assessed problem or to attain the highest practicable mental and psychosocial well-being.  42 C.F.R. § 483.40(b)(1). 

CMS asserts that Petitioner’s noncompliance with these three regulations was so severe as to put residents at immediate jeopardy.  “Immediate jeopardy” means noncompliance that causes, or is likely to cause, residents to suffer serious injury, harm, impairment, or death.  42 C.F.R. § 488.301.¹    

The evidence unequivocally supports CMS’s allegations of immediate jeopardy level noncompliance.  Petitioner failed consistently to address R1’s almost constant fear and panic.  It failed to assess whether medications were ameliorating the resident’s mental issues or indeed, whether those medications even benefitted the resident.  It failed to bring the resident’s mental problems to the attention of the resident’s treating psychiatrist.  It failed to adjust or re-write R1’s plan of care to address the resident’s unabated psychological issues.  It failed to ensure that the resident received a timely pain management consultation, determined by Petitioner’s staff to be necessary due to the resident’s episodes of severe pain.

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Petitioner’s defense hinges on its contention that its role as a skilled nursing facility is essentially that of maintenance.  Its central argument is that a facility does its job so long as a resident’s chronic condition does not deteriorate while under the facility’s care.  Petitioner argues that its duty is to assure that those conditions do not get worse. 

That argument is incorrect, and it does not justify the deficient care that Petitioner provided.  It stands in defiance of the Act and implementing regulations’ requirements that skilled nursing facilities take all reasonable measures, not just to maintain, but to enhance a resident’s quality of life. 

Petitioner asserts additionally that CMS’s allegations of noncompliance in this case emanate from surveyors’ “subjective judgment” and are therefore neither grounded in specific regulatory language nor sufficiently clear for Petitioner to have had notice of how it violated the regulations.  It contends that CMS did not give it specific notice of its alleged deficiencies covered by regulations.  Instead, according to Petitioner, CMS ginned up allegations of noncompliance on an ad hoc basis.  Petitioner’s Prehearing Brief at 23 (citing Kisor v. Wilkie,139 S. Ct. 2400 (2019)).  

But Petitioner has not identified anything in CMS’s noncompliance allegations that is ad hoc or subjective and not firmly grounded in the Act’s and regulations’ specific language.  The allegations made by CMS, and argued consistently by it, are explicit.  They identify the regulations that Petitioner controverted and why Petitioner’s care was deficient.  I find no notice issue here. 

CMS, pursuant to my order, filed a lengthy pre-hearing brief that laid out its allegations precisely.  It filed its exhibits along with its brief, including the sworn written direct testimony of its witnesses.  None of the allegations that CMS continues to assert exceed the boundaries of its pre-hearing brief and CMS has not relied on evidence other than that which it filed previously.  Petitioner had ample time within which to prepare its defenses and respond to CMS’s specific allegations. 

I do not address whether Petitioner’s neglect and other deficient care caused R1 to commit suicide.  It is unnecessary that I do so to find immediate jeopardy level noncompliance.  That said, Petitioner’s staff allowed the resident to suffer from acute mental anguish for a protracted period, a period that culminated with the resident’s suicide. 

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1. Failure to Assess and Treat R1’s Psychological Problems

R1 suffered from nearly continuous panic and fear during his stay at Petitioner’s facility.  The record shows overwhelmingly that Petitioner’s staff neglected to address this problem.  Rather, the staff shrugged it off as merely being part of the resident’s baseline condition.  That indifference constitutes neglect and an obvious failure by Petitioner and its staff to meet their statutory and regulatory responsibility to provide skilled nursing care to R1. 

Petitioner’s staff identified R1 to be suffering from anxiety as of his admission to the facility in July 2021.  CMS Ex. 8 at 30.  The staff prepared a plan of care for the resident that identified his anxiety.  CMS Ex. 11 at 9-10.  It stated that the resident would “be able to display appropriate response to situations by next review date” in November 2021.  Id. at 10.  The plan listed interventions that were intended to address the resident’s anxiety.  Id. 

These goals and objectives fell by the wayside in the ensuing months. 

Between mid-July and the resident’s suicide on October 2, 2021, staff reported on more than 40 occasions that R1 was experiencing episodes of “afraid/panic” – nine episodes in the second half of July, 15 in August, 17 in September, and on both the first and second day of October.  The resident exhibited fear and panic on the day that he committed suicide, October 2, 2021.  CMS Ex. 12 at 1, 3, 4, 6-9.  There is nothing in the record that shows that staff did anything to address these near-constant episodes of fear and panic aside from administering medication.  There are no written discussions about what was causing these episodes, no assessments of the episodes’ severity, no discussions of whether the interventions listed in the plan of care were implemented and whether they worked, no discussions of what interventions other than those stated in the plan of care might benefit the resident, no discussions of whether the plan of care needed to be augmented or modified, and no discussions of whether the resident’s medication needed to be increased, decreased, or changed.  Nor is there anything to show that staff brought these episodes of fear and panic to the attention of the resident’s psychiatrist. 

Indeed, the resident’s psychiatrist stated in an interview that no one had brought to his attention the resident’s episodes of fear and panic.  CMS Ex. 3 at 6-7.  He acknowledged that he’d only examined R1 on a single occasion in August 2021.  He averred that he would have ordered measures to assist R1 had he known about these fear and panic episodes, including possibly, changing the resident’s medication.  Id. at 7.² 

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Petitioner offered no evidence to prove that it did more for the resident than what I have described.  Instead, it contends that the surveyors who identified deficient care at Petitioner’s facility misunderstood or misinterpreted the facility’s records or the statements that staff and other caregivers made when the surveyors interviewed them.  E.g., Petitioner’s Posthearing Brief at 4.  Petitioner contends that its staff were entitled to rely on an assessment by the resident’s psychiatrist, showing that as of August 31, 2021, the resident’s depression was in “full remission.”  Id. at 13-14.  Petitioner argues also that the resident suffered only from “mild” depression and that the resident’s care plan was appropriate.  Id. at 14. 

As regards the resident’s episodes of fear and panic, Petitioner contends, in an evident effort to minimize the evidentiary significance of its own records, that there is no evidence in the record – other than the many notations that R1 was experiencing panic and fear – that these episodes were occurring.  Petitioner’s Posthearing Brief at 15.  According to Petitioner, relying on its records as proof of the resident’s anguished mental state is a misinterpretation that reads far too much into these records’ significance.  Id. at 15-16.  Attempting to diminish the gravity of R1’s repeated episodes of panic and fear, Petitioner contends that these episodes:  “related only to the Resident’s fixation on, and repeated questions to staff about, his medical status . . . .” Id. at 19 (emphasis in original). 

Petitioner argues that, because the resident’s episodes of fear and panic were chronic, they required no intervention from Petitioner’s staff other than what had already been planned: 

[I]f, as was the case here, there was no new behavior beyond that which already had been identified and already was being addressed – that is, the Resident simply continued repetitively to ask nurses about his medical condition – they would not expect that baseline behavior to be documented or reported to a physician because it is not a change in condition, and because there already is a care planned intervention for it, including administration of routine anti-anxiety medication. 

Petitioner’s Posthearing Brief at 20 (emphasis in original).  Petitioner asserts that the resident’s repetitive expressions of fear and panic merely showed a “baseline fixation” and not “any new or escalating behaviors . . . .” Id. at 21.  Consequently, there was no need for the staff to take any measures to address them beyond administering medication that had been previously prescribed for anxiety.  In other words, according to Petitioner, its staff was not required to do additional assessments of the resident, record which interventions were being used and whether they were working, consider modifying the

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resident’s plan of care, or discuss the resident’s near-daily expressions of fear and panic because they had become routine. 

Petitioner argues additionally that CMS seeks to impose an unreasonable burden on it, one that finds no support in the regulations:  that is, that Petitioner has a responsibility to “cure” a resident’s manifestations of mental illness.  Petitioner’s Posthearing Brief at 16.  It contends that it had no duty to attain a cure but that its only duty to the resident was to appropriately identify the signs and manifestations of his mental issues, including any changes, and to follow the resident’s physician’s orders.  Id. 

These arguments are without merit. 

Petitioner’s assertion that CMS expects it to cure its residents’ afflictions is a straw man.³   CMS does not contend that Petitioner has a duty to “cure” a resident’s mental illness.  Regulations do not require cures unless cures can be expected with appropriate care.  What the Act and regulations require – as I have explained – is that a skilled nursing facility do whatever is reasonably necessary for a resident to attain the highest practicable level of functioning.  If, for example, a resident manifests anxiety, then the facility is obligated to attempt to ameliorate it.  If interventions and medication aren’t working, then the facility must assess the problem and consider possible additional or new interventions.  It is this requirement that I use to evaluate Petitioner’s care of R1 and not whether Petitioner was required to attempt to, or failed to, cure the resident’s mental problems. 

Petitioner’s claim that surveyors misunderstood, or misinterpreted Petitioner’s records also is a straw man.  The plain and unambiguous language of R1’s treatment records identify Petitioner’s neglect of the resident’s mental condition.  It is Petitioner’s own records that establish that R1 suffered multiple episodes of panic and fear, extending over a period of months.  It is the lack of any response to these documented episodes of panic and fear that show that the staff did not address those episodes. 

That R1 may not have exhibited signs of increased depression does not excuse Petitioner’s staff from responding to his continued episodes of panic and fear.  Those episodes, in and of themselves, demanded an urgent response by the staff even if the resident may not have manifested other signs of increased mental illness. 

Petitioner’s neglect is neither excused nor justified by the psychiatrist’s report of his August 31, 2021 examination of R1.  See CMS Ex. 25.  Although the psychiatrist found that the resident’s depression was in remission as of that date, he made that determination without being apprised of the many episodes of fear and panic manifested by the resident

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prior to the examination.  Furthermore, no one told the psychiatrist about subsequent episodes of fear and panic exhibited by the resident.  CMS Ex. 3 at 6-7.  The psychiatrist therefore lacked information that might have affected his assessment and, as he acknowledges, he might have changed his judgment about the resident and his treatment had he had that information.  Id. at 7.  

Nor is neglect excused by the possibility that the resident’s fear and panic were linked to a fixation on his medical condition.  I note that nothing in the resident’s treatment record supports a finding that this was so.  But, assuming it to be the case, it doesn’t excuse Petitioner’s neglect.  Rather, it simply establishes a cause of the resident’s fear and panic.  Petitioner’s staff was obliged to address that fear and panic whatever may have been the cause. 

Petitioner’s argument that R1’s “baseline” fear and panic merited no special intervention by its staff is remarkably callous.  In effect, Petitioner asserts that the staff could ignore the resident’s near-daily mental anguish because it was a chronic condition and because it didn’t appear to be getting any worse.  That argument minimizes the near-daily emotional distress exhibited by the resident and gives Petitioner a free pass for failing to respond to it.  It defies Petitioner’s responsibilities under the Act and regulations to undertake all reasonable measures to maintain and enhance its residents’ quality of life. 

2. Failure to Address R1’s Episodic Pain

A skilled nursing facility’s duty to address a resident’s pain is the same as its duty to address mental health issues.  The Act and regulations draw no distinction between physical and psychological problems.  The requirement that a skilled nursing facility maintain and enhance each resident’s quality of life, stated at section 1819(b)(1)(A) of the Act, imposes on a participating facility the requirement that the facility take all reasonable measures to address a resident’s pain. 

R1’s pain related most likely to his recurring urinary tract infection.  It was episodic in nature, not constant, and there may have been times when the resident was pain free.  But that doesn’t excuse Petitioner’s staff from assessing the pain episodes, attempting to determine their cause, and developing a strategy for dealing with pain when it occurred.  Staff neglected the resident by failing to assure that he received a timely and thorough pain management consultation. 

The staff knew that R1 experienced episodic and excruciating pain.  Pain was one of the resident’s conditions that the staff identified as early as May 2021, during a previous admission to Petitioner’s facility.  CMS Ex. 10. 

On July 15, 2021, just a day after Petitioner admitted the resident, a physician ordered that the resident have a pain management consultation.  CMS Ex. 14 at 1.

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Petitioner failed to assure that R1 received a timely or thorough pain management consultation.  There is no evidence that the resident received a pain management consultation at any time prior to August 11, 2021.  See P. Ex. 6.  R1 finally saw a physician on that date, 27 days after the order for a pain management consultation.  In the interim the resident experienced pain that was so intense that he called 911 for assistance and was hospitalized.  CMS Ex. 15 at 2-3.  As a measure of the intensity of his pain, the resident was prescribed Toradol for five days after his discharge.  CMS Ex. 16 at 1.  I take notice that Toradol is a nonsteroidal anti-inflammatory drug used to treat moderate to severe pain.  Toradol, DRUGS.COM, https://www.drugs.com/toradol.html (last visited February 14, 2023). 

Petitioner characterizes an August 11 visit by R1 with a physician as a pain management consultation, but the report of that visit doesn’t suggest that it was for that purpose so much as for a general physical exam.  See P. Ex. 6.  The report fails in any meaningful way to address R1’s pain episodes.  It contains no history of the resident’s pain, no description of his complaints of pain, no assessment of his pain, and no treatment orders other than to state that the resident’s pain would be managed by his physician.  See id. 

Whatever the purpose of the August 11 visit may have been, R1 received no benefit from it.  On August 20, 2021, nine days after the alleged consultation, and with no changes whatsoever having been made in the resident’s care plan or medication regime, the resident again called 911 because he was suffering from severe abdominal pain and was again taken to the hospital.  CMS Ex. 15; CMS Ex. 17 at 3.⁴ 

The resident experienced at least one additional episode of pain before he committed suicide.  On September 10, 2021, a nursing progress note stated that R1 had been experiencing pain in his urethra.  CMS Ex. 9 at 12.  Another resident reported to surveyors that in the days before he committed suicide, R1 related that he was in a lot of pain.  CMS Ex. 3 at 12. 

Petitioner’s failure to ensure that R1 received a prompt and thorough pain management consultation falls within the regulations’ definition of neglect, because it is a denial of necessary goods and services to the resident.  42 C.F.R. § 488.301.  Petitioner’s staff knew that the resident was suffering from periodic episodes of severe pain.  Staff knew or should have known that these episodes were likely to recur as the resident’s urinary tract infection recurred.  But staff failed to ensure that the resident received a pain management consultation that they had determined to be necessary.

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Attempting to minimize the significance of the order for a pain management consultation, Petitioner asserts that the order was merely an “admission” order that didn’t require immediate follow up.  Petitioner’s Posthearing Brief at 7-8.  Besides, according to Petitioner, there was no reason to believe that a pain management consultation was immediately necessary, because R1 wasn’t complaining of severe pain when staff ordered the consultation.  Id. 

But the fact is that staff concluded that a pain management consultation was necessary and there is no indication whatsoever in the record that staff believed that the consultation was unimportant or could be delayed for weeks.  It was clear that R1 was experiencing recurrent episodes of severe pain.  Even if he was not experiencing severe pain on the date of his admission to Petitioner’s facility, July 14, 2021, he had experienced such episodes previously and there was no way of knowing if or when they would recur.  In fact, within two weeks of his admission, R1 was hospitalized for severe abdominal pain without the pain management consultation having been conducted. 

Petitioner argues that adjudicating the adequacy of the alleged pain management consultation report is out of bounds because the surveyors who found noncompliance never saw the report and failed to address its adequacy in their own report.  Petitioner’s Posthearing Brief at 8.  However, it was Petitioner who offered this report into evidence and who asserted that it constitutes a comprehensive report of a pain management consultation.  See P. Ex. 6.  By offering the report as proof, Petitioner raised the issue of its contents’ significance.  Deciding the significance of the report is thus fair game. 

Petitioner also contends that its representation of the report as a pain management consultation report must be accepted as CMS offered no expert testimony to attack it.  Petitioner’s Posthearing Brief at 8.  No expert testimony is needed, however, to find what is obvious.  The report is inadequate on its face as a pain management consultation report. 

According to Petitioner, R1’s August 11 physician visit was timely in relation to the resident’s hospitalization at the end of July and during the first week of August 2021.  Petitioner’s Posthearing Brief at 8.  But the pain management consultation wasn’t ordered to deal with the infection that arose in late July.  It was ordered weeks previously, obviously as a way of anticipating and attempting to manage pain episodes that the resident might experience in the future.  The failure to ensure a timely consultation certainly may have caused R1 to experience unnecessary and unnecessarily intense pain. 

Petitioner denies that the resident experienced constant pain, noting that there were encounters between R1 and his physician or his physician’s assistant at which the resident reported no pain.  Petitioner’s Posthearing Brief at 9.  That is true.  But the fact that the resident’s pain was episodic and not continuous does not in any respect diminish or eliminate Petitioner’s responsibility to address R1’s intermittent pain – pain which,

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judging from the resident’s behavior, was at times excruciating.  The order for a pain management consultation was intended to find solutions for the resident’s intermittent pain.  Petitioner’s failure to assure that this order was carried out was neglect even if the resident’s pain was intermittent and not continuous. 

Petitioner argues additionally that the care plan that it developed for R1 addressed the resident’s intermittent pain.  Petitioner’s Posthearing Brief at 9; CMS Ex. 11 at 3, 6.  Effectively, Petitioner asserts that it was not required to make additional assessments or plans.  

This assertion is belied by Petitioner’s staff’s determination that something beyond the care plan, a pain management consultation, was needed to protect R1 and to enhance his care.  That consultation wasn’t ordered as window dressing:  presumably the staff anticipated that there would be timely assessment of the resident’s intermittent pain and that some additional treatment orders might emerge from that assessment.  The fact that the consultation neither occurred timely nor thoroughly (if at all) meant that R1 was denied care that Petitioner’s staff determined to be necessary. 

Petitioner suggests also that R1 may have overly dramatized his complaints of pain.  Focusing on the resident’s August 20, 2021 call to 911, Petitioner contends that the resident may have been confused, perhaps secondary to dementia, and suggests that the call may have been unnecessary.  Petitioner’s Posthearing Brief at 9-10.  But that contention ignores the obvious – on that occasion, Petitioner’s nursing staff reported that the resident was extremely agitated, almost certainly due to pain.  Moreover, the caregivers who examined R1 on that date determined that his condition was so serious as to require hospitalization.⁵ 

3. Failure to Implement R1’s Care Plan

Petitioner’s care plan for R1 included text directing that staff observe and monitor the resident’s anxiety with goals that included enabling the resident to respond appropriately to situations.  CMS Ex. 11 at 9-10.  Meaningful implementation of the care plan should have included written observations by staff of the resident’s condition as well as conclusions about how the resident was coping.  Meaningful implementation would also have included some assessment of the resident’s condition:  was he getting better or worse; was the medication that had been prescribed for the resident effective in

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alleviating his anxiety; were interventions helping the resident; and was something additional or different needed to assist the resident? 

But none of that is present in the resident’s record, except the bare-bones recitation on more than 40 occasions that the resident exhibited fear and panic.  Although Petitioner now contends that the resident’s fear and panic were focused on his medical condition, R1’s treatment records don’t even say that much. 

The failures by Petitioner’s staff to document the resident’s condition, to assess it, to draw conclusions about the resident’s problems and to make recommendations, constitute neglect.  A care plan is not some pro forma document that a facility draws up only to satisfy the technical regulatory requirements of 42 C.F.R. § 483.21(b).  The plan must be meaningful.  And to be meaningful, the plan must be implemented in some meaningful way.  Here, the evidence shows little effort by Petitioner’s staff to implement the plan that they had written to address R1’s anxiety.  His more than 40 episodes of fear and panic were not addressed by Petitioner’s staff. 

In fact, at least one member of Petitioner’s staff wasn’t aware of what R1’s care plan required.  Mariela Urquiza, R.N., one of the nurses assigned to R1 – a nurse who provided care to the resident on three days of the week – averred to a surveyor that she was unaware of the resident’s diagnosis of depression.  CMS Ex. 30 at 32.⁶ 

Petitioner’s response is to argue that CMS and State Agency surveyors misunderstood or misinterpreted Petitioner’s records.  Petitioner’s Posthearing Brief at 4.  It contends that the records show that Petitioner implemented R1’s care plan and addressed the resident’s problems.  According to Petitioner, CMS’s allegations:  “simply misstate the Resident’s chart, not to mention the unanimous statements to the Surveyors by . . . [Petitioner’s] staff during the survey and Petitioner’s witness’ testimony . . . .”⁷ Id. at 7. 

But Petitioner has not identified treatment records that establish that its staff implemented R1’s plan of care to address the resident’s many episodes of fear and panic.  As I have stated, the record is devoid of anything describing these episodes, assessing them, or considering whether previously developed interventions were benefitting the resident. 

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There is no assessment of the efficacy of the resident’s medications and no consideration of whether the episodes of fear and panic should be brought to the attention of the resident’s psychiatrist.  Furthermore, there is nothing in the testimony of any of Petitioner’s witnesses – Jacqueline Jackson, R.N., Christopher Rodriguez, P.A.-C., Griselda Villalta, Natasha Hunte-Zager, and Mariela Urquiza, R.N. – that identifies treatment records that show implementation of the resident’s plan of care.  See P. Ex. 21-P. Ex. 25. 

For example, Ms. Jackson, who is Petitioner’s director of nursing, testified that the resident’s care plan for depression and anxiety was “appropriate.”  P. Ex. 21 at 5.  Additionally, she averred that the resident’s anxiety was “manifested by his fixation on, and repeated questions to staff regarding, his medical status.”  Id. at 4.  These assertions aside, Ms. Jackson says nothing about the resident’s more than 40 episodes of fear and panic. 

As director of nursing, Ms. Jackson would know what efforts Petitioner’s staff made to ameliorate the fear and panic expressed so frequently by R1.  Her silence on the subject speaks volumes.  It reinforces my conclusion that Petitioner’s staff did nothing to address these episodes other than provide the resident with medication previously prescribed. 

4. Immediate Jeopardy

A finding of immediate jeopardy does not require the presence of actual harm to a resident.  All that is required is the likelihood of serious injury, harm, impairment, or death.  42 C.F.R. § 488.301.  Where a deficiency is established and CMS determines the presence of immediate jeopardy, the burden falls on Petitioner to prove that the determination is clearly erroneous.  42 C.F.R. § 498.60(c)(2). 

The evidence in this case amply supports a finding that Petitioner’s noncompliance with 42 C.F.R. §§ 483.12, 483.21(b)(1), and 483.40(b)(1) put residents of Petitioner’s facility at immediate jeopardy.  Unrebutted proof shows that R1 experienced mental anguish on numerous occasions, indeed, nearly every day that he resided at Petitioner’s facility from July 14, 2021, until his suicide on October 2, 2021.  Petitioner did nothing to ameliorate that anguish aside from routinely administering anti-anxiety medication, medication that was clearly inadequate.  That near-daily anguish created at least the likelihood that the resident would suffer serious harm. 

Petitioner has offered no evidence to prove that CMS’s immediate jeopardy determination is clearly erroneous aside from arguing that it complied with participation requirements.  I have addressed those arguments, above. 

At the inception of this decision, I stated that I would not address the issue of whether Petitioner’s deficient conduct led to, or contributed to, R1’s suicide.  It is unnecessary

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that I decide that question because the cause of the resident’s suicide is not a necessary element of my finding that immediate jeopardy level noncompliance occurred.  I note that Petitioner devoted a substantial portion of its pre-hearing brief and some of its post-hearing brief to arguing that the resident’s suicide was neither foreseeable nor caused by Petitioner’s care.  Those arguments play no part in my decision. 

5. Remedies

CMS determined to impose two remedies against Petitioner.  These consist of:  an immediate jeopardy level civil money penalty of $10,145 for each day of a period that began on October 2, 2021 and that continued through October 25, 2021; and a non-immediate jeopardy level civil money penalty of $225 for each day of a period that began on October 26, 2021 and that continued through November 11, 2021. 

These penalty amounts fall within the authorized penalty ranges for immediate jeopardy level and non-immediate jeopardy level penalties, as adjusted for inflation.  42 C.F.R. § 488.438(a)(1)(i), (ii); 45 C.F.R. Part 102.  The amounts are modest when measured against the maximum allowable amount in each range.  The immediate jeopardy level penalty amount, for example, is only about one-half of the maximum allowable amount for such penalties during 2021. 

I sustain the penalties as reasonable. 

Regulations set forth the criteria for evaluating the reasonableness of civil money penalty amounts.  These criteria may include the seriousness of a facility’s noncompliance, its compliance history, its culpability, and its financial condition.  42 C.F.R. §§ 488.438(f)(1)-(4), 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  I find Petitioner’s noncompliance to have been serious, sufficient to justify the immediate jeopardy and non-immediate jeopardy level penalties.  Petitioner’s compliance history provides additional – albeit unnecessary – support for the remedies that CMS determined to impose. 

Petitioner made no effort to describe the intensity of R1’s fear and panic, but the frequency of his episodes surely caused him to experience anguish.  The failure by Petitioner to assure that the resident’s episodes of severe pain were addressed in a thorough pain management assessment created a likelihood that the resident would suffer pain that was either unnecessary or unnecessarily intense. 

The unrebutted evidence shows also that Petitioner has a history of noncompliance including findings of immediate jeopardy level deficiencies.  CMS Ex. 31. 

Petitioner contends that the present immediate jeopardy level penalty amount is the same amount that CMS originally determined to impose premised on now-rescinded

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allegations that Petitioner’s noncompliance caused R1 to commit suicide.  It reasons that the penalty amount should be reduced – perhaps even to a non-immediate jeopardy level amount – because the present allegations are for noncompliance that is less egregious than was previously alleged.  Petitioner’s Posthearing Brief at 24. 

I find that the present determination of the penalty amount stands on its own feet.  There is no need to do a comparative analysis.  The seriousness of Petitioner’s noncompliance, established by the evidence in this case, and its compliance history more than amply support the immediate jeopardy level penalty amount. 

Petitioner did not challenge CMS’s determinations of the non-immediate jeopardy level penalty amount, and the duration of Petitioner’s immediate jeopardy and non-immediate jeopardy level noncompliance. 

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Endnotes

¹  CMS alleges also that Petitioner failed to comply with the requirements of 42 C.F.R. §§ 483.20(g), 483.25, 483.30(b)(1)-(3), 483.35(a)(3), (4), and (c), and 483.75(g)(2)(ii), albeit at a level of noncompliance that does not pose immediate jeopardy for residents.  It is unnecessary for me to address these non-immediate jeopardy noncompliance allegations as immediate jeopardy level noncompliance amply justifies the remedies that CMS determined to impose. 

²  The psychiatrist testified at a dispute resolution hearing conducted prior to the inception of this case.  At that hearing he acknowledged that Petitioner had not notified him of the resident’s unusual behaviors or anxiety and that his understanding was that the resident had not engaged in such behaviors or anxiety.  CMS Ex. 26.  I find that testimony to be consistent with what the psychiatrist related to the surveyor because it reiterates that the psychiatrist was unaware of the resident’s almost daily expressions of fear and panic. 

³  In making its argument, Petitioner’s counsel mischaracterizes the statements that I made in a colloquy that I had with him on the record of the hearing.  Transcript at 25-26. 

⁴  Petitioner contended that its nursing staff called 911 on August 20 on behalf of the resident.  Petitioner’s Posthearing Brief at 11.  However, the nursing note for that date unequivocally states that it was R1 who made the call.  It states further that the resident was in so much pain on that occasion that he was “yelling” and “banging on his bed.”  CMS Ex. 17 at 3. 

⁵  Petitioner’s records show that its staff were sometimes either nonresponsive to the resident’s complaints or failed to register them.  For example, Petitioner’s medication administration record covering the period from August 2021 to R1’s suicide on October 2, 2021, records zero complaints of pain by the resident even though he called 911 on August 20, 2021, due to his pain.  CMS Ex. 20; CMS Ex. 21; CMS Ex. 22. 

⁶  Petitioner offered Ms. Urquiza’s affidavit in its defense.  Ms. Urquiza averred that R1 did not show signs of depression.  P. Ex. 25 at 4.  However, she did not retract nor contradict her statement to the surveyor that she was unaware that the resident had been diagnosed with depression. 

⁷  Petitioner asserts, repeatedly, that CMS counsel’s decision not to cross-examine these witnesses reinforces their credibility.  I disagree.  Sometimes, a decision not to cross-examine may be based on an assessment that the testimony is either not credible on its face or that, if credible, it does not benefit the opposing party.