Briarcliff Health Center, DAB CR6300 (2023)

DECISION

Petitioner, Briarcliff Health Center, is a long-term care facility located in Tyler, Texas, that participates in the Medicare program.

Following two health surveys, completed on January 22, 2021, and February 11, 2021, and a Life Safety Code survey, completed on January 22, 2021, the Centers for Medicare & Medicaid Services determined that the facility was not in substantial compliance with multiple Medicare program requirements.  Based on the February survey findings, CMS imposed civil money penalties (CMPs) of $2,000 per day for 31 days (August 1 through 31, 2020), $350 per day for 30 days (September 1 through 30, 2020), $2,000 per day for 64 days (October 1 through December 3, 2020), and $350 per day for 101 days (December 4, 2020, through March 14, 2021) ($62,000 + $10,500 + $128,000 + $35,350 = $235,850 total).

Initially, Petitioner appealed all of the deficiencies cited during all three surveys.  It subsequently limited its appeal to one deficiency, 42 C.F.R. § 483.25(g)(1)-(3), cited during the February 11 survey.

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The parties have filed cross-motions for summary judgment.  However, I find that this matter may be resolved on the written record, without considering whether the standards for summary judgment are met (discussed below).

For the reasons set forth below, I find that, from August 1, 2020, through March 14, 2021, the facility was not in substantial compliance with Medicare program requirements and that the penalties imposed are reasonable.

Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301.

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys.  Facilities must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a); 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4).

Here, surveyors from the Texas Health and Human Services Commission (state agency) completed the facility’s annual recertification and Life Safety Code surveys on January 22, 2021.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with multiple Medicare requirements, specifically:

January 22, 2021 recertification survey (health).

• 42 C.F.R. § 483.21(b)(3) (Tag F659 – comprehensive care plans:  services provided) cited at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.25(i) (Tag F695 – quality of care:  respiratory care, including tracheostomy care and tracheal suctioning) cited at scope and severity level E (pattern of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);

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• 42 C.F.R. § 483.45(a)(b) (Tag F755 – pharmacy services:  procedures and service consultation) cited at scope and severity level D;
• 42 C.F.R. § 483.60(i)(1)(2) (Tag F812 – food and nutrition services:  food safety) cited at scope and severity level F (widespread substantial noncompliance that causes no harm with the potential for more than minimal harm); and
• 42 C.F.R. § 483.90(d) (Tag F908 – physical environment:  space and equipment) cited at scope and severity level D.

CMS Exs. 1, 5.

January 22, 2021 Life Safety Code survey.  In addition to meeting the health requirements set forth in 42 C.F.R. Subpart B, a facility must meet the provisions of the Life Safety Code (LSC) of the National Fire Protection Association.  42 C.F.R. § 483.90(a)(1).  Based on the LSC survey findings, CMS determined that the facility was not in substantial compliance with:

• LSC §§ 7.1, 10.1, 18.2.1, and 19.2.1 (Tag K211 – means of egress) cited at scope and severity level E;
• LSC §§ 7.2.1.5, 18.2.2.2.4, 18.2.2.2.5, 18.2.2.2.6, 19.2.2.2.1, 19.2.2.2.4, 19.2.2.2.5, 19.2.2.2.6, 19.2.4.2, 19.2.5.2 (Tag K222 – egress doors) cited at scope and severity level E;
• LSC §§ 19.3.2.1, 19.3.5.9 (Tag K321 – hazardous areas – enclosure) cited at scope and severity level E;
• LSC §§ 19.3.6.1, 19.3.4.5.2 (Tag K347 – smoke detection) cited at scope and severity level D;
• LSC §§ 9.7.5, 9.7.7, and 9.7.8 (Tag K353) (sprinkler system – maintenance and testing) cited at scope and severity level E;
• LSC § 19.3.6.3 (Tag K363) (corridor – doors) cited at scope and severity level E;
• LSC §§ 8.6.7.1 and 19.3.7.3 (Tag K372) (smoke barrier construction) cited at scope and severity level E;
• LSC §§ 19.3.7.6, 19.3.7.8, 19.3.7.9 (Tag K374) (smoke barriers) cited at scope and severity level E;

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• LSC §§ 11.3.2, 11.3.6, and 11.6.2.3 (Tag K511) (utilities – gas and electric) cited at scope and severity level D.

CMS Exs. 1, 36.

February 11, 2021 federal survey (health).  Following the January survey, CMS sent a team of federal surveyors to the facility to perform a “comparative federal monitoring survey.”  The purpose of such a survey is to evaluate the performance of the state surveyors as well as the performance of the facility in meeting Medicare participation requirements.  Lopatcong Center, DAB No. 2443 at 3 (2012).  The federal surveyors completed their survey on February 11, 2021.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with:

• 42 C.F.R. § 483.10(f)(10) (Tag F567 – resident rights:  self-determination, financial affairs) cited at scope and severity level D;
• 42 C.F.R. § 483.20(g) (Tag F641 – resident assessments:  accuracy) cited at scope and severity level D;
• 42 C.F.R. § 483.25(g)(1)-(3) (Tag F692 – quality of care:  assisted nutrition and hydration) cited at scope and severity level G (isolated instance of substantial noncompliance that causes actual harm but does not pose immediate jeopardy to resident health and safety).¹

CMS Exs.1, 31; see also CMS Exs. 27, 28, 29.

CMS subsequently determined that the facility returned to substantial compliance on March 15, 2021.  CMS Ex. 2.

Based on the deficiencies cited during the February survey, CMS imposed civil money penalties (CMPs) of:

• $2,000 per day for 31 days (August 1 through 31, 2020);
• $350 per day for 30 days (September 1 through 30, 2020);
• $2,000 per day for 64 days (October 1 through December 3, 2020); and

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• $350 per day for 101 days (December 4, 2020, through March 14, 2021).

The total penalty is $235,850 ($62,000 + $10,500 + $128,000 + $35,350 = $235,850).  CMS Exs. 1, 2.  Initially, CMS imposed additional penalties (termination and denial of payment for new admissions) based on the deficiencies cited for all of the surveys.  CMS Ex. 1.  However, it subsequently rescinded the non-monetary penalties.  CMS Ex. 2.

Decision on the written record.  The parties have filed cross-motions for summary judgment.

In my standing order, I directed the parties to include, in the form of an affidavit or written declaration, the complete written direct testimony of any proposed witness.  Standing Order at 3, 5, 7 (¶¶ 4c(4), 8, 13).  Both parties initially attempted to circumvent that explicit direction by claiming that they had “not determined” whom they would call as witnesses.  Consistent with the regulations that authorize me to do so, my standing order is designed to narrow the issues and identify the evidence and witnesses to be presented at the hearing.  See 42 C.F.R. § 498.47(a).  Parties may not subvert this valid purpose by failing to identify a witness as ordered and expecting to do so at some unspecified later time.  They are not free to rewrite judges’ orders.

In any event, CMS listed nine potential witnesses and submitted their written direct testimony.  See CMS Exs. 17, 18, 19, 27, 28, 29, 30, 32, 33.

Petitioner also claimed that it had “not yet determined” which persons would be called as witnesses and listed 11 potential witnesses.  It provided the written direct testimony of just three of them.  P. Exs. 29, 38, 39.  CMS objected to the eight witnesses for whom Petitioner provided no written declaration, and Petitioner subsequently withdrew them.

In my standing order, I also directed the parties to identify any witnesses they wished to cross-examine, and I set deadlines for them to do so.  Standing Order at 5 (¶ 9).  I explained that a hearing to cross-examine witnesses would be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.  Standing Order at 5 (¶ 10).  CMS indicated that it does not wish to cross-examine Petitioner’s witnesses.  Petitioner did not indicate that it wished to cross-examine any of CMS’s witnesses.

Because there are no witnesses to be examined or cross-examined, an in-person hearing would serve no purpose, and the case may be decided based on the written record.²  Order Setting Closing Brief Schedule at 4.

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The parties’ submissions.  CMS has filed a pre-hearing brief and motion for summary judgment (CMS Br.) with 40 exhibits (CMS Exs. 1-40).  Petitioner filed its own prehearing brief and cross-motion for summary judgment (P. Br.) with 39 exhibits (P. Exs. 1-39).  CMS responded to Petitioner’s motion for summary judgment (CMS Response), and Petitioner responded to CMS’s response (P. Response).

Exhibits.  Petitioner objects to one of CMS’s exhibits – CMS Ex. 30 – which is the written declaration of CMS Nurse Consultant Daniel J. McElroy, R.N.³

Petitioner argues that Nurse Consultant McElroy improperly “render[ed] opinions regarding causation of actual harm, which is out of the scope of a [r]egistered [n]urse and strays into diagnosis.”  P. Br. at 2.  Petitioner does not point to any specific portion of the declaration in support of its claim and cites no underlying support for its assertion.⁴   In fact, Nurse Consultant McElroy did not make a medical diagnosis; he described proffered evidence and opined on why that evidence establishes the facility’s substantial noncompliance with the quality-of-care regulation.  See generally CMS Ex. 30.  And, even if he were diagnosing a medical condition, his testimony would be admissible, although the weight it merited would depend on his qualifications to render the opinion.  See Copperas Cove LTC Partners, Inc., DAB No. 3049 at 16 (2021); River City Center, DAB No. 2627 at 13-16 (2015); Golden Living Center, DAB No. 2296 at 6-8 (2009).

On the other hand, to the extent that Nurse Consultant McElroy recounts his thought processes in determining that the facility was not in substantial compliance, his testimony may be irrelevant (although Petitioner does not make this argument).  I review this matter de novo and am not concerned with the processes by which CMS reached its determination.  See 42 C.F.R. § 498.3(b) (listing initial determinations that are reviewable); 42 C.F.R. §§ 488.408(g)(2) (precluding appeal of the factors considered by CMS in selecting a remedy); Avalon Place Trinity, DAB No. 2819 at 12 n.8 (2017);

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Jewish Home of E. Pa., DAB No. 2380 at 7 n.3 (2011); N.C. State Veterans Home, Salisbury, DAB No. 2256 at 24 (2009); Emerald Oaks, DAB No. 1800 at 13 (2001).

Nevertheless, I am required to “inquire fully into all of the matters at issue” and to admit any documents that are relevant and material.  42 C.F.R. § 498.60(b).  Nurse Consultant McElroy’s declaration includes some assertions of fact and much legal argument, all relating to the facility’s purported substantial noncompliance, so it is not irrelevant – particularly since Petitioner relies on the McElroy testimony in arguing that the scope of my review is limited to one issue (discussed below).  I will therefore admit CMS Ex. 30.

In the absence of any other objections, I admit into evidence CMS Exs. 1-40 and P. Exs. 1-39.

Issues

Which deficiencies are reviewable here.  The parties do not agree about what issues are before me.  In its hearing request, Petitioner challenged all deficiencies cited in the three surveys.  Hearing Request (June 24, 2021).  Petitioner now maintains that only one deficiency is before me – whether the facility was in substantial compliance with 42 C.F.R. § 483.25(g)(1)-(3).  P. Br. at 2.  CMS argues that all 17 of the deficiencies cited during the three surveys are before me.  CMS Response at 3.  Neither party is correct.

A facility may challenge a finding of substantial noncompliance for which CMS imposes one of the remedies specified in 42 C.F.R. § 488.406.  42 C.F.R. § 498.3(b)(13); see 42 C.F.R. § 498.3(a).  A facility has no right to a hearing unless CMS imposes one of the specified remedies.  The remedy, not the citation of a deficiency, triggers the right to a hearing.  The Lutheran Home – Caledonia, DAB No. 1753 (2000).  Citing the testimony of Nurse Consultant McElroy (again, without citing the page number), Petitioner asserts that Tag F692 (which corresponds to section 483.25(g)(1)-(3)) “is the only tag for which the [CMPs] have been imposed.”  P. Br. at 2.  This is incorrect.

CMS’s notice letters resolve this dispute.  Initially, CMS imposed remedies – termination and denial of payment for new admissions – based on the deficiencies cited in all three surveys.  Had these penalties remained in place, all of the cited deficiencies would have been reviewable.  CMS also imposed the per-day CMPs “for the federal survey” only.  CMS Ex. 1 at 2 (emphasis added).  When CMS rescinded the non-monetary remedies, the deficiencies cited during the January survey were no longer reviewable.  However, all of the deficiencies cited during the federal survey are reviewable.  Nurse Consultant McElroy’s testimony – which is somewhat confusing – does not change this.  On the one hand, he says that the “the CMP was for F692,” but he also acknowledges that three deficiencies were cited and says:  “A per-day CMP applies to and gives appeal rights for each deficiency on each day the CMP was in effect and the [r]equirement was certified not to be in compliance.”  CMS Ex. 30 at 2 (McElroy Decl. ¶ 2) (emphasis added).

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Consultant McElroy was obviously involved in selecting remedies, and it may have been his intention to limit the penalty to the G-level deficiency.  However, that is not what CMS ultimately did.  I am required to review that final determination, which is reflected in the notice letter, not the processes by which it got there.  CMS may have determined that the quality-of-care deficiency, by itself, justified the penalty imposed; however, the facility may not appeal the factors CMS considered in selecting a remedy.  42 C.F.R. § 488.408(g)(2).

Adequate notice.  The explicit statement in the April 28, 2021 notice letter gave Petitioner notice that the CMP was based on all the deficiencies cited during the February survey, and therefore all deficiencies are reviewable.  CMS Ex. 1.  CMS’s pre-hearing submissions gave Petitioner additional notice that all three deficiencies from that survey were before me.  The issues were thus properly raised, and Petitioner had ample notice and opportunity to respond.  See Lifecare Center of Bardstown, DAB No. 2479 at 8 (2012) (finding that the statement of deficiencies and CMS’s arguments before the ALJ put the petitioner on notice of the issues).

In my standing order, I directed the parties to submit briefs “addressing all issues of law and fact” and advised them that their “[b]riefs must contain all arguments that a party intends to make.”  I warned that I might not consider an argument and evidence that relates to the argument if a party does not address it in its brief.  Standing Order at 3 (¶ 4c(1)) (emphasis added).  Because Petitioner has not argued that it was in substantial compliance with 42 C.F.R. §§ 483.10(f)(10) and 483.20(g), I find that the facility was not in substantial compliance with those two Medicare program requirements.  I must therefore sustain a CMP of at least $112 per day for 226 days of substantial noncompliance (August 1, 2020, through March 14, 2021).⁵   CMS Exs. 1, 2; 42 C.F.R. §§ 488.408(e), 488.438; 45 C.F.R. § 102.3; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).

Scope-and-severity review.  Petitioner also asserts that I should determine whether the facility’s actions (or inaction) caused R92 actual harm.  P. Br. at 2.  First, I need not find actual harm in order to find that the facility was not in substantial compliance.  As noted above, a facility is not in substantial compliance if its deficiencies pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301 (emphasis added).

Second, I have no authority to review CMS’s scope-and-severity determination (which includes a finding of actual harm) in this case.  The regulations authorize a review of scope and severity if:  1) a successful challenge would affect the range of the CMP; or 2)

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CMS has made a finding of substandard quality of care that results in the loss of approval of the facility’s nurse aide training program.  42 C.F.R. §§ 498.3(b)(14), 498.3(d)(10).  Here, the CMP range would not change if I lowered the scope-and-severity finding because the penalty CMS imposed is already in the lower of the two CMP ranges.  42 C.F.R. § 488.438(a)(1).

Petitioner has not claimed that it has a nurse aide training program, but, even if it has, CMS has not found “substandard quality of care.”  For CMS to find substandard quality of care, the deficiency must be cited at one of the following scope-and-severity levels:  immediate jeopardy; a pattern of or widespread actual harm that is not immediate jeopardy; or widespread deficiencies with the potential for more than minimal harm.  42 C.F.R. § 488.301.  An isolated instance of actual harm is insufficient to support a finding of substandard quality of care.

Finally, if (as here) I approve a penalty of $11,160 or more, CMS’s scope-and-severity finding will not affect approval of the facility’s nurse aide training program.  Under the statute and regulations, the state agency cannot approve the program if CMS imposes a penalty of $11,160 or more.  Thus, the facility loses its approval without regard to the scope-and-severity finding.  Act § 1819(f)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv); 85 Fed. Reg. 2,869, 2,886 (Jan. 17, 2020).  The scope-and-severity determination is therefore not reviewable.

Therefore, the issues before me are:

• From August 1, 2020, through March 14, 2021, was the facility in substantial compliance with 42 C.F.R. § 483.25(g)(1)-(3); and
• Are the penalties imposed – $2,000 per day for 31 days (August 1 through 31, 2020), $350 per day for 30 days (September 1 through 30, 2020), $2,000 per day for 64 days (October 1 through December 3, 2020); and $350 per day for 101 days (December 4, 2020, through March 14, 2021) – reasonable? 

Discussion

1. The facility was not in substantial compliance with 42 C.F.R. § 483.25(g)(1)-(3) because its staff did not consistently follow facility policies or implement the interventions called for in a resident’s care plan, and the resident did not maintain acceptable parameters of nutritional status, such as stable body weight; the facility did not provide sufficient fluid intake to maintain the resident’s proper hydration and health.⁶

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Program requirement:  42 C.F.R. § 483.25(g)(1)-(3) (Tag F692).  Quality of care “is a fundamental principle that applies to all treatment and care provided to facility residents.”  42 C.F.R. § 483.25.

The statute and regulation require that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  Act § 1819(b)(2); 42 C.F.R. § 483.25.

To this end, the “quality-of-care” regulation mandates, among other requirements, that the facility ensure that, based on a comprehensive assessment, a resident:  1) maintains acceptable parameters of nutritional status, such as usual body weight or desirable body weight range and electrolyte balance, unless the resident’s clinical condition demonstrates that this is not possible, or resident preferences indicate otherwise; 2) is offered sufficient fluid intake to maintain proper hydration and health; and 3) is offered a therapeutic diet when there is a nutritional problem, and the health care provider orders a therapeutic diet.  42 C.F.R. § 483.25(g)(1)-(3)

The clinical condition exception is a narrow one and applies only when the facility can demonstrate that it cannot provide nutrition adequate for the resident’s overall needs, so the weight loss was unavoidable.  Texan Nursing Rehab. of Amarillo, DAB No. 2323 at 11 (2010); The Windsor House, DAB No. 1942 at 18 (2004).⁷

The facility must “take reasonable and timely measures to minimize the risk that nutritional impairment will become manifest.”  The question is not whether a resident’s weight falls below a particular threshold; the question is whether the facility takes reasonable and timely steps to help ensure that the resident maintains acceptable parameters of nutritional status.  Carrington Place of Muscatine, DAB No. 2321 at 9-10 (2010).

By itself, unplanned weight loss raises an inference of inadequate nutrition and supports a prima facie case of a deficiency.  Desert Lane Care Center, DAB No. 2287 at 5 (2009).

Facility policies:  nutrition management.  As the Departmental Appeals Board has repeatedly explained, a facility’s policy for implementing a regulatory requirement

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reflects the facility’s own judgment about how best to achieve compliance.  Failing to comply with its own policies “can support a finding that the facility did not achieve compliance with the regulatory standard.”  Bivens Memorial Nursing Home, DAB No. 2771 at 9 (2017); Bridge at Rockwood, DAB No. 2954 at 19 (2019) (ruling that, absent contrary evidence, it is reasonable to presume that the facility’s policies reflect professional standards); Hanover Hill Health Care Ctr., DAB No. 2507 at 6 (2013); Life Care Ctr. at Bardstown, DAB No. 233 at 21-22 (2009) (finding that a facility’s failing to comply with its own policies can constitute a deficiency).

The Board has also repeatedly applied this principle to the quality-of-care regulation, opining that CMS “may reasonably rely on a facility’s policy relating to the care and treatment of its residents as evidencing the facility’s understanding of what must be done to attain or maintain residents’ highest practicable physical, mental, and psychosocial well-being, as required by [42 C.F.R.] section 483.25.”  Green Valley Healthcare and Rehab. Ctr., DAB No. 2947 at 6 (2019) (citing The Laurels at Forest Glenn, DAB No. 2182 at 18 (2008)); North Las Vegas Care Ctr., DAB No. 2946 at 6 (2019); Hanover Hills Health Care Ctr., DAB No. 2507 at 6 (2013) (observing that “the Board has long held that a facility’s own policy may be sufficient evidence . . . of what the facility has determined is needed to meet the quality-of-care requirements in section 483.25.”).

Here, the facility had in place written policies establishing a “Nutrition Management Program,” aimed at reducing resident risks for nutritional disorders by managing, stabilizing, and reversing weight loss, when possible.  The program is described as an “interdisciplinary process[,] designed to identify, prevent, and reduce the risk factors associated with nutritional disorders.”  CMS Ex. 21 at 1.

Specifically, the policy directs staff to:

1. Identify and assess residents with nutritional risk factors.  Those factors include:  anemia, confusion, impaired cognition, malnutrition, urinary tract infections, weight loss, end stage disease process, difficulty swallowing, lack of appetite, acute medical conditions, infections, refusal to eat, hospice care, and pain.
2. Weigh the resident at least monthly, and more frequently, if needed.  Hospice residents may be exempt from monthly weights, based on clinical condition.
3. Report weight loss to the immediate nursing supervisor if it meets the following criteria:  5% loss in one month; 7.5% loss in three months; and 10% loss in six months.  Before reporting, reweigh to assure accuracy.
4. Report weight loss to the dietician, physician, and/or family caregiver.

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5. Identify and evaluate additional risk factors, including:  arthritis; constipation; decreased fat tolerance; decreased physical activity or immobility; decreased sensation of smell, taste, and sight; dehydration; fluid retention; depression; diminished appetite/eating ability; drug-nutrient interactions; dry mouth; exacerbation of medical condition; hearing or vision impairment; impaired swallowing; increased physical activity, wandering; infection; iron deficiency; lactose intolerance; less efficient digestion; memory loss and short attention span; need for socialization; oral health problems, including missing teeth, lack of suitable dentures; pain, pressure ulcers; need for assistance with feeding; refusal to eat; significant change in condition; and shortness of breath.
6. Implement individualized interventions based on interdisciplinary assessments and resident and family goals, which promote the highest level of function and dignity.  This includes referrals to restorative programs.
7. Reevaluate interventions to determine effectiveness, which includes reviewing and revising the resident care plan.
8. Educate the resident and family in effective nutritional practices, as applicable.
9. Refer to the Palliative Care Program if conditions exist that make nutrition deficit unavoidable, and all appropriate efforts have been made to encourage and provide intake.

CMS Ex. 21 at 1-3.

An additional, and similar, policy, titled “Nutritional Status – Management and Improvement,” indicates that facility clinicians are to “participate as interdisciplinary team members” in managing and improving the resident’s nutritional status by monitoring, evaluating, and treating risk factors affecting the resident’s nutritional status.  CMS Ex. 21.

Consistent with the facility’s other nutrition management policy, this policy directs the team to:

1. Identify nutritional status.
2. Develop and implement individualized interventions to prevent/reduce the risk of nutritional disorders.  The plan may include, but is not limited to:  ambulation, exercise, and other activities; energy conservation techniques; enteral nutrition; pharmacologic interventions to decrease depression and/or anxiety; restorative dining; skin care; supplements – medication pass (referring to the “Supplements-Medication Pass” procedures); snacks; and liberalized diet.

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3. Determine the amount of time the resident needs for adequate intake of meals.
4. Communicate interventions to the caregiving team.
5. Provide staff training, as needed.
6. Plan for sufficient staff assistance at mealtime for dependent/confused residents.
7. Record percentage of food and fluid intake at each meal, unless an alternative process is implemented to determine if the nutrition is adequate to meet the resident’s needs (i.e., weighed weekly or appetite documented with each meal).
8. Trend and communicate types of foods remaining on plate for reevaluation of food likes and dislikes.
9. Weigh resident monthly or more frequently as needed to assure that the resident maintains/reaches usual body weight.
10. Report the following weight loss to immediate nursing supervisor:  5% loss in one month; 7.5% loss in three months; and 10% loss in six months.
11.   Report the weight loss/gain to the dietician, physician, and family/caregiver.  Obtain orders if needed.
12.   Develop an interdisciplinary educational plan in collaboration with the resident and family if the resident is noncompliant with the diet.
13.   Review and revise the risk prevention/reduction interventions, as needed.
14.   Educate the resident and family regarding nutritional intake.

CMS Ex. 21 at 4-5.

Facility policy:  Supplements – Medication Pass.  To ensure the intake of required nutrients and to maintain or improve a resident’s body weight, the facility had in place a policy for offering to residents at nutritional risk, during medication pass, a nutrient dense supplement.  The policy required staff to record, as part of the meal percentage that the resident consumed, any “caloric enhancements” that were ordered and served with meals (e.g., Super Cereal, extra meal portions, ice cream, Magic Cups).  “If the supplement was not ordered as additional food/fluids to be served with meals, it will be added to the Medication Administration Record (MAR) for the Nurse/Medication Aide to administer.”  P. Ex. 30 at 1.

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This policy directs staff to:

1. Identify the residents who would benefit from medication pass supplements, using:  the nursing admission documentation; Braden Risk Assessment Scale (measuring risk for pressure sores); meal consumption record; resident weight record; and/or dietician/dietetic technician recommendations.
2. Refer the resident to the dietician for evaluation.
3. Include the resident and family in recommended intervention.
4. Obtain a physician’s order for the Medpass supplement that includes the name of the supplement and indicates how frequently it should be given.
5. Notify the dietician of the new supplement order.
6. Determine if the resident has a preferred flavor, based on availability, and instruct the Nutrition Services Manager to provide the preference.
7. Notify the nutrition services department of the order using the “Nutrition Services Request/Change Order” form.
8. Record the physician’s order on the MAR.
9. Communicate the intervention to the caregiving team.
10.  Refrigerate the supplement as needed.
11.  Administer the supplement as ordered during the scheduled medication pass unless the milk or food is contraindicated with medications.
12.  Offer at least two ounces of water after each med-pass supplement.
13.  Initial the MAR when the ordered amount of the supplement is given.  If the resident does not consume the total amount ordered or refuses the supplement, circle initials and document the reason on the back of the MAR.  Documentation of the medication pass ordered supplements follows the same procedure as for administering medication or treatment.
14.  Weigh the resident monthly or more frequently, as directed by the registered dietician.

P. Ex. 30.

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Resident 92 (R92).  R92 was an 87-year-old woman, admitted to the facility on February 23, 2011, suffering from a long list of impairments, including Alzheimer’s disease, encephalopathy (brain disease), osteoarthritis, gastro-esophageal reflux disease; muscle weakness, abnormal weight loss, acute respiratory disease, vitamin deficiency, vitamin B12 deficiency, anemia, active rickets, and an anxiety disorder.  CMS Ex. 20 at 1-2, 24; P. Ex. 1; P. Ex. 14 at 28.

R2’s care plan, dated September 18, 2020, and renewed December 1, 2020, identified, as a problem, her potential for weight loss and listed conditions contributing to the problem, including:

• impaired cognition, Alzheimer’s disease and dementia that could result in her decreased awareness of food and fluid needs;
• anemia;
• gastric problems (gastro-esophageal reflux disease);
• diminished senses of taste and smell;
• history of frequent wandering, particularly at meal times and most often during the evening meal, when she becomes restless and wanders (noting that staff must redirect her to remain seated at mealtimes); as of June 14, 2020, she walked with assistance.

CMS Ex. 20 at 4, 10.  Among the interventions listed in her care plan were to serve her ice cream, Magic Cup (high calorie ice cream supplement), or sherbet at lunch and dinner.  Staff were also supposed to serve her Ensure (liquid supplement shake), as ordered.  CMS Ex. 20 at 11.  Staff were to monitor R92’s intake at each meal; if her intake was less than 50%, they were supposed to offer her a substitute.  CMS Ex. 20 at 11, 13, 14; P. Ex. 21 at 1; see also CMS Ex. 27 at 1-2 (Youngman Decl. ¶ 9).

On December 1, 2020, the facility added to R92’s care plan instructions to serve Super Cereal (high calorie cereal) with breakfast.  CMS Ex. 20 at 12; see also CMS Ex. 27 at 1-2 (Youngman Decl ¶ 9).

Physician orders.  Consistent with the resident’s care plan, her physician, Thomas M. Buzbee, M.D., ordered nutritional supplements:

• On May 21, 2020, he ordered Magic Cup, ice cream, or sherbet “with meals:  08:00 AM, 12:00 PM, 05:00 PM.”  CMS Ex. 20 at 24.

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• On September 14, 2020, he ordered Ensure twice a day.  CMS Ex. 20 at 26, 30-31.
• On October 8, 2019, he ordered Super Cereal with breakfast.  CMS Ex. 20 at 24.

On October 9, 2020, he ordered a pureed diet and thin liquids.  CMS Ex. 20 at 24.

Speech therapy.  On August 5, 2020, nursing referred R92 to rehab for speech-language evaluation and services, reporting that the resident “pocketed” her food – held it in her mouth without swallowing.  She also ate very slowly, would tire, and then would stop eating.⁸   P. Exs. 5, 6; see also P. Ex. 29 at 2 (Buzbee Decl.).  Speech therapy records show that a therapist provided dysphagia therapy from August 6 through 26, 2020.  At discharge, the therapist characterized R92’s prognosis for maintaining her (then) current level of functioning (CLOF) as “good with consistent staff follow-through.”  The therapist noted that R92 required close supervision for oral intake.  P. Ex. 7 at 8.

Following speech therapy recommendations, R92 was put on a pureed diet on August 7.  P. Ex. 14 at 1.

R92’s weight loss.  Each party submits a separate set of weight records for R92.  They are not identical, but they are consistent.  CMS submits a December 15, 2020 dietician progress note that includes the dietician’s record of R92’s monthly weights from September 2019 through November 2020, although the record does not include a weight for August 2020.⁹   The list reflects the month and year the resident was weighed – but not the specific day.  It includes more than one year’s weights and establishes that R92’s nutritional status issues were serious and long-standing.

Month/Year             Weight

September 2019        146

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October 2019            136
November 2019        142
December 2019        140
January 2020            138
February 2020          140
March 2020               137
April 2020                 134
May 2020                  132
June 2020                  131
July 2020                   135
August 2020              no weight recorded on this document
September 2020        123
October 2020            123
November 2020        118

CMS Ex. 20 at 57.

Petitioner produces a document titled “Weight Variance Report,” which includes the resident’s weights from May 4, 2020, through May 3, 2021, and provides specific dates.  The report also includes a recorded weight for August 2020.

Date and Time                                 Weight

May 4, 2020, at 2:03 p.m.                132
May 12, 2020, at 4:25 p.m.             130
June 1, 2020, at 4:30 p.m.               131
July 1, 2020, at 11:34 a.m.              135
August 3, 2020, at 3:20 p.m.           127
September 2, 2020, at 1:57 p.m.     123
October 2, 2020, at 1:00 p.m.         123
November 4, 2020, at 11:48 a.m.   118
December 2, 2020, at 8:46 a.m.      109

Resident hospitalized December 3 - 13, 2020

December 16, 2020, at 11:56 a.m. 116
December 29, 2020, at 11:53 a.m. 114
January 5, 2020, at 1:26 p.m.          115
January 27, 2020, at 10:45 a.m.      118
February 2, 2021, at 11:44 a.m.      120
February 11, 2021, at 10:45 a.m.    118

P. Ex. 4.

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R92’s hospitalization.  R92 was hospitalized on December 3, 2020, with hypernatremia (high concentration of sodium in the blood) and dehydration.  She had a urinary tract infection and metabolic encephalopathy.  She also had severe protein-calorie malnutrition.  The hospital noted that her oral intake was much less than 50%, and her caloric count showed “no evidence of survivable intake.”  CMS Ex. 20 at 56.  The hospital placed a PEG (percutaneous endoscopic gastrostomy) tube for feeding.  CMS Ex. 20 at 56; P. Ex. 23 at 1; P. Ex. 24.

R92 returned to the facility on December 13, 2020, in stable condition, appropriately hydrated and treated with antibiotics for her urinary tract infection.  CMS Ex. 20 at 56. Her discharge diagnoses included:  severe protein-calorie malnutrition; dehydration; acute kidney injury; encephalopathy due to dehydration; essential hypertension; known Alzheimer’s dementia; acute lower urinary tract infection; metabolic encephalopathy; and history of rickets.  She was bedbound and had a chronic pain disorder.  CMS Ex. 20 at 55.

Thereafter, the facility amended Petitioner’s care plan to account for her tube feeding.  Among other changes, she was to be weighed weekly for four weeks, and the dietician was to assess her for changes in formula, lab values, and weight loss.  CMS Ex. 20 at 5; P. Ex. 20 at 3.  She began to regain weight.  P. Ex. 4.

Between July 1 and December 2, 2020, R92 lost almost 20% of her body weight (19.2%).  She ended up severely dehydrated and suffering from malnutrition.  She plainly was not maintaining “acceptable standards of nutritional status.”  This raises an inference of inadequate nutrition and supports a prima facie case of a deficiency.  Desert Lane, DAB No. 2287 at 5.  The question is whether the facility took “reasonable and timely steps” to ensure that R92 maintained acceptable parameters of nutritional status.  Carrington Place of Muscatine, DAB No. 2321 at 9-10.  The evidence establishes that it did not.

Petitioner makes much of the fact that, notwithstanding her unintended weight loss, R92 was technically overweight until September 2020 and never fell below what is considered a normal weight.  See P. Br. at 8-9.  I find this irrelevant.  The regulation includes maintaining “usual body weight” as a measure of maintaining acceptable parameters of nutritional status.  42 C.F.R. § 483.25(g)(1).  Further, it is possible to be a normal weight – or even overweight or obese – and still be malnourished.  Notwithstanding a person’s BMI (body mass index), malnutrition is a serious condition, having “an adverse effect on cells, tissues, organs, and the body understood as a whole, which is manifested in the deterioration of its functioning and a negative change in the overall clinical picture.”  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8820192/ (last visited June 9, 2023).  That R92 had been overweight does not change the reality that malnutrition and dehydration seriously jeopardized her health.

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Petitioner also attributes R92’s debilitated condition to her underlying disease and points out examples of the facility intervening to address her nutritional issues.  P. Br. at 4-7.  CMS has not denied that the facility took some steps, but cites (accurately) numerous instances in which the facility fell short by failing to follow the resident’s care plan and its own policies for administering nutritional supplements, documenting her consumption of supplements, documenting her fluid intake, documenting the percentage of meals she consumed, offering alternatives to uneaten meals, and otherwise addressing her dramatic weight loss.  CMS Br. at 2-5.  Most significant, the facility’s registered dietician issued reports that did not accurately reflect the resident’s status, misleading the interdisciplinary team and the resident’s physician.  CMS Ex. 4-5; CMS Ex. 20 at 46-51; CMS Ex. 26 at 4; CMS Ex. 31 at 22.  Further, the facility’s staff also misled the resident’s physician regarding R92’s weight loss.  CMS Ex. 20 at 46-51; CMS Ex. 26 at 4; CMS Ex. 31 at 22.

Failing to track R92’s meal consumption and fluid intake.  Contrary to the facility’s policy and R92’s care plan, staff did not consistently track her food and fluid intake at each meal nor “trend and communicate” the types of foods remaining on her plate.  CMS Ex. 20 at 11, 13, 14; CMS Ex. 21 at 4-5.  For the month prior to her hospitalization, the facility’s records of meal consumption show that staff consistently failed to track R92’s food intake as required.  Of the approximately 98 meals served from November 1 through December 3, 2020 (omitting dinner on December 3, when she was hospitalized), staff did not report her food intake approximately 57 times (58% of the meals).  Specifically:

• From November 1 through 3, 2020, staff reported her dinner consumption, but did not report for breakfast and lunch.
• Staff did not report breakfast and lunch consumption on November 6.
• Staff did not report consumption for any meals on November 7 and 8.
• Staff did not report lunch consumption on November 13.
• Staff did not report consumption for any meals on November 14, 15, and 16.
• Staff did not report dinner consumption on November 18.
• Staff did not report lunch and dinner consumption on November 19.
• Staff did not report dinner consumption on November 20.
• Staff did not report consumption for any meals on November 21 and 22.

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• Staff did not report dinner consumption on November 23.
• Staff did not report lunch and dinner consumption on November 24.
• Staff did not report breakfast and lunch consumption on November 25.
• Staff did not report lunch and dinner consumption on November 26.
• Staff did not report breakfast and dinner consumption on November 27.
• Staff did not report consumption for any meals on November 28 and 29.
• Staff did not report breakfast and lunch consumption on November 30.
• Staff did not report consumption for any meals on December 1 and 2.

CMS Ex. 20 at 32-34.

No records show that staff were monitoring R92’s fluid intake, as required.  See CMS Ex. 20 at 30-34.

If R92’s food intake was less than 50%, her care plan directed staff to offer her a substitute meal.  CMS Ex. 20 at 11, 13, 14.  As shown above, staff reported no intake level for most of the meals served between November 1 and December 3, 2020.  Of the remaining 41 or so meals, staff reported that she ate less than half her meal (26-50%) 13 times (just over 31%):  breakfast on November 5, 11, 17, 23 and December 3; lunch on November 5, 11, 17, 23, 27 and December 3; and dinner on November 6, 13.  Yet, no documentation or other evidence suggests that she was ever offered an alternative.  CMS Ex. 20 at 32-34; CMS Ex. 27 at 2 (Youngman Decl. ¶ 9).

Thus, for a whopping 71% of R92’s meals (57 + 13 = 70; 70/98 = 71.4%), facility staff failed to follow facility policies and the resident care plan in accounting for her meal consumption and offering alternatives when she consumed less than 50% of her meal.

Failing to administer and monitor supplements.  During the medication pass, staff were required to administer supplements as ordered and to follow the same procedures as for administering medications.  Records do not include R92’s fluid intake or consumption of nutritional supplements.  See CMS Ex. 20 at 30-34.  Nothing indicates that staff were even assessing her for dehydration/fluid maintenance, and her September 9, 2020 assessment suggests that they were not.  It indicates that the care area was not “triggered”; there were no care planning decisions; and, although the form asks for the

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information, it refers to no area where documentation of hydration was found.  P. Ex. 14 at 49.

The facility policy directed staff to administer ordered nutritional supplements during the scheduled medication pass.  R92’s MAR shows that they did not do so consistently.  For the month of November 2020, the MAR shows that, four times out of thirty, staff did not administer Ensure at 10:00 a.m., as ordered by her physician.  CMS Ex. 20 at 26, 30-31.

Nor did staff document that they administered Super Cereal with breakfast, or the Magic Cup, ice cream or sherbet with lunch and dinner as called for in the physician’s order.  CMS Ex. 20 at 30-31; CMS Ex. 27 at 2 (Youngman Decl. ¶ 9).

Throughout November and prior to her December 3 hospitalization, staff did not document the amount of Ensure R92 consumed.  CMS Ex. 20 at 30-31; CMS Ex. 27 at 2 (Youngman Decl. ¶ 9).

Inadequate assessments and dietary reports.  Petitioner points, generally, to a series of reports prepared by the facility’s consultant dietician, which, it suggests, show that the facility intervened to address R92’s weight loss.  P. Br. at 3, citing P. Ex. 10.  But, in significant ways, the dietician’s reports and other assessments did not reflect the significant changes in R92’s condition and, for that reason, they led to poor care planning.

An assessment, dated July 3, 2020, indicates that the resident had had symptoms of poor appetite for several days (2-6 days) over the prior two weeks.  P. Ex. 15 at 9.  She continued to hold food in her mouth or cheeks after meals.  Nevertheless, at that time, she weighed 135 pounds, and had not lost 5% of her weight over the past month or 10% over the prior three months. For the prior week, restorative nursing had not addressed her eating or swallowing issues.  P. Ex. 15 at 28, 38.

In a report dated August 4, 2020, the dietician wrote (inaccurately) that R92’s weight had been “stable” over the preceding six months, and that she “continues to eat well” on a mechanical soft diet with chopped meats.  The dietician recommended that the facility “continue with current plan.  No new recommendations.”  P. Ex. 10 at 1, 3.  In fact, in February 2020, R92 weighed 140 pounds.  CMS Ex. 20 at 57.  Six months later, on August 3, 2020, she weighed 127 pounds.  She had lost 9.2% of her body weight.  P. Ex. 4.  More significant, in the preceding month, from July 1 through August 3, her weight dropped from 135 to 127; she lost eight pounds (5.9% of her body weight) in one month.  P. Ex. 10 at 4.

In her September 8, 2020 report, the dietician noted that R92 had a “significant weight loss” over the preceding six months.  She also wrote that the resident was eating around 75% of her meals and that her weight status was “good.”  How she determined that R92

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was eating that much is a mystery.  The “75%” determination is particularly questionable given the way staff reported consumption – in quartiles.  Staff would not have reported that she ate 75% of her meal; they would have reported that she was eating “50 to 75%” of her meals, which could be significantly less than 75% overall.  The dietician recommended adding Ensure twice a day.  P. Ex. 10 at 4, 5.

The Interdisciplinary Plan of Care Summary, dated September 9, 2020, indicates that R92’s hydration status and weights were reviewed.  P. Ex. 14 at 1.  By then, R92’s weight was down to 123; she’d lost 10.2% of her body weight in the preceding six months.  CMS Ex. 20 at 57; P. Ex. 4; P. Ex. 14 at 34.  Yet, according to her September 9 assessment, she was not at risk for malnutrition.  P. Ex. 14 at 29.  The assessment was based on the dietician’s and nursing’s documentation.  P. Ex. 14 at 49.

In her October 6, 2020 report, the dietician again noted the resident’s significant weight loss over the preceding six months but said that her weight had been stable for the last month.  Her diet was changed to puree on August 7, 2020, and she was eating around 50 to 75% of her meals.  She characterized the resident’s weight as “good weight status at 123% of ideal body weight.”  The dietician noted that R92 was receiving “two supplement[s], magic cups and super cereal[,] with breakfast” and that Ensure was started on September 14, 2020.  The dietician recommended that she continue on the current plan.  “No new recommendations.”  CMS Ex. 20 at 43, 45; P. Ex. 10 at 6, 7.

Thereafter, even as R92’s weight was dropping, the dietician did not alert facility staff and the resident’s physician of any problems.  In her November 10, 2020 report, she did not mention that the resident had lost five pounds the preceding month but wrote that the resident’s weight status was “good” and that she was on “appropriate therapies to promote weight gain.”  She had “no new recommendations.”  CMS Ex. 20 at 44; P. Ex. 10 at 8, 9; see also CMS Ex. 27 at 2 (Youngman Decl. ¶ 10).

As late as November 14, 2020, staff reported that R92’s appetite was “fair to good” and that she took fluids well.  P. Ex. 17 at 3.

Between September 3 and December 3, 2020, R92’s weight dropped from 123 pounds to 109 pounds, and she ended up dehydrated and severely malnourished.  However, her Weight Variance chart shows that, during that time, the dietician made no new recommendations.  CMS Ex. 20 at 45.  To the contrary, notes indicate that her therapies were “appropriate,” and recommended that she continue on her plan of care.  CMS Ex. 20 at 45.  Those “therapies” did not prevent her from suffering from malnutrition and dehydration.

The dietician told Surveyor Amy Youngman that, on November 10, 2020, she noted that R92 had a 10% weight loss in the previous six months; however, she did not upload her documentation of that into the facility’s electronic medical records, to be reviewed by the

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facility’s other care providers.  She explained that she was supposed to report the resident’s weight loss to facility management, who were supposed to report to the physician.  CMS Ex. 27 at 2 (Youngman Decl. ¶ 13).  The facility’s administrator confirmed that the facility had a Weight Management Committee.  Twice a month, it reviewed residents with significant weight losses.  She did not understand why R92’s significant weight loss was not “fully and appropriately addressed prior to her hospitalization.”  CMS Ex. 27 at 2-3 (Youngman Decl. ¶ 13).

When statements are made by the facility’s own employees, and those individuals have not refuted them, they may constitute substantial evidence.  See Beatrice State Developmental Ctr., DAB No. 2311 at 17, 18 (2010) (pointing out that the facility could have but did not present employee testimony that refuted the statements the surveyors claimed they made); Omni Manor Nursing Home, DAB No. 1920 at 11 (2004) (holding that statements of facility employees to the surveyors may be admitted in an administrative proceeding and may constitute substantial evidence).  Here, neither the dietician nor the administrator denies making those statements to Surveyor Youngman nor claims that her statement is untrue.

Inadequate and misleading reports to R92’s physician.  According to Surveyor Amy Youngman, she interviewed R92’s physician, and he told her that he had not been fully aware of R92’s declining nutritional status.  Had he known, he could have attempted additional interventions, such as medications to stimulate appetite.  CMS Ex. 27 at 2 (Youngman Decl. ¶ 13).  Dr. Buzbee denies being interviewed during the survey concerning his knowledge of the resident’s weight loss.  He claims that he received the dietician’s reports and that he was advised of the resident’s weight monthly, at the times of his visits to the facility.  P. Ex. 29 at 3.

I find it highly unlikely that the surveyor didn’t interview R92’s treating physician.  In any event, documents establish that he was often misinformed.  As shown, the dietician’s reports, upon which he relied, were not completely accurate.

The record does not include many physician progress notes.  There are two in the record, dated December 1 and 2, 2020.  These were “telephone encounters.”¹⁰   Dr. Buzbee spoke to facility staff.  On each occasion the note indicates “weight loss denies.”  CMS Ex. 20 at 46, 49; P. Ex. 22 at 1.  This was, of course, not true.  At that time, R92 weighed 109 pounds, having lost nine pounds since November 4 (7.6% of her body weight).  P. Ex. 4.

Moreover, R92’s December 2 lab tests showed that she was “significantly dehydrated,” so her physician directed facility staff to push fluids.  CMS Ex. 20 at 49.  Her BUN (blood urea nitrogen) level was an astonishing 48.  Normal range is 7-24.  Her creatine level was also high (1.7 versus normal levels of .6 to 1.3).  CMS Ex. 20 at 52; P. Ex. 13 at

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1.  High creatine levels may indicate that kidneys are not working properly.  See https://www.cdc.gov/kidneydisease/publications-resources/kidney-tests.html.

R92 thus did not maintain acceptable parameters of nutritional status, and the facility’s response was inadequate.  This put the facility out of substantial compliance with section 483.25(g).

2. The penalties imposed are not unreasonably high.

To determine whether the CMP is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance, including repeat deficiencies; 2) the facility’s financial condition; 3) factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors in 42 C.F.R. § 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.

The burden is on the facility to demonstrate that a reduction is necessary to make the CMP amount reasonable.  Heritage Plaza Nursing Ctr., DAB No. 2017 at 22 (2017).

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  Barn Hill Care Center, DAB No. 1848, at 21 (2002); Community Nursing Home, DAB No. 1807, at 22 et seq. (2002); Emerald Oaks, DAB No. 1800, at 9 (2001); CarePlex of Silver Spring, DAB No. 1638, at 8 (1999).

I determine whether penalties are reasonable based on the per-day penalty, not the total accrued amount.  Crawford Healthcare and Rehab., DAB No. 2738 at 20 (2016); see 42 C.F.R. § 488.438(f).

Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, April 28, 2021.  CMS Ex. 1; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).  CMS imposed penalties of $2,000 a day for 95 days and $350 a day for 131 days of substantial noncompliance, for a total penalty of $235,850.

The $2,000 per-day penalty is at the low end of the penalty range for substantial noncompliance, and the $350 per-day penalty is at the very low end of the range ($112 to $6,695).  42 C.F.R. §§ 488.408(e), 488.438; 45 C.F.R. § 102.3; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).

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Considering the relevant factors, these amounts are reasonable.

The facility’s compliance history has been less than stellar.  Within three preceding years, one survey resulted in a finding of substantial noncompliance, with at least one deficiency causing actual harm to a facility resident.  CMS Ex. 30 at 8 (McElroy Decl. ¶ 3).

Petitioner argues that its financial condition renders it unable to pay the penalty imposed.  P. Br. at 16-18.

It is well-settled that the facility has the burden of proving, by a preponderance of the evidence, that paying the CMP would render it insolvent or would compromise the health and safety of its residents.  Van Duyn Home and Hosp., DAB No. 2368 (2011); Gillman Care Ctr., DAB No. 2357 (2010).  To meet the standard for lowering a CMP based on financial condition, claims must be supported by compelling documentation.  In Guardian Care Nursing & Rehab. Ctr., DAB No. 2260 (2009), for example, the facility could not even afford to represent itself on appeal.  Its Medicaid census was 90%; its annual shortfall was $250,000; and it relied on charitable contributions for its continuing viability.  Citing inadequate financial documentation, the Board concluded that the facility had not established that additional resources would not be available.

Here, the facility does not rely on charitable contributions to keep it afloat.  It claims that its census is down, and paying the penalty jeopardizes its ability to offer competitive pay and benefits to staff or give pay increases to current staff.  Paying the penalty “negatively impacts” the facility’s ability to accept residents with complex medical needs.  Petitioner claims that it currently is using all of the facility’s income for day-to-day operations and has no discretionary funds.  It complains of increased costs, including liability insurance.  P. Ex. 39 at 1-2 (Shelton Decl.).  This does not meet the standard for lowering the CMP.

Moreover, as CMS points out – and Petitioner does not deny – the facility is part of a network of 12 facilities run by Transition Health Services.  CMS Ex. 30 at 8 (McElroy Decl.¶ 3), citing https://www.transitionhealth.net (last visited June 9, 2023).  In fact, Chana Shelton, whose written declaration describes (in part) the facility’s financial status, is Transition Health’s chief financial officer.  She does not explain the exact relationship between the facility and Transition Health.  That it is part of a larger enterprise indicates that the facility has an additional source of revenue that could be used to pay the penalty.  Such additional resources cannot be ignored.  To do so “could ‘be an open invitation for skilled nursing facilities to avoid paying’ CMPs by encouraging them ‘to contend that they must be treated as isolated facilities regardless of the financial wherewithal of the entity or individual that owns them along with other similar facilities.’”  Oceanside, DAB No. 2382 at 23 (citing Oceanside Nursing and Rehab. Ctr., DAB CR2269 at 17 (2011)).

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Applying the remaining factors, I have discussed in some detail the facility’s significant failure to provide R92 with the care she needed to maintain acceptable standards of nutritional status.  I find it more likely than not that these failings contributed to her dehydration and malnutrition, with the accompanying injury to her kidneys and dehydration-induced encephalopathy.  For these shortcomings, the facility is culpable and substantial penalties are justified.  I therefore conclude that the low-end penalties imposed are not unreasonably high.

Conclusion

From August 1, 2020, through March 14, 2021, the facility was not in substantial compliance with Medicare program requirements, and the penalties imposed are reasonable.

---

Endnotes

¹   Petitioner has limited its appeal to this deficiency, claiming, incorrectly, that CMS based the CMPs (the only remedies imposed) on the G-level deficiency alone (discussed below).

²   Deciding a case based on the written record does not mean that it is decided without a hearing.  In reviewing administrative appeals, courts recognize that, by considering the evidence and applying the law, the ALJ has granted the petitioner a hearing, even if that hearing was not an “oral” or “evidentiary” hearing.  See CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”).

³   CMS points out that Petitioner did not comply with my standing order, which directs Petitioner to file its objections “in a document separate from its brief.”  CMS Response at 1 n1; see Standing Order at 5 (¶ 7) (emphasis in original).  This is one of many instances in which Petitioner disregarded my order.  I nevertheless consider the objection as if it had been submitted properly.

⁴  My standing order directs the parties to cite the “exhibit number and page number” of any exhibit upon which it relies.  Standing Order at 3 (¶ 4c(1) (emphasis added).  Petitioner disregarded these explicit instructions.

⁵   As discussed below, penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, April 28, 2021.  CMS Ex. 1; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).

⁶   My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

⁷   The regulations governing long-term care facilities were revised in October 2016, and the quality-of-care regulation, 42 C.F.R. § 483.25, was reconfigured.  81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (July 13, 2017).  The substance of the regulation did not change, however, so decisions that predate the regulatory changes remain valid.

⁸   According to R92’s physician, Thomas Buzbee, M.D., he ordered speech therapy for R92 in August 2020, which was when he was first notified of R92’s weight loss.  P. Ex. 29 at 2 (Buzbee Decl.).  Inasmuch as he had ordered nutritional supplements as early as May 2020 (CMS Ex. 20 at 24), this seems unlikely.  If true, it would not reflect well on the facility since, by August, R92 had lost 19 pounds.  CMS Ex. 20 at 57; P. Ex. 4.  Dr. Buzbee also says speech therapy was subsequently discontinued at the family’s request.  P. Ex. 29 at 2 (Buzbee Decl.).

⁹   The omission is significant because R92 lost eight pounds (5.9% of her body weight) between July and August 2020.  P. Ex. 4; see also CMS Ex. 21 at 2, 5 (requiring that any weight loss of 5% or more be reported to the employee’s nursing supervisor, the dietician and the resident’s physician).  As discussed, the facility’s registered dietician was unaware of this loss.

¹⁰   Because of the COVID pandemic, visits to the facility were kept to a minimum.