Beecher Manor Nursing and Rehab Center, DAB CR6336 (2023)

DECISION

Beecher Manor Nursing and Rehab Center, (Petitioner or the facility) is a skilled nursing facility located in Beecher, Illinois, that participates in the Medicare program.  On June 10, 2021, a complaint inspection was conducted at the facility by the Illinois Department of Public Health (IDPH).¹ Centers for Medicare and Medicaid Services (CMS) Exhibit (Ex.) 25.  On October 6, 2021, Petitioner was notified by CMS that it was not in substantial compliance with 42 C.F.R. § 483.24(a)(3), Tag F0678, Cardio-Pulmonary Resuscitation, at the immediate jeopardy level from April 17, 2021, through April 22, 2021, and remained not in substantial compliance at severity level 2 through June 24, 2021.  CMS Ex. 3.  CMS imposed an $11,395.00 per day civil money penalty (CMP) for five days beginning April 17, 2021 and continuing through April 21, 2021, for a subtotal

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of $56,975.00, and a CMP of $435.00 per day for 64 days, beginning April 22, 2021, and continuing through June 24, 2021, for a subtotal of $27,840.  Id. at 2.  The total CMP accrued was $84,815.00.²  Id.  Petitioner filed a timely request for hearing (RH) on December 6, 2021.

I.  Background

The Social Security Act (Act) sets forth requirements for nursing facility participation in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing the 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 with program participation requirements.  Act § 1864(a); 42 C.F.R. § 488.20.  The regulations require that each facility be surveyed once every twelve months, and 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.

In this case, a surveyor from the IDPH completed a complaint investigation survey on June 10, 2021.  CMS Ex. 1.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with federal requirements for nursing homes participating in the Medicare and Medicaid programs, and a deficiency existed which posed immediate jeopardy to resident health and safety.  Specifically, CMS found that the facility did not meet federal requirements under 42 C.F.R. § 483.24(a)(3) (Tag F678 – Cardio-Pulmonary Resuscitation).  CMS imposed a total CMP of $84,815.00 for this deficiency.

Petitioner timely requested a hearing.  On December 8, 2021, Judge Leslie A. Weyn issued a Standing Prehearing Order, setting forth prehearing procedures.³  Both parties filed their prehearing exchanges, including prehearing briefs.  In its brief, CMS filed a motion for summary judgment (CMS PH Br.).  Petitioner filed a responsive brief, in

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which it opposed summary judgment (P. PH Br.).  With its motion and brief, CMS has submitted 26 proposed exhibits, including the written direct testimony of the surveyor.  CMS Exhibits (Exs.) 1-26.  In a submission entitled “Petitioner Beecher Manor Nursing’s Exhibit List,” Petitioner indicated it did not have additional exhibits to submit and, instead, “adopts and incorporates CMS Exhibits 1-18 and 23-25, as if fully set therein.”  While Petitioner did not adopt or even reference all of the proposed exhibits from CMS, it also has not cited any specific objections to any of those exhibits, including CMS Exs. 19 through 22 and CMS Ex. 26.  Given the Standing Prehearing Order of Judge Weyn requiring the parties to file objections to proposed exhibits with their prehearing exchanges and absent any specific objections from Petitioner, I admit CMS Exs. 1-26 into the record.

Petitioner has not affirmatively requested to cross examine CMS’s witness.  As a result, a hearing to cross examine that witness is not necessary and the decision will be issued based on the written record.⁴  Standing Prehearing Order ¶¶ 9, 10, 12.

II.  Issues

1) Whether the facility was in substantial compliance with 42 C.F.R. § 483.24(a)(3);

2) If the facility was not in substantial compliance with 42 C.F.R. § 483.24(a)(3), whether CMS’s determination that the noncompliance immediately jeopardized the health and safety of the facility’s residents was clearly erroneous; and

3) If the facility was not in substantial compliance, are the penalty amounts imposed reasonable?

III.  Discussion

1. The facility was not in substantial compliance with 42 C.F.R. § 483.24(a)(3) and did not return to substantial compliance before June 25, 2021.

42 C.F.R. § 483.24 provides that quality of life is a fundamental principle that applies to all care and services provided to facility residents.  Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, consistent with the resident’s comprehensive assessment and plan of care.  Under this regulation, the facility must provide basic life support, including CPR, to a resident requiring such emergency care, subject to related physician orders and the resident’s advance directives.  42 C.F.R. § 483.24(a)(3).

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The facts in this case are not in dispute.  Resident 1 (R1), a 94-year-old woman, was admitted to the facility on April 7, 2021, with diagnoses that included pleural effusion, dysphagia, wedge compression fracture of T11-T12, acute on chronic congestive heart failure, and hypertensive chronic kidney disease.  CMS Ex. 6.  No cognitive problems were noted on the Brief Interview for Mental Status test.  CMS Ex. 7.  On April 8, 2021, the IDPH Uniform Practitioner Order for Life-Sustaining Treatment (POLST) Form was completed by all necessary parties.  CMS Ex. 8 at 3.  In this form, R1 selected the option entitled “Do Not Attempt Resuscitation/DNR.”⁵  Id.  On April 9, 2021, a form entitled IDPH/DNR was uploaded to her file through the MatrixCare system.  CMS Ex. 8 at 1.  Facility progress notes dated April 8, 2021, indicated R1 was “a DNR with selective treatment.”  CMS Ex. 9 at 12.  A Social Services progress note dated April 11, 2021, stated “[a]dvance directives were reviewed.  DNR POLST on file.  Resident reports she would like to remain a DNR at this time.”  Id. at 5.

Resident Progress Notes indicate that on April 17, 2021, at 2:49 AM, R1 was observed to be resting in bed, with no shortness of breath or signs or symptoms of distress observed.  When Ronda Brown, LPN, entered R1’s room at 4:15 AM, however, R1 stated she was having a hard time breathing.  The LPN indicated R1’s oxygen saturation (SPO2) was 66, so oxygen was increased and a breathing treatment was given.  Oxygen saturation was then measured at 52.  Another nurse was called and R1 was described as unresponsive.  911 was called and CPR was initiated, according to the nursing note.  CMS Ex. 9 at 1.

At 5:10 AM, EMS arrived and found facility staff doing CPR.  CPR was stopped to allow for a pulse check or breathing.  The EMS crew asked the facility staff if the patient was a full code or DNR.  Facility staff reported that they were “NOT SURE IF THERE IS A DNR.”  CPR was again started with facility staff, who were asked again if there was a DNR order but the reply was the same.  According to the EMS narrative, the EMS crew was getting ready to move R1 to a cot when another facility staff member found a DNR.  EMS staff indicated they were ready to discontinue CPR but were informed that R1 had resumed breathing.  She was then loaded into the ambulance and admitted to the hospital, remaining unresponsive but taking a few breaths on her own.  CMS Ex. 10 at 3.

R1 remained intubated and maintained on ventilator support during the hospitalization with EEG evidence of moderate to severe anoxic encephalopathy.  Decerebrate posturing and focal seizures were noted.  The breathing tube was subsequently removed in a compassionate extubation/withdrawal of life support.  CMS Ex. 11 at 1, 14, 19.  R1 died on April 23, 2021.

A subsequent investigation by the facility included a statement from Ronda Brown, LPN, who reported that R1 informed her she was having a hard time breathing.  She said she

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turned up the oxygen and got a nebulizer treatment.  Ms. Brown indicated she then asked Sally to assist while she went to see what R1’s code status was.  Ms. Brown indicated she first looked into the computer and it was not there.  She then looked in the advance directive binder and it was not located in the binder.  Ms. Brown then stated she called 911 and started CPR.  While CPR was being performed, a facility staff person (the Admission Coordinator) came into the room, questioned the CPR, left and located the POLST form under the “H” tab in the Advance Directive Binder.  Ms. Brown explained that she must have looked under the “A” tab, rather than the “H” tab, in the Advance Directive Binder but noted that “it was not uploaded in the chart.”  CMS Ex. 13 at 2.

As part of the facility investigation, Sally Grubermann, RN, provided a statement in which she indicated she was in the room with R1 when Ms. Brown returned and indicated she could not find the code status in the binder.  CMS Ex. 13 at 3.  R1 then became unresponsive and they initiated CPR.  CMS Ex. 13 at 3.  Jennifer Becker, Admission Coordinator, provided a statement during the investigation indicating that she observed the crash cart outside the resident’s room and knew that the resident was a DNR because she had just done the admission paperwork for her.  CMS Ex. 13 at 4.  She entered the room, told the nurses R1 was a DNR, left to retrieve the POLST form from the binder under the “H” tab, and then provided it to the paramedics.  CMS Ex. 13 at 4.  The conclusion of the investigation was that the POLST system functioned in accordance with prescribed procedures because the advance directive was in the binder at the time of the incident and the nurse made an error by looking in the binder under “A,” the first letter of R1’s first name, rather than “H,” the first letter of her last name.  CMS Ex. 13 at 1.

Following its investigation, the facility reported in-servicing facility nurses on the location of the POLST forms, a full house audit of Advanced Directives, a weekly audit of the Advanced⁶ Directive binders, identifying procedures on admission for discussion of advanced directives with residents, in-servicing of new hire nurses, and having the Director of Nursing (DON) complete an investigation after any death or code blue event to determine if facility policy was followed regarding Advanced Directives.  An emergency Quality Assurance (Q/A) meeting was also reported to review the correction plan.  CMS Ex. 23.

The parties do not dispute that R1 had a valid DNR form on file at the facility, which was not honored on April 17, 2021, when she was given CPR against her expressed wishes.  CMS Exs. 8, 9.  Petitioner initially appears to make the argument that a third party did not honor the DNR.  In the RH, Petitioner asserted that the “facility was in compliance because it provided the EMTs with the DNR prior to the EMTs leaving the facility.”  In its prehearing brief, Petitioner similarly alleges that it did provide the DNR form to the EMTs and “if the hospital placed R1 on a ventilator, that had nothing to do with Beecher

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Manor, as the correct code status of R1 was provided prior to R1’s arrival at the hospital.”  P. PH Br. at 1.  However, as discussed above, both facility nursing notes and EMS records indicate that CPR was initiated by facility staff prior to the arrival of the EMS.  As a result, the fact that the EMTs were provided a copy of the DNR form or that the hospital provided life-saving care after the fact is not relevant to the issues before me.  The question here is whether the facility provided care that was not consistent with R1’s advance directive.

Petitioner also indicated that it did not deny the above facts and the related conclusion that the facility did not honor R1’s DNR election.  It conceded that “[t]he facts surrounding the deficiency are that R1 received CPR when she went into respiratory distress, despite R1 being DNR.”  P. PH Br. at 1.  Instead, it argues that it “should be afforded past non-compliance status” because all licensed staff had been in-serviced, auditing of binders was completed, and QA monitoring had been conducted before the June 10, 2021 survey.  P. PH Br. at 3.  Because Petitioner failed to provide care in accordance with the resident’s advance directive, I conclude that the facility was out of substantial compliance with 42 C.F.R. § 483.24(a)(3).

Petitioner’s dispute centers on when it was determined to be in substantial compliance.⁷  CMS determined that the immediate jeopardy to resident health and safety was removed on April 22, 2021, but the facility continued to not be in substantial compliance at severity level 2 through June 24, 2021.  CMS Ex. 3.  Petitioner strenuously disagrees with this assessment, asserting that all necessary training was done by April 21, 2021, an emergency QA meeting was held on April 22, 2021, and all necessary audits were completed by April 19, 2021.  P. PH Br. at 4.⁸

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Once a facility has been found to be out of substantial compliance, it remains so until it affirmatively demonstrates that it has achieved substantial compliance once again.  Ridgecrest Healthcare Ctr., DAB No. 2493 at 2-3 (2013); Taos Living Ctr., DAB No. 2293 at 20 (2009); Premier Living & Rehab. Ctr., DAB No. 2146 at 3 (2008); Lake City Extended Care, DAB No. 1658 at 12-15 (1998).  The burden is on the facility to prove that it is back in compliance, not on CMS to prove that deficiencies continued to exist.  Asbury Care Ctr. at Johnson City, DAB No. 1815 at 19-20 (2002).

In the Statement of Deficiencies (SOD), the IDPH indicated that while the immediate jeopardy was removed on April 22, 2021, “the facility remains out of compliance at Severity Level II due to the need to train all staff, and to implement policies and Quality Assurance monitoring.”  CMS Ex. 1 at 2.  CMS asserts that the ongoing noncompliance was due to continuing problems related to facility policies regarding POLST forms and the lack of training for all staff.  CMS PH Br. at 12.  Each of these areas of alleged ongoing noncompliance is considered separately.

Lack of Training for All Staff

The facility policy entitled “Do-Not-Resuscitate Directives” provides that a copy of the DNR form “will be placed in the resident’s medical record under the ‘Advanced Directives’ tab.  Advanced directives are not effective until a copy is provided to the facility and made a part of resident’s medical record.”  CMS Ex. 12 at 1.  A separate facility policy entitled “ADVANCE DIRECTIVES” also stated that copies of the advance directive documents “will be filed/uploaded in the resident’s clinical record.”  CMS Ex. 14 at 1.  This policy statement further indicated that “[f]or staff not having access rights to the resident’s clinical record, the resident’s advanced directive is maintained on the nursing unit and available to staff members for reference to and consideration of in rendering care and services to residents to whom they are assigned for duty.”  Id. at 2.

The problems in this case occurred because staff members were unable to locate R1’s DNR form in a timely manner.  Initially, as discussed above, the LPN in the room with R1 looked in the computer for R1’s code status and when she could not find it, she looked in the advance directives’ binder and could not find it there.  CPR was then initiated.  CMS Ex. 13 at 2.  She subsequently acknowledged that she may have looked under the “A” tab, rather than the “H” tab, in the advance directives binder.  Id.  Petitioner characterizes this as a “single instance of human error in an emergent situation where split second decision making is required.”  P. PH Br. at 5.  Were this a situation where the only error was looking up the first name, rather than the last name, it might be considered a “single instance of human error.”  Unfortunately, there was a second, compounding error made when R1’s DNR form was entered into the EMR under the incorrect tab.  As noted above, it was not filed under the “Advanced Directives” tab in her medical record and instead had been placed under the “Resident Forms” tab.  CMS

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Ex. 19 at 1.  Had the LPN been able to locate the DNR form when she first looked in the EMR, this tragic situation could perhaps have been avoided.

Petitioner then asserts that these deficiencies were immediately addressed with in-service training with staff.  It argues that the necessary training “was provided to all nursing staff and all licensed clinical staff” and there was nothing in CMS guidelines or regulations or in its own internal policies to require that non-clinical or non-licensed staff be trained on advanced directives and code status.  P. PH Br. at 2-3.

In considering whether it was necessary to train all staff in order to be in full compliance, I initially note that the facility’s own policy includes the provision that “[f]or staff not having access rights to the resident’s clinical record, the resident’s advanced directive is maintained on the nursing unit and available to staff members for reference.”  CMS Ex. 14 at 2.  Thus, the facility’s internal policy itself envisions a need for all staff members, even those who could not access a resident’s clinical record, to know how and where to locate a resident’s advance directive.  Ironically, it was not a nurse or licensed clinical staff person who ultimately located R1’s DNR order.  Rather, it was the Admission Coordinator who observed the situation with R1 and was able to locate the POLST form in the binder because she remembered seeing it during the admission.  CMS Ex. 1 at 3-4; CMS Ex. 13 at 4.  It is not difficult to imagine, in a facility serving elderly, fragile individuals, that emergencies could arise at any time and in front of any staff member, including “housekeeping, maintenance staff, [or] cooks,” as referenced by Petitioner.  P. PH Br. at 2.  Therefore, the need to know where DNR forms were located and how to access them would be essential for all facility staff.

Additionally, it would be imperative for DNR forms to be uploaded to the EMS in a timely manner in order to protect facility residents from unwanted treatment.  As noted above, the facility policy on advance directives provided that they were not effective until a copy of the form was provided to the facility and “made a part of resident’s medical record.”  CMS Ex. 12 at 1 (emphasis added).  The complication here is that, prior to the survey, POLST forms were uploaded to the resident’s EMR by the Health Information Management Coordinator (HIMC), who worked Monday through Friday, 8:30 AM to 5:30 PM.  CMS Ex. 21 at 15-16.  If residents were admitted before or after those hours or on the weekend, any DNR forms they provided would not be scanned into their record until the HIMC returned to work.  As the HMIC stated to the surveyor, if a resident was admitted over the weekend, “they are full code until Monday when I get here.”  CMS Ex. 26 at 3 (citing CMS Ex. 21 at 16).  The Social Service Director similarly stated that “if a nurse put a POLST form in the ‘to scan’ box after hours or on the weekend it might not be found until Monday morning.”  CMS Ex. 26 at 3-4 (citing CMS Ex. 21 at 18).  As a result, it was necessary for the facility to train additional staff, including non-clinical and non-licensed staff, who would be able to promptly scan DNR forms into the EMS.  This was not accomplished until after the survey, when the plan of correction indicated that the “DON, ADON, Infection Control Preventions, MDS Nurse, Director of Social

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Service, Director of Admission Director of Recreational Services” were in-serviced on procedures to upload the POLST forms into the clinical record when the HIMC was not on site.  CMS Ex. 1 at 2-3.

Finally, the apparent lack of training of non-licensed staff on correct placement of DNR forms in the EMR contributed to the unfortunate errors in the unwanted treatment of R1.  V13, a non-licensed Medical Records Assistant, was the staff person who uploaded R1’s form into the EMR incorrectly.  CMS Ex. 21 at 14-15.  She reported that she had been hired to fill in for the HIMC while she was on medical leave but had not been adequately trained to do this work.  CMS Ex. 21 at 14.  She reportedly indicated that if she had been properly trained, the DNR form would have been in the right place.  Id.  It was not until the time of the survey that the HIMC was re-in-serviced regarding the uploading of directives in accordance with facility policy.  CMS Ex. 1 at 2.  Thus, the training of all facility staff was necessary to ensure that residents’ end of life wishes were honored, consistent with the requirements of 42 C.F.R. § 483.24(a)(3).  It is ultimately unavailing for Petitioner to argue that it did not have to train non-licensed staff on where to find DNR forms in the EMR when it relied on non-licensed staff to file DNR forms in the proper location in the EMR.  Because the facility relied on non-licensed staff to organize and file DNR forms in the proper place, it necessarily must train such staff on the correct placement.  As a result, Petitioner’s argument that it was not necessary to train all staff to achieve substantial compliance is not persuasive.

Facility Policies regarding POLST or DNR forms

Petitioner asserts that it was inaccurate to conclude that it “failed to QA monitor the DNR election statuses of residents,” citing an emergency QA session to discuss the incident in question on April 18, 2021, an audit of DNR binders and the electronic medical record system, and weekly audits of all DNR papers by Social Services.  P. PH Br. at 3.  However, as noted by the IDPH, at the time of the survey, “there was still not an appropriate QA system in process to assure POLST forms were in the appropriate places.”  CMS Ex. 25 at 2.

The question here is whether the facility’s actions after the April 17, 2021 incident involving R1 were sufficient to ensure that another resident would not receive unwanted resuscitation.  To begin, as discussed extensively above, the failures in R1’s case began when her DNR form was uploaded to her electronic medical file and incorrectly placed under the “Resident Forms” tab, rather than the “Advanced Directives” tab.  CMS Ex. 19 at 1.  This costly error contributed to the unwanted resuscitation efforts made on R1.  Petitioner alleges that this problem was addressed with the subsequent audit it conducted of “the DNR binders and EMR (electronic medical record) system (Matrix) on 4/17/21” and with “routine audits being performed weekly, quarterly, upon every admission/re-admission of a resident, and upon a significant change in condition of the resident.”  P. PH Br. at 3-4.

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In considering the adequacy of the audits conducted following the incident with R1, I note that the Beecher Manor Removal Plan dated April 17, 2021, does not specifically indicate that the electronic medical records were audited on that date.  CMS Ex. 23.  The Removal Plan does reference a “full house audit of Advanced Directives” on April 17, 2021, but with the notation that “[t]his included a review of the Advanced Directive paper binder to ensure each resident had either Advanced Directives or a Declination filed.  Any required corrections were immediately made.”  Id. at 1.  However, taking Petitioner’s statement at face value, the one-time audit of EMRs on April 17, 2021, and the “routine audits” thereafter were not sufficient to ensure that DNR forms were promptly and correctly entered into residents’ electronic records.  During the survey, V11, LPN and Minimum Data Set Coordinator, indicated she was the person responsible for auditing the EMRs and she only did so when doing resident assessments, which are done on admission, with any significant changes, and quarterly.  CMS Ex. 1 at 10; CMS Ex. 21 at 19.  She indicated the audit did not involve looking at the specific tabs the documents were filed under.  CMS Ex. 21 at 19.  As noted above, the review of R1’s EMR at the time of the survey indicated the advanced directive was not moved to the correct location until June 2, 2021, at the time of the IDPH survey.  CMS Ex. 1 at 7; CMS Ex. 19 at 1.  It was not until after the survey that quality assurance plans for auditing both the advanced directive binders and the EMR three times a week were established.  CMS Ex. 1 at 3.  Prior to this time, there was no evidence of a quality assurance plan in place to guarantee that DNR forms would be correctly filed in the proper location in a resident’s EMR.  The tragic consequences of the failure to do so are readily apparent from this case.  R1 had the right to refuse resuscitation.  Petitioner violated that right because it did not properly file R1’s DNR order in the EMR as specified by its policy, resulting in the unwanted resuscitation.  Therefore, I conclude that Petitioner did not return to substantial compliance with 42 C.F.R. § 483.24(a)(3) prior to June 25, 2021.

2. CMS’s determination that the facility’s substantial noncompliance posed immediate jeopardy to resident health and safety is not clearly erroneous. 

Immediate jeopardy exists if a facility’s noncompliance has caused or is likely to cause “serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.  CMS’s determination as to the level of a facility’s noncompliance, which would include an immediate jeopardy finding, must be upheld unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The Board has observed repeatedly that the “clearly erroneous” standard imposes on facilities a “heavy burden” to show no immediate jeopardy and has sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  Barbourville Nursing Home, DAB No. 1962 (2005) (citing Florence Park Care Ctr., DAB No. 1931 at 27‑28 (2004)); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9 (2007).

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Except to argue that it was in substantial compliance with Medicare program requirements, Petitioner does not challenge CMS’s immediate jeopardy finding.  I have discussed in detail why the facility was not in substantial compliance.  Here, Petitioner’s actions caused serious harm and impairment to R1 and created a risk for serious harm to other residents of the facility.  In addition to the trauma experienced by R1 from having CPR administered after electing not to have this done to her, she subsequently was comatose and maintained on ventilator support for several days secondary to anoxic encephalopathy.  CMS Ex. 11.  As her daughter reported, R1 did not want to be on any machine and yet she was placed on a ventilator for six days, with seizures, brain damage, and unknown levels of pain.  CMS Ex. 20 at 2.  She then reportedly suffered for over 13 hours as she struggled to breath on her own at the end.  Id.  For the above reasons, it is critical that a facility honor a resident’s DNR request.  Noncompliance with one of these requests is likely to and, in this case, did cause serious physical and psychological harm.

Based on the above evidence, I find that CMS’s determination that the deficiencies posed immediate jeopardy to resident health and safety was not clearly erroneous.

3. The penalties imposed are reasonable in amount and duration. 

In the Request for Hearing, Petitioner contests the “amount of the CMP,” characterizing it as “excessive and way in excess of what a CMP should be for the alleged deficiency.”  Given this challenge to the reasonableness of the CMP, I have examined this issue by applying the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the 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.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i-3(h)(2)(B)(ii)(I).  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f).  The factors listed 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.  See 42 U.S.C. §§ 1320a-7a(d)(1), (3), 1395i-3(h)(2)(B)(ii)(I).

CMS imposed an $11,395.00 per-day civil money penalty for each day of immediate jeopardy (April 17, 2021 through April 21, 2021), which is in the middle range for a per-day civil money penalty resulting in immediate jeopardy ($6,808 to $22,320).  42 C.F.R. §§ 488.408(e)(1)(iii); 488.438(a)(1)(i).  For the non-immediate jeopardy period (from April 22, 2021 through June 24, 2021), CMS imposed a $435.00 per-day civil money penalty, which is in the low end of the penalty range for findings of substantial noncompliance that do not pose immediate jeopardy ($112 to $6,695).  42 C.F.R. §§ 488.408(d)(1)(iii); 488.438(a)(1)(ii); 45 C.F.R. § 102.3; 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020).  These amounts are modest when measured against the maximum allowable amount in each range.

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Petitioner has not presented any specific argument addressing the factors cited in the regulation for assessing the reasonableness of the CMP.  Petitioner failed to argue that any of the factors support a reduction of the CMP amount.  Because of the presumption that CMS has considered the regulatory factors in setting the amount of the CMP and that those factors support the CMP amount imposed by CMS, unless a facility contends that a particular regulatory factor does not support the civil money penalty amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 at 32 (2002).  On that basis, I could conclude that the CMP amount is reasonable.  However, even applying the regulatory factors, I find that the CMP is reasonable.

Petitioner did not argue that its financial condition affects its ability to pay the civil money penalty.  I also note that Petitioner has a high level of culpability and the deficiency was serious; unwanted medical treatment was forced on a resident with traumatic consequences, and the facility did not have a system in place to ensure that this did not happen to other residents.  Based on the above factors, I find the penalties are reasonable.

IV.  Conclusion

For the reasons discussed above, I find that the facility was not in substantial compliance with the Medicare requirements at issue during the period from April 17, 2021, through June 24, 2021, its deficiencies during the period from April 17, 2021, through April 21, 2021, posed immediate jeopardy to resident health and safety, and I affirm, as reasonable, the penalties imposed.

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Endnotes

¹  The inspection on June 10, 2021, was a revisit to investigate a complaint allegation, following an inspection on May 14, 2021.  Deficiencies were identified and remedies proposed in an Initial Notice from IDPH dated June 24, 2021.  CMS Ex. 2 at 1.  The hearing request filed in response to the June 24, 2021 notice, docket number C-21-1005, was consolidated with a later request for hearing filed in response to the CMS Notice dated October 6, 2021, docket number C-22-150, in a Consolidation Order dated December 13, 2021.

²  A Discretionary Denial of Payment for New Admissions and Mandatory Termination did not go into effect because the facility was determined to have been in substantial compliance as of June 25, 2021, following a revisit survey.  CMS Ex. 3 at 2.

³  This case was reassigned to me on May 18, 2023.

⁴  Because no hearing is necessary, I will not rule on the motion for summary judgment filed by CMS.

⁵  The terms POLST form and DNR form are used interchangeably in this decision.  It is understood that both refer to the election of a Do Not Resuscitate option on the Practitioner Order for Life Sustaining Treatment form.

⁶  The facility has used the terms Advance Directive and Advanced Directive interchangeably in this record.  See CMS Exs. 23, 14.  It is presumed that these terms refer to the same document, i.e., the POLST/DNR form.

⁷  Petitioner argues that because its immediate jeopardy level noncompliance ended prior to the survey of its facility on June 10, 2021, it should be awarded “past noncompliance status.”  P. PH Br. at 5.  While the significance of “past noncompliance status” to the issues before me wasn’t specified by Petitioner, it must be noted that any such status has no bearing on the ability of CMS to impose penalties for “past noncompliance”, i.e., noncompliance that occurred after the last standard survey and before the current survey. See, e.g., Aase Haugen Homes, Inc., DAB No. 2013 (2006); Daughters of Miriam, DAB No. 2067 at 14 (2007) (“[T]he regulations permit CMS to find immediate jeopardy and impose a CMP based on “past noncompliance” (that is, noncompliance that occurred but was corrected prior to the survey).”); Hallmark House Nursing Center, DAB No. 2226 at 13 (2009).

⁸  Petitioner does not indicate the specific date when it believes it was in substantial compliance following the April 17, 2021 incident involving R1.  However, in light of the discussion below finding that it was not in substantial compliance until June 24, 2021, this is not particularly significant.