Morningside Manor, DAB CR6353 (2023)

DECISION

Petitioner, Morningside Manor, challenges the determination by Respondent, the Centers for Medicare & Medicaid Services (CMS), that it was not in substantial compliance with Medicare program participation requirements.  Petitioner also challenges CMS’s imposition of a $9,030 per-day civil money penalty (CMP) from May 6 through May 17, 2019 and a $415 per-day CMP from May 18 through June 9, 2019, for a total CMP of $117,905, as unreasonable. 

As explained herein, I conclude CMS’s immediate jeopardy determination was not clearly erroneous.  I overturn the finding of deficiency based on noncompliance with 42 C.F.R. § 483.24(c)(1).  The remaining deficiencies are sufficient to justify the CMPs imposed in this case. 

I.     Background

Morningside is a skilled nursing facility (SNF) located in San Antonio, Texas participating in the Medicare program.  CMS Exhibit (Ex.) 1 at 1.  Surveyors from the Texas Health and Human Services Commission (THHSC or state agency) completed an annual survey and complaint investigation at Petitioner’s facility on May 17, 2019.  Id.

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THHSC found the facility was not in substantial compliance with 15 Medicare program requirements: 

• 42 C.F.R. § 483.20(g) (Tag F641);
• 42 C.F.R. § 483.21(a)(1)-(3) (Tag F655);
• 42 C.F.R. § 483.21(b)(1) (Tag F656);
• 42 C.F.R. § 483.21(b)(3)(ii) (Tag F659);
• 42 C.F.R. § 483.24(c)(1) (Tag F679);
• 42 C.F.R. § 483.25(d)(1), (2) (Tag F689);
• 42 C.F.R. § 483.25(i) (Tag F695);
• 42 C.F.R. § 483.25(n)(1)-(4) (Tag F700);
• 42 C.F.R. § 483.60(i)(1), (2) (Tag F812);
• 42 C.F.R. §§ 483.20(f)(5), 483.70(i)(1)-(5) (Tag F842);
• 42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f) (Tag F880);
• 42 C.F.R. § 483.73(d)(2) (Tag E0039);
• Life and Safety Code (LSC) §§ 19.3.5.1, 19.3.5.2, 19.3.5.3, 19.3.5.4, 19.3.5.5, 19.4.2, 19.3.5.10, 9.7, 9.7.1.1(1) (Tag K351);
• LSC §§ 9.7.5, 9.7.7, and 9.7.8 (Tag K353); and
• LSC §§ 10.2.3.6 and 10.2.4 (Tag K920).

Id.  The state agency cited Tag F880 at scope and severity level¹ “J,” meaning an isolated instance of noncompliance that poses immediate jeopardy to resident health and safety.  Id.; SOM Ch. 7, § 7400.5.1 at 92-93.  It cited Tags F812 and E0039 at level “F,” Tags F641, F656, F700, K351, K353, and K920 at level “E,” and the remaining six deficiencies at level “D.”  Id. 

Based on these deficiency findings, CMS notified Petitioner it would impose a $9,030 per-day CMP for 12 days from May 6 through May 17, 2019 and a $415 per-day CMP beginning May 18, 2019 and continuing until further notice.  Id. at 2.  CMS also advised Petitioner it would impose a denial of payment for new admissions (DPNA) beginning June 15, 2019 and terminate Morningside’s Medicare provider agreement if Morningside did not return to substantial compliance before November 17, 2019.  Id.

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On August 1, 2019, CMS notified Morningside it found the facility returned to substantial compliance on June 10, 2019.  CMS Ex. 2 at 1.  CMS rescinded the DPNA and termination of Petitioner’s Medicare provider agreement.  Id.  CMS confirmed the $415 per-day CMP continued through June 9, 2019, resulting in a total CMP of $117,905.  Id. 

Petitioner timely sought hearing before an Administrative Law Judge (ALJ) in the Civil Remedies Division to challenge CMS’s determination of noncompliance with program requirements and the imposition of the $117,905 per‑day CMP.  Petitioner appealed the following deficiencies: 

• 42 C.F.R. § 483.20(g) (Tag F641);
• 42 C.F.R. § 4832.21(a)(1)-(3) (Tag F655);²
• 42 C.F.R. § 483.21(b)(1) (Tag F656);
• 42 C.F.R. § 483.21(b)(3)(ii) (Tag F659);³
• 42 C.F.R. § 483.24(c)(1) (Tag F679);
• 42 C.F.R. § 483.25(d)(1), (2) (Tag F689);
• 42 C.F.R. § 483.25(i) (Tag F695);
• 42 C.F.R. § 483.25(n)(1)-(4) (Tag F700);
• 42 C.F.R. § 483.60(i)(1), (2) (Tag F812);
• 42 C.F.R. §§ 483.20(f)(5), 483.70(i)(1)-(5) (Tag F842); and
• 42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f) (Tag F880).

P. Req. for Hearing. 

I was designated to hear and decide this case and issued an Acknowledgment and Pre‑hearing Order (Pre-hearing order) that established a briefing schedule and directed the parties to file pre-hearing submissions that included written direct testimony for all proposed witnesses, proposed exhibits, and pre-hearing briefs. 

CMS filed a pre-hearing brief (CMS Br.) and 32 proposed exhibits (CMS Exs. 1-32) including written direct testimony for seven witnesses.  Petitioner filed a pre‑hearing brief (P. Br.) and 45 proposed exhibits (P. Exs. 1-45)⁴ including the written direct testimony of three witnesses.  Petitioner requested to cross-examine CMS’s witnesses.

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II.    Hearing and Admission of Exhibits

On May 12, 2021, I held a videoconference hearing to allow Petitioner to cross-examine CMS’s witnesses.  At the outset of the hearing, Petitioner withdrew its request to cross‑examine Priscilla Sanchez.  Tr. at 3.  CMS withdrew the written direct testimony for two of its witnesses, Lisa Woods-Stephens (CMS Ex. 29) and Renny Samuel‑Worsham (CMS Ex. 32).  Tr. at 4.  Petitioner clarified the deficiency at 42 C.F.R. § 483.21(b)(3)(ii) (Tag F659) was not pending before me because it had been resolved during the informal dispute resolution process.  Tr. at 7; see CMS Ex. 14 at 6. 

I overruled Petitioner’s objections to CMS’s exhibits and admitted CMS Exhibits 1 through 28, 30, and 31 into evidence.  Tr. at 10.  I also entered Petitioner’s Exhibits 1 through 11 and 13 through 45 into the record.  Id.  The parties subsequently filed post-hearing briefs (CMS Closing Br. and P. Closing Br.). 

III.  Issues

The issues presented are: 

1. Whether Morningside was in substantial compliance with 42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f) (Tag F880), and if not, whether CMS’s determination of noncompliance with 42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f) is clearly erroneous;
2. Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.20(g) (Tag F641); 42 C.F.R. § 483.21(a)(1)-(3) (Tag F655); 42 C.F.R. § 483.21(b)(1) (Tag F656); 42 C.F.R. § 483.24(c)(1) (Tag F679); 42 C.F.R. § 483.25(d)(1), (2) (Tag F689); 42 C.F.R. § 483.25(i) (Tag F695); 42 C.F.R. § 483.25(n)(1)-(4) (Tag F700); 42 C.F.R. § 483.60(i)(1), (2) (Tag F812); and 42 C.F.R. §§ 483.20(f)(5), 483.70(i)(1)-(5) (Tag F842); and
3. If Petitioner was not in substantial compliance with Medicare participation requirements, whether the per-day CMP amounts and duration selected by CMS are reasonable. 

IV.    Jurisdiction

I have jurisdiction to hear and decide this case.  42 U.S.C. § 1395i-3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).

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V.     Statutory and Regulatory Authority

The Social Security Act (Act) sets forth requirements for a SNF’s participation in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  42 U.S.C. § 1395i-3.  These implementing regulations are found at 42 C.F.R. Parts 483 and 488.  To participate in the Medicare program, a SNF like Morningside must maintain substantial compliance with program participation requirements.  To be in substantial compliance, a SNF’s deficiencies may “pose no greater risk to resident health or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301.  A deficiency is a violation of a participation requirement established by 42 U.S.C. § 1395i-3(b)-(d), or the Secretary’s regulations at 42 C.F.R. pt. 483, subpt. B.  Id.  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  Id. 

The Secretary contracts with state agencies to conduct periodic surveys to determine whether SNFs are in substantial compliance with the participation requirements.  42 U.S.C. § 1395aa(a); 42 C.F.R. § 488.10.  The Act also authorizes the Secretary to impose enforcement remedies against SNFs that are not in substantial compliance with program participation requirements.  42 U.S.C. § 1395i-3(h)(2).  The Secretary’s regulations specify the enforcement remedies that CMS may impose if a facility is not in substantial compliance.  42 C.F.R. § 488.406. 

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

If CMS imposes a CMP based on a determination of noncompliance, the facility may request a hearing before an ALJ to determine whether there was a basis for the deficiency findings that led to the imposition of the remedy and whether the CMP imposed was reasonable.  42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13).  However, the facility may not appeal CMS’s choice of remedies.  42 C.F.R. § 488.408(g)(2). 

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VI.    Burdens of proof and persuasion

Neither the Act nor its implementing regulations allocate the burden of proof or the quantum of evidence necessary to meet that burden.  In the context of a regulatory enforcement action, it would be reasonable to require the enforcing agency to establish by proof and persuasion that it was justified to impose penalties under the Act and its regulations.  Nevertheless, the Departmental Appeals Board has imposed a burden-shifting regime in cases involving the imposition of enforcement penalties against providers whose appeals are adjudicated under 42 C.F.R. Part 498.  Hillman Rehab. Ctr., DAB No. 1611 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Srvs., No. Civ. A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); VITAS Healthcare Corp. of Calif., DAB No. 1782 at 4 (2001); Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F. App’x 664 (6th Cir. 2005). 

Under that regime, CMS has the burden to come forward with evidence sufficient to make a prima facie showing⁵ it had a basis for termination.  In Hillman, the Board identified the elements it believed necessary for CMS to make such a showing: 

[CMS] must identify the legal criteria to which it seeks to hold a provider.  Moreover, to the extent that a provider challenges [CMS’] findings, [CMS] must come forward with evidence of the basis for its determination, including the factual findings on which [CMS] is relying and, if [CMS] has determined that a condition of participation was not met, [CMS’] evaluation that the deficiencies found meet the regulatory standard for a condition-level deficiency. 

DAB No. 1611 at 8. 

Once CMS makes a prima facie showing of noncompliance, Petitioner bears the burden of persuasion and must prove by a preponderance of the evidence of record that it substantially complied with statutory and regulatory requirements.  See Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F. App’x 664 (6th Cir. 2005).

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To date, federal district and circuit courts have declined to disturb this burden-shifting regime on due process or other grounds.  See, e.g., Hillman Rehab. Ctr., DAB No. 1611 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Srvs., No. Civ. A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); Fairfax Nursing Home, Inc., DAB No. 1794 (2001), aff’d, Fairfax Nursing Home v. Dep't of Health & Human Srvcs., 300 F.3d 835 (7th Cir. 2002), cert. denied, 2003 WL 98478 (Jan. 13, 2003); Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004), aff’d sub nom., Batavia Nursing & Convalescent Ctr. v. Thompson, 143 F. App’x 664 (6th Cir. 2005).  

The U.S. Supreme Court recently examined the scope of the Secretary’s rulemaking authority in the context of Medicare reimbursement and held that under section 1871 of the Act, the Secretary must comply with notice-and-comment rulemaking under the Administrative Procedure Act to impose any requirements upon regulated entities which constituted a change in a substantive legal standard.  Azar v. Allina Health Servs., 588 U.S. __, 139 S. Ct. 1804 (2019) at 1809-14.  It remains to be seen whether federal courts applying the Allina standard in reviewing the Board’s burden-shifting regime will find it constitutes a “change in a substantive legal standard” under the Allina holding or consider it a procedural mechanism within the Board’s delegated authority to impose as a reviewing body of ALJ decisions pertaining to CMS’s regulatory enforcement actions.  Until such judicial scrutiny demands otherwise, and absent modification of the Act or CMS’s implementing regulations, I apply the Board’s burden-shifting regime.  

VII.    Discussion

1. Petitioner did not substantially comply with 42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f) (Tag F880) when providing care and services to Resident 409.

CMS alleges Petitioner was not in substantial compliance with 42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f) at the immediate jeopardy level because Petitioner failed to place Resident 409, who had a methicillin-resistant Staphylococcus aureus (MRSA) infection, on droplet precautions upon his admission to the facility or use personal protective equipment (PPE) when providing care to him, in violation of the facility’s own policies on droplet precautions.  CMS Br. at 15; CMS Closing Br. at 2-5.  Petitioner responds that CMS has not established a prima facie case of noncompliance because CMS withdrew the testimony of the surveyor who cited Petitioner with the deficiency.  P. Closing Br. at 2-3, 19-20.  Petitioner otherwise contends droplet precautions were not necessary because Resident 409 did not actually have MRSA.  P. Br. at 16‑20; P. Closing Br. at 19.  Petitioner finally argues there was no risk of droplet transmission because no residents or staff were near Resident 409.  P. Br. at 19.  As discussed below, I reject these arguments and find Petitioner was not in substantial compliance with 42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f) because it did not maintain an infection prevention and control program to prevent the spread of MRSA.

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1. Regulatory framework

SNFs like Petitioner must establish and maintain an infection prevention and control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of communicable diseases and infections.  42 C.F.R. § 483.80.  This includes: 

(a) Infection prevention and control program. The facility must establish an infection prevention and control program (IPCP) that must include, at a minimum, the following elements:
(1) A system for preventing, identifying, reporting, investigating, and controlling infections and communicable diseases for all residents, staff, volunteers, visitors, and other individuals providing services under a contractual arrangement based upon the facility assessment conducted according to § 483.70(e) and following accepted national standards;
(2) Written standards, policies, and procedures for the program, which must include, but are not limited to:
(i)  A system of surveillance designed to identify possible communicable diseases or infections before they can spread to other persons in the facility;
(ii) When and to whom possible incidents of communicable disease or infections should be reported;
(iii) Standard and transmission-based precautions to be followed to prevent spread of infections;
(iv) When and how isolation should be used for a resident; including but not limited to:
(A) The type and duration of the isolation, depending upon the infectious agent or organism involved, and
(B) A requirement that the isolation should be the least restrictive possible for the resident under the circumstances. 
(v) The circumstances under which the facility must prohibit employees with a communicable disease or infected skin lesions from direct contact with residents or their food, if direct contact will transmit the disease; and
(vi) The hand hygiene procedures to be followed by staff involved in direct resident contact. 

                      *        *        *

(4) A system for recording incidents identified under the facility’s IPCP and the corrective actions taken by the facility. 

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                      *        *        *

(e) Linens. Personnel must handle, store, process, and transport linens so as to prevent the spread of infection. 
(f) Annual review. The facility will conduct an annual review of its IPCP and update their program, as necessary. 

42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f). 

2. MRSA and Morningside’s infection control policy

MRSA is resistant to antibiotics often used to treat Staphylococcus aureus infections.  CMS Ex. 16 at 1.  The Centers for Disease Control and Prevention (CDC) observes MRSA can cause severe problems, including bloodstream infections, pneumonia, surgical site infections, sepsis, and death, in healthcare settings such as nursing homes.  Id. at 3.  MRSA is typically spread through direct contact with an infected wound or from contaminated hands, usually those of healthcare providers.  Id. at 3, 5-6.  Asymptomatic carriers of MRSA can also spread the bacteria to others.  Id. at 3.  MRSA can also be spread through droplet transmission, another form of contact transmission.  Id. at 7. 

Respiratory droplets carrying infectious pathogens can also transmit infection when they travel directly from the respiratory tract of an infected individual to susceptible mucosal surfaces of the recipient, generally over short distances.  Id.  Respiratory droplets are generated when an infected person coughs, sneezes, or talks, or during procedures such as suctioning, endotracheal intubation, and cardiopulmonary resuscitation.  Id.  While the maximum distance for droplet transmission is currently unclear, the area of defined risk is less than or equal to three feet around the patient.  Id. 

MRSA can also be spread through indirect contact.  Id. at 6.  For example, healthcare personnel may transmit pathogens after touching an infected or colonized body site on a patient or contaminated inanimate object if they do not perform hand hygiene before touching another patient.  Id.  Patient-care devices such as glucose monitoring devices, instruments such as endoscopes, and contaminated clothing, uniforms, or isolation gowns used as PPE can also transmit bacterial and viral pathogens to successive patients.  Id. at 6-7. 

Morningside’s infection control policy required use of masks, eye protection, face shields, and gowns as well as standard precautions including hand hygiene and use of masks and gloves.  CMS Ex. 11 at 12, 13; P. Ex. 16 at 49-50.  The facility’s policy specifically directed its staff to use gloves when in direct contact with a resident infected with organisms transmitted by direct contact, such as MRSA.  Id. at 13.  It also directed staff to wear masks when working within three feet of a resident on droplet precautions.

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Id. at 6.  Staff were to limit the movement of a resident on droplet precautions to essential purposes only and place a mask on the resident for necessary transport or movement.  Id.  If a resident needed to be transported to another unit within the facility, the nursing supervisor, or a designee, was required to inform the receiving unit about the type of precautions the resident was on and the resident’s suspected or confirmed type of infection.  Id. 

3. Relevant facts

Resident 409, a 73-year-old man at the time of the survey, was admitted to Morningside directly from the hospital on May 6, 2019.  CMS Ex. 18 at 13, 23-28, 31; P. Ex. 28 at 1-3.  Resident 409’s attending hospitalist had ordered a respiratory culture which revealed the presence of MRSA on April 24, 2019.  CMS Ex. 18 at 16.  Hospital notes through May 1, 2019 reflected a diagnosis of pneumonia due to MRSA.  Id. at 26-28. 

Resident 409’s diagnoses on admission to Morningside included MRSA, acute end‑stage renal disease, pneumonia, diabetes mellitus, chronic obstructive pulmonary disease, hypertension, and gastroesophageal reflux disease.  CMS Ex. 18 at 13, 31; P. Ex. 28 at 3.  May 7, 2019 progress notes indicated Resident 409 had “acute on chronic respiratory failure due to MRSA pneumonia.”  CMS Ex. 18 at 21, 22.  Petitioner immediately placed Resident 409 on “contact isolation” protocols.⁶  CMS Ex. 18 at 4, 10, 14; P. Ex. 23 at 4.  Petitioner’s physician prescribed Resident 409 one tablet of Linezolid, an antibiotic, until May 20, 2019.  CMS Ex. 18 at 45, 50; P. Ex. 28 at 4. 

On May 14, 2019, Resident 409’s physician ordered him to be placed on “Droplet Precautions/Isolation for MRSA of sputum.”  CMS Ex. 18 at 47, 52; P. Ex. 20; Tr. at 150, 154.  That same day, Surveyor Renny Samuel-Worsham observed a sign on Resident 409’s door stating, “Stop, See the Nurse” and a small multi-compartment cabinet with PPE outside of the resident’s room.  CMS Ex. 5 at 45.  But later that morning, the surveyor observed Physical Therapist Assistant (PTA) F in Resident 409’s room provide a pitcher of water to the resident without wearing PPE.  Id.  On May 16, 2019, the surveyor saw Certified Nursing Assistant (CNA) H cleaning Resident 409’s bedside table without wearing PPE.  Id.  Surveyor Samuel-Worsham then observed Resident 409 exiting the community shower room in a wheelchair assisted by CNA I, with neither wearing PPE.  Id. at 46.  The surveyor noticed Resident 409 actively coughing after exiting the community shower and observed him pass four resident rooms on his way back to his room.  Id.

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Based on these observations, Surveyor Samuel-Worsham interviewed these facility staff members during the survey.  The surveyor reported PTA F explained she did not don PPE because it was a “quick in and out” of the resident’s room.  Id. at 44.  According to Surveyor Samuel-Worsham, CNA H admitted she was aware Resident 409 was subject to isolation protocol but nevertheless did not don PPE because Resident 409 was not in the room while she cleaned his bedside table.  Id. at 45-46.  CNA H was unaware of the facility’s policy for PPE use.  Id. at 46.  CNA I reported she was aware Resident 409 was subject to isolation protocol and confirmed the resident did not don PPE when assisted out of the communal shower.  Id. at 45.  She also admitted she did not wear a mask while assisting Resident 409 in the shower.  Id.  Surveyor Samuel-Worsham also interviewed Housekeeper U, who cleaned the communal shower after Resident 409 used it.  The housekeeper admitted she did not wear PPE when she cleaned the community shower after Resident 409 showered.  Id. at 46.  Housekeeper U did not know Resident 409 had been on isolation precautions and was otherwise unaware of the facility’s policies for residents on isolation precautions.  Id. at 47. 

Surveyor Samuel-Worsham also interviewed Petitioner’s Director of Nursing (DON), Tara Barr, who confirmed a resident on isolation precautions would be required to stay in their room and wear a mask when outside their room.  Id. at 47.  DON Barr stated staff assisting a resident would be required to use PPE, including a mask, gown, and gloves, and that such precautions would be required for staff present in a resident’s room even in their absence.  Id. 

On May 17, 2019, Resident 409 tested positive for Pseudomonas aeruginosa but no  other infection.  P. Ex. 19 at 5.  Petitioner discontinued droplet precautions for Resident 409 on May 21, 2019.  P. Ex. 20 at 2; see Tr. at 151. 

4. Discussion

1. Petitioner has not demonstrated CMS could not rely on the Statement of Deficiencies in the absence of the citing surveyor.  

Petitioner first argues CMS has not established a prima facie case of noncompliance with 42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f) because CMS withdrew the testimony of the surveyor who cited Petitioner with the deficiency (CMS Ex. 32) and is now only relying on the findings in the SOD.  P. Closing Br. at 2-3, 19-20.  Petitioner contends that because the SOD is not supported by testimony and documentary evidence, it is insufficient to establish CMS’s prima facie case.  P. Closing Br. at 3, citing Regency Gardens Nursing Ctr., DAB No. 1858 at 9-10 (2002); Antelope Valley Convalescent Hosp., DAB CR1511 (1997). 

In Regency, the Board indeed stated the SOD is not meant to serve as the sole basis for CMS’s prima facie case.  DAB No. 1858 at 10.  But it later clarified that “the SOD is a

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contemporaneous record of the survey agency’s observations and investigative findings, and . . . CMS may make a prima facie showing of noncompliance based on that document if the factual findings and allegations it contains are specific, undisputed, and not inherently unreliable.”  Guardian Health Care Center, DAB No. 1943 at 10 (2004) (citations omitted); see also Oxford Manor, DAB No. 2167 at 2 (2008) (citing Regency, DAB No. 1858) (providing a SOD “may function both as a notice document and as evidence of the facts asserted therein.”).  The Board confirmed that statements made by staff to a surveyor and recorded in the SOD may constitute substantial evidence.  Omni Manor Nursing Home, DAB No. 1920 at 11 (2004). 

CMS does not need to present evidence in support of undisputed findings in the SOD.  Guardian Health Care Center, DAB No. 1943 at 10, citing Batavia Nursing and Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing and Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005).If a petitioner disputes a finding in the SOD, it must rebut the finding by a preponderance of the evidence.  Id.  If a petitioner does not present relevant, reliable, and sufficient evidence to do so, it has not met its burden of rebuttal.  Id. 

With limited exception, Petitioner did not refute the statements the surveyor claimed its staff members made.  See Beatrice State Developmental Ctr., DAB No. 2311 at 17, 18 (2010).  Where it did, I have weighed the evidence of record to determine which party’s evidence is more persuasive.  But absent such challenge in other instances, I have no basis to find the hearsay statements recorded by Surveyor Samuel-Worsham unreliable.  Absent inconsistencies in the record or conflicting testamentary evidence, there is no basis for me to conclude the SOD in this case is insufficient to meet CMS’s prima facie burden.  Petitioner’s claim that the SOD is otherwise unsupported by documentary evidence is without merit.  Even without the surveyor’s testimony, as explained herein, the documentary record before me corroborates Petitioner’s noncompliance with 42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f).  

2. Petitioner failed to substantially comply with 42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f) because its staff did not follow its own infection control policies. 

The regulation requires facilities to establish and maintain an infection prevention and control program that provides a safe, sanitary, and comfortable environment to prevent the development and transmission of communicable diseases and infections.  42 C.F.R. § 483.80.  The regulation does not mandate specific standards and measures but rather grants a facility discretion to develop and implement infection control protocols consistent with professionally recognized standards of nursing care.  Golden Living Ctr. – Superior, DAB No. 2768 at 5 (2017).  Once a facility develops policies and protocols, it is required to implement those protocols and assure they are working.  Id.  A facility is not in substantial compliance with participation requirements when it fails to follow

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standard precautions and isolation control procedures specified in its internal infection control policies.  Heritage House of Marshall Health & Rehab. Ctr., DAB No. 2566 at 13 (2014). 

Here, Resident 409 was diagnosed with an MRSA infection prior to his admission to Morningside.  CMS Ex. 18 at 13, 31; P. Ex. 28 at 3.  CMS argues Petitioner should have placed Resident 409 on droplet precautions, not just contact isolation, upon his admission.  CMS Br. at 4; CMS Closing Br. at 3.  Petitioner contends Resident 409’s treatment records demonstrate the facility had imposed droplet precautions for him until May 21, 2019.  P. Br. at 18 (citing P. Ex. 20 at 1-2); P. Ex. 40 at 17-18; P. Ex. 41 at 15; P. Ex. 42 at 12.  This is incorrect.  Resident 409’s treatment records instead show Petitioner placed him under contact isolation protocols upon admission and did not impose droplet precautions until May 14, 2019.  Id. at 4, 10, 14, 47, 52; P. Ex. 20; Tr. at 146, 150-151, 154.  Even ADON Pereyda confirmed Resident 409 should have been on droplet precautions upon admission.  CMS Ex. 5 at 44.  Petitioner’s delay in putting Resident 409 on droplet precautions increased the potential for Resident 409 to transmit MRSA to other vulnerable residents, in violation of the requirement to prevent the development and transmission of communicable diseases and infections. 

Despite this, Petitioner makes numerous arguments to the effect that it did not actually have to follow its own infection policy in this matter to remain substantially compliant.  I address these in turn.  After Morningside’s physician placed Resident 409 on droplet precautions, Petitioner’s staff did not always use PPE when providing care to Resident 409.  Petitioner does not dispute that PTA F and CNA H did not wear PPE while they were in Resident 409’s room or that Resident 409 and CNA I did not wear masks when CNA I transported Resident 409 to the communal shower.  It instead argues droplet precautions were not actually necessary because Resident 409’s MRSA infection likely cleared two days before his admission to the facility.  P. Br. at 16‑20; P. Closing Br. at 19; Tr. at 15-16; P. Ex. 40 at 18; P. Ex. 41 at 15; P. Ex. 42 at 13. 

In support of this claim, Petitioner cites a one-page Reference.com article titled “Does MRSA Ever Go Away?” which appears to address the likelihood of reinfection of MRSA in typical patients.  P. Br. at 18, citing P. Ex. 15 at 1.  According to the article, “an active MRSA infection is typically healed in about 10 days.”  P. Ex. 15 at 1.  Because Resident 409 tested positive for MRSA on April 24, 2019, Petitioner asserts his MRSA infection would likely have cleared on May 4, 2019, two days before his admission to Morningside on May 6, 2019.  P. Br. at 18. 

I find this article to be of little probative value as to that contention.  Even if accepted as true, its characterization of the healing time for typical cases has little relevance to the healing time for elderly residents in SNFs, who are not typical patients.  The article in fact undermines Petitioner’s argument as it acknowledges subsequent outbreaks are

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possible even after 10 days for healing because those infected can remain colonized with the MRSA bacteria.  P. Ex. 15 at 1. 

To otherwise substantiate its claim Resident 409 was likely not infectious, Petitioner points to April 2019 hospital records showing marked improvement after treatment with antibiotics.  P. Br. at 18; P. Ex. 28 at 2; P. Ex. 40 at 17; P. Ex. 41 at 15; P. Ex. 42 at 12.  But even if Resident 409 had shown such improvement in clinical affect, the hospital did not obtain another culture from Resident 409 before he was discharged to Morningside.  I cannot infer Resident 409 was not infectious based solely on a notation that he responded well to antibiotics.  The facility itself indicated Resident 409 had a diagnosis of MRSA upon admission; if it wished to confirm he was no longer infectious to avoid the trouble of imposing infection control protocols, it could have retested him.  It chose not to do so until May 17, 2019. 

Petitioner also notes Resident 409 never had a fever or elevated white blood cell counts, indicators of infection, while at Morningside.  P. Br. at 19 (citing P. Ex. 19 at 4, 13; P. Ex. 23 at 4); P. Ex. 40 at 18; P. Ex. 41 at 15-16; P. Ex. 42 at 13.  But Petitioner’s evidence only shows white blood cell counts from May 10 and May 18 and a temperature reading from May 8, 2019.  P. Ex. 19 at 4, 13; P. Ex. 23 at 4.  Petitioner has not presented sufficient evidence to support its claim that clinical indicators demonstrated Resident 409 no longer had MRSA upon his admission to Morningside. 

Petitioner also asserts a May 17, 2019 culture confirmed Resident 409 was infected by Pseudomonas aeruginosa, not MRSA.  P. Br. at 19; P. Ex. 40 at 18; P. Ex. 41 at 16; P. Ex. 42 at 13.  But Resident 409 was admitted to Morningside eleven days earlier, on May 6, 2019.  This much later culture result does not support Petitioner’s claim that Resident 409 did not have MRSA upon his admission to the facility through the May 17, 2019 culture. 

Petitioner next contends there was no risk of droplet transmission from Resident 409 to PTA F and CNA H because neither staff member was in the room with the resident.  P. Br. at 19-20; P. Ex. 40 at 19; P. Ex. 41 at 16; P. Ex. 42 at 14.  Petitioner mischaracterizes the record.  The SOD does state Resident 409 was not in his room when CNA H cleaned it, but it does not “concede” Resident 409’s absence when PTA F provided him a pitcher.  Compare P. Br. at 19, with CMS Ex. 5 at 45.  The SOD instead documents PTA F’s admission that she did not use a mask, gown, and gloves because her visit to Resident 409’s room was a “quick in and out.”  CMS Ex. 5 at 45.  Of course, neither CDC guidelines nor Morningside’s own droplet precaution policies exempt the use of PPE for shorter periods of contact with an infected individual.  PTA F violated Morningside’s policies when she entered Resident 409’s room without wearing a mask. 

Seeking to refute CMS’s allegations that CNA I and Resident 409 did not wear masks while CNA I transported Resident 409 to and from the shower, Petitioner submitted

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unsworn statements from two staff members who claimed neither staff nor residents were within three feet of Resident 409 while he was in the hallway or shower.  P. Br. at 20, citing P. Ex. 25; see also P. Ex. 40 at 19; P. Ex. 41 at 16; P. Ex. 42 at 14.  These statements were not made under oath.  They date from several weeks after the incident at issue and therefore are not contemporaneous recollections.  But even if I accept them at face value, Petitioner’s employees do not contradict CMS’s allegations that CNA I and Resident 409 did not wear masks.  Regardless of proximity to others, Morningside’s policies required facility staff to wear masks when working within three feet of a resident on droplet precautions and did not exempt the use of masks when transporting a resident on droplet precautions.  CMS Ex. 11 at 6.  It also required facility staff to place a mask on the affected resident during transport.  Id.  Based on the uncontroverted facts of record, I conclude CNA I violated Petitioner’s droplet precaution policies because she failed to wear PPE within three feet of Resident 409 and did not place a mask on the resident to transport him. 

3. CMS has not established Petitioner violated its own infection control policy concerning the cleaning of common areas after use by an infected or potentially infected resident.  

CMS alleges Petitioner’s staff violated facility infection control policy by failing to notify facility housekeepers of Resident 409’s droplet precaution status before cleaning of the communal shower after its use by Resident 409.  CMS Br. at 4, 15.  Petitioner contends facility staff in fact closed the shower for the day and cleaned it with Virex (a disinfectant designed to kill bacteria like MRSA and P. aeruginosa) after its use by Resident 409.  P. Br. at 20; P. Ex. 40 at 19; P. Ex. 41 at 17; P. Ex. 42 at 14; P. Ex. 21.  Petitioner further observes that Resident 409 was the last resident to use the communal shower on May 16, 2019.  P. Ex. 25 at 1; P. Ex. 29; see P. Ex. 40 at 19; P. Ex. 41 at 17; P. Ex. 42 at 14. 

CMS does not explain how Morningside’s infection policy required nursing staff to notify housekeeping staff that Resident 409 was on droplet precautions due to a MRSA infection.  CMS Br. at 15.  It makes no mention of this argument at all in its post-hearing briefing.  Contrary to CMS’s assertion, Morningside’s infection control policies did not require nursing staff to notify housekeeping staff that Resident 409 was on droplet precautions prior to cleaning the communal shower.⁷  CMS Ex. 11; P. Ex. 16.

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It is true LVN G claimed to the surveyor that CNAs would clean the communal shower room after each shower.  CMS Ex. 32 at 10.  That did not happen in this instance, but such a practice is not formally recognized or required by Morningside’s infection control policy.  It instead required staff to clean and disinfect any “common item” used by an infected resident.  CMS Ex. 11 at 6.  It does not specify which staff members should do such cleaning or in what circumstances they were required to don PPE.  Petitioner has established the communal shower was in fact cleaned and disinfected after its use by Resident 409 and before any other resident used it.  P. Br. at 20. 

It is entirely possible that Petitioner’s policy is itself inadequate under the regulations as to who should clean a communal shower after its use by an infected resident and whether they would be required to use PPE.  But CMS has not made that argument.  It has not proffered evidence that would corroborate such an argument.  Absent argument or evidence to support its contention, I cannot conclude CMS has met its burden to show Petitioner violated the provisions of 42 C.F.R. § 483.80(a) because its infection control policy did not require use of PPE to clean a communal shower after its use by an infected resident, particularly after a certain amount of time. 

But while CMS has not demonstrated a violation in this one particular instance, the record makes clear that Petitioner’s staff did not consistently follow the facility’s infection control protocols to provide care and services to Resident 409, who as far as the facility understood, had been admitted on May 6, 2019 with a possibly contagious MRSA infection.  Petitioner did not obtain a culture for Resident 409 confirming he did not have a MRSA infection until May 21, 2019.  P. Ex. 20 at 2.  Until then, Petitioner was required to follow its infection control policy, which provided specific guidance for use of masks and gloves when providing care or transporting residents on droplet precautions.  See CMS Ex. 11 at 6, 12, 13; P. Ex. 16 at 49-50.  However, Petitioner’s staff did not wear PPE when providing services to Resident 409 and did not place a mask on Resident 409 when transporting him to and from the common resident shower.  Petitioner was not in substantial compliance with 42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f) because it failed to comply with its own infection control protocols to prevent MRSA from spreading in the facility.  

2. CMS’s immediate jeopardy determination is not clearly erroneous.

CMS determined Morningside’s noncompliance with 42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f) constituted immediate jeopardy.  CMS Ex. 5 at 48.  Morningside disputes the immediate jeopardy determination and argues there was no likelihood of a serious adverse outcome because:  Resident 409 did not have active MRSA; PTA F and CNA H did not come into direct contact with the resident; no resident or staff was within three feet of Resident 409 when he was transported to and from the shower; the shower was closed after the resident used the shower; and staff cleaned the shower with a disinfectant specifically designed to kill MRSA.  P. Closing Br. at 21; P. Ex. 40 at 21; P. Ex. 42 at 16.

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Morningside claims there cannot be a serious likelihood of infection spread if “the infection is not even realistically present.”  Id.  Petitioner also argues there was no immediate action required by the facility to avoid serious injury related to droplet transmission risk because the instances cited by the surveyor involved zero droplet transmission risk.  Id. at 22. 

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.  I must uphold CMS’s determination as to the level of a facility’s noncompliance (including an immediate jeopardy finding) unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The Board has consistently observed 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.”  Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004) citing Koester Pavilion, DAB No. 1750 (2000); Daughters of Miriam Ctr., DAB No. 2067 at 7, 9 (2007). 

It is not erroneous for CMS to determine a facility’s failure to implement infection control precautions posed immediate jeopardy to resident health and safety.  Golden Living Ctr., DAB No. 2768 at 25-26.  Despite Petitioner’s arguments, its failure to follow its own infection control policies was likely to cause serious harm, impairment, or even death to the facility’s residents.  Petitioner’s claim that Resident 409 did not have MRSA by the time he was admitted to Morningside is unsupported and immaterial.  Resident 409 was diagnosed with MRSA while hospitalized immediately prior to his admission to Morningside.  Upon admission to Morningside, the facility included MRSA as one of Resident 409’s diagnoses.  Therefore, until Petitioner determined Resident 409 no longer had MRSA, Petitioner was required to comply with all provisions of its infection control policy to prevent MRSA transmission in the facility. 

Although PTA F and CNA H did not come into direct contact with the resident, they could have touched contaminated objects in Resident 409’s room and then spread the infection to another resident or member of staff.  Additionally, PTA F and CNA I were almost certainly within three feet of Resident 409, making them susceptible to infection through droplet transmission.  Finally, even if no other residents or staff were in the hallway when CNA I transported Resident 409 to the communal resident shower, Petitioner’s policy required both CNA I and Resident 409 to be masked.  By failing to adhere to basic infection control protocols, Resident 409 could have easily infected CNA I, who could have then transmitted the infection to other members of staff or residents. 

MRSA spreads easily in facilities like nursing homes through contact with infected persons, especially healthcare providers, and objects such as bed linens, bed rails, bathroom fixtures, or medical equipment.  CMS Ex. 16 at 1, 3.  MRSA can also spread through respiratory droplets generated when an infected person speaks, coughs, or

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sneezes or during certain medical procedures.  Id. at 7.  Moreover, asymptomatic carriers of MRSA can still spread MRSA to others.  Id. at 3.  MRSA is more difficult to treat because of its resistance to common antibiotics.  Id. at 1.  Surveyor Susana Cruz cited to a CDC report confirming antibiotic resistance in healthcare settings is a significant threat to public health because residents in hospitals and SNFs are vulnerable due to weakened immune systems and underlying illness.  CMS Ex. 26 at 2 (citing Antibiotic Resistance Threats in the United States, 2013, https://www.cdc.gov/drugresistance/threat-report-2013/pdf/ar-threats-2013-508.pdf (last visited Jan. 18, 2023)). 

It is therefore critical for facilities like Petitioner to rigorously adhere to infection control protocols to prevent MRSA transmission.  CMS Ex. 26 at 3.  Petitioner’s noncompliance with its own infection control policies could have resulted in the spread of MRSA throughout the facility.  This would have been particularly dangerous for vulnerable and immunocompromised nursing home residents who were likely at higher risk for acquiring lethal infections.  Petitioner’s failure to take precautions to prevent the spread of MRSA placed all residents at risk of serious harm, impairment, or even death.  CMS’s immediate jeopardy determination is not clearly erroneous. 

3. Petitioner was not in substantial compliance with 42 C.F.R. § 483.20(g) (F641) because it did not maintain accurate assessments for Residents 22 and 111.

42 C.F.R. § 483.20(g) requires that assessments accurately reflect a resident’s status.  CMS alleges Petitioner failed to have assessments that accurately reflected Resident 22’s lower extremity impairments and Resident 111’s discharge location.  CMS Br. at 16; CMS Closing Br. at 5.  Petitioner does not dispute the accuracy of Resident 22’s Minimum Data Set (MDS) assessment.  It does argue Resident 111’s discharge MDS was accurate as to his discharged status and the actual location of discharge to be irrelevant.  P. Br. at 1-2; P. Closing Br. at 4; P. Ex. 40 at 3-4; P. Ex. 41 at 2. 

Resident 22 had diagnoses of muscle weakness, fracture of the upper end of left humerus, spinal stenosis, major depressive disorder, and osteoarthritis.  CMS Ex. 27 at 3; CMS Ex. 13 at 6.  On May 16, 2019, Resident 22 informed Surveyor Cindy LeMay her muscles were contracted and she could not straighten her legs because “her knees had been ‘frozen’ since 2010” after a spinal aneurysm.  CMS Ex. 27 at 3.  However, Resident 22’s Quarterly MDS dated February 22, 2019 indicated no functional impairment to her lower extremities.  CMS Ex. 27 at 3; Tr. at 31.  MDS coordinator nurse Martinez confirmed Resident 22’s MDS was coded incorrectly and should have reflected the impairments to her lower extremities.  CMS Ex. 27 at 3. 

Resident 111, a 72-year-old male, was discharged from Morningside to another nursing facility on March 13, 2019.  CMS Ex. 31 at 3; P. Ex. 32 at 1, 2.  However, the discharge MDS assessment dated the same day incorrectly indicated Resident 111 had been discharged to an acute hospital.  CMS Ex. 31 at 3; P. Ex. 32 at 3.  MDS coordinator nurse

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Martinez again confirmed Resident 111’s discharge MDS was incorrect.  CMS Ex. 31 at 3. 

Petitioner minimizes the role of the MDS, asserting it is only one component of the process for developing a care plan.  Tr. at 31.  But the MDS assessment is more properly characterized as “the foundation of the ‘comprehensive assessment’ required for all residents of long-term care facilities that participate in the Medicare program.”  Crawford Healthcare & Rehab., DAB No. 2738 at 6 n.9 (2016).  Facilities must accurately assess and document the status of its residents to ensure their needs are met with appropriate care and services.  If Resident 22’s lower extremity impairments were not adequately documented, Morningside’s staff would not be able to assess whether Resident 22 required assistance with mobility, transfers, or activities of daily living.  Similarly, it was critical that Morningside’s records correctly reflected his discharge to another nursing home to ensure Resident 111’s records and care instructions, such as medication information, were provided to the correct facility.  Because Morningside did not maintain accurate MDS assessments for Residents 22 and 111, it was not in substantial compliance with 42 C.F.R. § 483.20(g). 

4. Petitioner was not in substantial compliance with 42 C.F.R. § 483.21(a)(1)-(3) (F655) because it did not develop and implement a baseline care plan for Resident 409 within 48 hours of his admission to the facility.

A SNF must develop and implement a baseline care plan for each resident within 48 hours of a resident’s admission.  42 C.F.R. § 483.21(a)(1)(i).  According to the SOD, Petitioner did not do so with respect to Resident 409.  CMS Ex. 5 at 6.  Petitioner asserts CMS cannot establish its prima facie case because it withdrew the testimony of the surveyor who wrote this deficiency.  P. Closing Br. at 5.  Alternatively, Petitioner argues the baseline care plan clearly indicated staff reviewed the physician orders and plan of care on May 6, 2019, the same day of Resident 409’s admission.  P. Br. at 2.  

Petitioner’s argument is without merit.  The documentary evidence ultimately confirms the surveyor’s characterization of the baseline care plan.  Resident 409 was admitted to Morningside on May 6, 2019.  CMS Ex. 18 at 13, 31; P. Ex. 28 at 3.  His baseline care plan indeed reflects an effective date of May 6, 2019, as Petitioner suggests.  CMS Ex. 18 at 40.  But on the bottom of the last page, a handwritten note dated May 16 by ADON Pereyda states:  “Not completed.  Will in 24 [hours].”  CMS Ex. 18 at 44; see CMS Ex. 7.  ADON Pereyda later confirmed to the surveyor that Morningside did not complete a baseline care plan for Resident 409, who himself stated he had not participated in any care plan discussion.  CMS Ex. 5 at 7.  ADON Pereyda in fact informed Surveyor Samuel-Worsham the care plan was still incomplete on May 16, 2019.  CMS Ex. 5 at 6; CMS Ex. 18 at 44.  The care plan also appears to be missing signatures from the facility’s interdisciplinary team.  CMS Ex. 18 at 44.

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Petitioner submitted P. Ex. 33 to support its argument the facility prepared a baseline care plan for Resident 409 on May 6, 2019, upon his admission to the facility.  P. Br. at 2; P. Closing Br. at 4-5.  Petitioner’s witnesses testify the care plan “clearly indicates the physician orders and the plan of care were reviewed with the resident/representative on May 6.”  P. Ex. 40 at 4; P. Ex. 41 at 3.  Petitioner’s version of Resident 409’s care plan does at least bear the proper signatures.  P. Ex. 33 at 5.  But it does not establish the date the care plan was completed.  Petitioner has therefore not shown substantial compliance with 42 C.F.R. § 483.21(a)(1)-(3). 

5. Petitioner was not in substantial compliance with 42 C.F.R. § 483.21(b)(1) (F656) because it failed to develop comprehensive care plans for five residents.

A SNF must develop and implement a comprehensive, person-centered care plan for each resident, consistent with the resident’s rights, that includes measurable objectives and timeframes to meet a resident’s medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment.  42 C.F.R. § 483.21(b)(1).  Specifically, the comprehensive care plan is required to describe services that are to be furnished to attain or maintain the resident’s highest practicable physical, mental, and psychosocial well-being under sections 483.24, 483.25, or 483.40.  Id. 

The requirement for facilities to develop comprehensive care plans reflects the “importance of unified and coordinated resident assessments to the provision of high quality care.”  Sheridan Health Care Ctr., DAB No. 2178 at 36 (2008) (quoting 52 Fed. Reg. 38,582, 38,585 (1987)).  A comprehensive care plan “functions as a roadmap for all of the resident’s caregivers, including those unfamiliar with a resident or without professional training, to provide consistent care and services tailored to ‘attain or maintain the resident’s highest practicable physical, mental and psychosocial well‑being.’”  Id. at 37 (quoting 42 C.F.R. § 483.21(b)). 

CMS alleges Petitioner failed to develop and implement comprehensive person-centered care plans for five residents, Residents 22, 27, 37, 42, and 462.  CMS Br. at 16; CMS Closing Br. at 5.  Petitioner does not dispute Resident 22’s care plan did not include information about her leg contractures.  As previously discussed, Resident 22 could not straighten her legs since a spinal aneurysm in 2010.  CMS Ex. 27 at 3.  However, Resident 22’s comprehensive care plan dated February 22, 2019 did not address her lower extremity muscle contractures or her need for pillows or a cushion under her legs for support.  Id. at 4.  MDS coordinator nurse Martinez confirmed Resident 22’s care plan should have included interventions to address her lower extremity muscle contractures.  Id. 

Resident 27 had diagnoses of Parkinson’s disease, hypertension, glaucoma, bipolar disorder, anxiety, and depression.  Id. at 4-5.  A February 20, 2019 physician order

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indicated Resident 27 desired Do Not Resuscitate (DNR) status.  Id. at 5; P. Ex. 34; Tr. at 35.  However, as confirmed by MDS coordinator nurse Martinez, Petitioner did not update Resident 27’s care plan to reflect that change.  Id.  

Resident 37 was last admitted to Morningside on October 10, 2015.  CMS Ex. 21 at 1.  A transfer evaluation dated March 8, 2019 indicated Resident 37 required transfers with a mechanical lift using a body sling.  Id. at 12; P. Ex. 35 at 2.  Her comprehensive care plan did not provide for transfers with a mechanical lift.  See CMS Ex. 21 at 3‑10; P. Ex. 35 at 3-10. 

Resident 42 was admitted to Morningside on August 15, 2017.  CMS Ex. 20 at 1.  A transfer evaluation dated March 7, 2019 indicated Resident 42 required transfers with a mechanical lift using a body sling.  Id. at 4; P. Ex. 36 at 2.  Her comprehensive care plan did not provide for transfers with a mechanical lift.  See CMS Ex. 20 at 5‑11. 

Resident 462 was admitted to Morningside on May 3, 2019.  P. Ex. 37 at 1.  A nutritional therapy admission assessment dated May 8, 2019 noted Resident 462 was on Nothing by Mouth (NPO) status and tube-fed.  Id. at 1, 4.  On May 9, 2019, a physician ordered NPO status for Resident 462.  CMS Ex. 28 at 3.  On May 15, 2019, a physician ordered enteral feeding four times daily through a percutaneous endoscopic gastronomy (PEG).  Id.  Treatment records showed Morningside complied with the physician orders for NPO and enteral feeding.  P. Ex. 37 at 10-12.  However, as confirmed by MDS coordinator nurse Martinez, Resident 462’s May 14, 2019 comprehensive care plan did not reflect his NPO status.  CMS Ex. 28 at 3. 

Petitioner claims Resident 27’s care plan showed the resident on full-code status because he had that status upon his admission through February 19, 2019.  P. Br. at 3; P. Closing Br. at 5; P. Ex. 40 at 5; P. Ex. 41 at 3.  Petitioner contends it did not violate the participation requirement because the DNR order required a physician’s signature and the physician did not sign the order until four days after Morningside completed Resident 27’s care plan on February 16, 2019.  Id.  However, Petitioner’s own policy required a care plan to be updated with a significant change in a resident’s condition.  CMS Ex. 11 at 2.  The physician signed the DNR order on February 20, 2019, almost three months prior to the survey.  P. Ex. 24; Tr. at 34-35.  A change from full code to DNR status constitutes a significant change that required attention to maintain Resident 27’s highest practicable physical, mental, and psychosocial well-being.  As Surveyor LeMay testified, DNR status is an important aspect of resident’s rights as unwanted performance of cardiopulmonary resuscitation “can end up being very detrimental for the resident.”  Tr. at 71.  Morningside should have updated Resident 27’s care plan to reflect his DNR status as soon as the physician signed the DNR order.  Tr. at 34, 70. 

Petitioner next argues that because CMS withdrew surveyor testimony for Residents 37 and 42, CMS has not met its prima facie case for deficiencies concerning those residents.

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P. Closing Br. at 5.  However, as discussed above, there is documentary evidence to support Petitioner’s noncompliance with 42 C.F.R. § 483.21(b)(1) related to Residents 37 and 42 and Petitioner has not presented sufficient evidence to rebut CMS’s prima facie case. 

Petitioner asserts the transfer evaluations and the MDS were incorporated in the care planning process and thus sufficient to make staff aware Residents 37 and 42 required a mechanical lift with a body sling for transfers.  P. Br. at 3, 4; P. Ex. 40 at 5-6; P. Ex. 41 at 3-4.  Petitioner similarly argues that since the nutritional therapy admission assessment and the MDS are both used in the care plan development process, the nutritional therapy assessment provides a clear care plan showing Resident 462’s NPO status.  P. Br. at 4; P. Ex. 40 at 6; P. Ex. 41 at 4-5.  Petitioner does not dispute that care plans for Residents 37 and 42 did not include their need for transfers with a mechanical lift or that Resident 462’s care plan did not indicate her NPO status. 

Petitioner’s argument highlights the necessity of creating a comprehensive care plan.  Its suggestion that staff could instead review multiple documents when providing care to residents would increase the chance of oversight and error by staff members who provide care to numerous residents throughout the day.  As Surveyor Montemayor testified, the purpose of a comprehensive care plan is to provide facility staff with one document they can refer to for all the care a resident requires.  Tr. at 113.  Moreover, although Resident 462’s medical record contained the NPO order and documentation for PEG, not all facility staff had access to those documents.  Id.  A comprehensive care plan ensures staff can refer to one document to provide consistent high-quality care tailored to attain or maintain a resident’s highest practicable physical, mental, and psychosocial well‑being.  

The evidence establishes Petitioner failed to develop comprehensive care plans for Residents 22, 27, 37, 42, and 462 that included all essential information about their medical, nursing, and psychosocial conditions and required care interventions.  Petitioner was not in substantial compliance with 42 C.F.R. § 483.21. 

6. Petitioner was in substantial compliance with 42 C.F.R. § 483.24(c)(1) (F679) because it provided in-room activities to Resident 12 in accordance with her care plan.

A SNF must provide, based on the comprehensive assessment and care plan and the preferences of each resident, an ongoing program to support residents in their choice of activities, both facility-sponsored group and individual activities and independent activities, designed to meet the interests of and support the physical, mental, and psychosocial well-being of each resident, encouraging both independence and interaction in the community.  42 C.F.R. § 483.24(c)(1).  

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Resident 12 was admitted to Morningside on February 4, 2019 with diagnoses including diffuse traumatic brain injury, quadriplegia, generalized idiopathic epilepsy, and gastroesophageal reflux disease.  CMS Ex. 5 at 15.  Resident 12 had a severe cognitive impairment.  Id.  Resident 12’s Quarterly Activity Assessment indicated he “prefer[red] in room activities” and his care plan directed staff to provide “1 and 1 room visit for sensory stimulation, when the resident chose not to participate in organized activities, turn on TV, music in room to provide sensory stimulation.”  Id.; P. Ex. 38 at 2, 4. 

According to the SOD, the Activity Director, Janie Guevara, told Surveyor Samuel-Worsham she did not have a schedule or a list of residents who required in-room activities, which included nail care, hand massage, and snacks.  Id. at 16.  The Activity Director Guevara also stated she had not been providing activities as directed in Resident 12’s quarterly activity assessment and care plan.  Id.  Activity Director Guevara did not have documentation of activities provided during May and explained that she did not provide more in-room activities because of lack of assistance.  Id. 

CMS alleges Petitioner failed to provide activities designed to meet the interests of and support the physical, mental, and psychological well-being of Resident 12.  CMS Br. at 17; CMS Closing Br. at 6.  Petitioner first argues there is no testimonial or surveyor evidence to support this deficiency because CMS withdrew the testimony of the surveyor who cited Petitioner with this deficiency.  P. Closing Br. at 8.  Petitioner also asserts Morningside provided in‑room activities to Resident 12.  P. Br. at 5-6; P. Closing Br. at 8.  

In support of its argument, Petitioner submitted a statement from Activity Director Guevara, who stated she provided in-room activities, including music, hand massage, and nail care, to Resident 12 and many other residents.  P. Ex. 38 at 1.  She explained she provided monthly activity calendars to the surveyor and disputed telling the surveyor she was unable to provide more in-room activities due to lack of assistance.  Id. 

According to the Director of Clinical Services (DCS) Vickie Ragsdale and DON Barr, activities provided to a resident were recorded on the monthly activities calendar in the resident’s room.  P. Ex. 40 at 7; P. Ex. 41 at 5.  Activities provided to Resident 12 included “hand massages, getting to know the resident, turning on her phone radio, music, visits in the common areas, visits with family, manicure/hand care, having resident in the common area with other residents, and Bible poems.”  Id.  Calendars from February through June 2019 labeled with Resident 12’s name corroborate a schedule of activities for the resident each day including music, hand massage, nail care, and Bible poems.  Id. 

Although Activity Director Guevara’s statement was not a sworn statement, the testimony of DCS Ragsdale and DON Barr, supported by the activity calendars in the record, sufficiently establish that Morningside provided in-room activities to Resident 12

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three to four times a week in accordance with her care plan.  Petitioner provided an ongoing program of in-room activities to support Resident 12’s physical, mental, and psychosocial well-being and was therefore in substantial compliance with 42 C.F.R. § 483.24(c)(1). 

7. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2) (F689) because it failed to secure an oxygen tank in Resident 21’s room.

A facility “must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices.”  42 C.F.R. § 483.25.  To that end, this regulation imposes specific obligations upon a facility related to accident hazards and accidents: 

The facility must ensure that –

(1) The resident environment remains as free of accident hazards as is possible; and

(2) Each resident receives adequate supervision and assistance devices to prevent accidents.

42 C.F.R. § 483.25(d)(1), (2).  A facility must address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  Meadowwood Nursing Ctr., DAB No. 2541 at 2 (2013) (citing Me. Veterans’ Home – Scarborough, DAB No. 1975 at 10 (2005)). 

CMS alleges Petitioner failed to provide an environment free of hazards for Resident 21, who had a physician’s order for oxygen due to shortness of breath.  CMS Br. at 17; CMS Closing Br. at 6-7; CMS Ex. 30 at 4; Tr. at 83.  On May 14, 2019, Surveyor Patsy Galvan observed an unsecured oxygen tank in Resident 21’s room.  CMS Ex. 30 at 3; Tr. at 82‑83.  The surveyor confirmed with a registered nurse that the oxygen cylinder should not have been unsecured in the resident’s room.  CMS Ex. 30 at 3-4.  Surveyor Galvan testified the unsecured oxygen cylinder had the potential to cause more than minimal harm to Resident 21.  Id. at 4. 

Petitioner did not present any arguments related to 42 C.F.R. § 483.25(d)(1), (2) in its pre-hearing brief, at the hearing, or in its post-hearing brief.  Because Petitioner does not dispute CMS’s prima facie case, I uphold the deficiency finding.

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8. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(i) (F695) because it did not ensure Resident 29 received the correct amount of oxygen flow.  

The Act requires SNFs to “provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care.”  42 U.S.C. § 1395i-3(b)(2).  The Secretary promulgated the general quality of care regulation, which states that a SNF “must ensure that residents receive treatment and care in accordance with professional standards of practice,” based on a comprehensive resident assessment, a comprehensive care plan, and resident choice.  42 C.F.R. § 483.25.  Subsection 483.25(i) provides that a “facility must ensure that a resident who needs respiratory care, including tracheostomy care and tracheal suctioning, is provided such care, consistent with professional standards of practice, the comprehensive person-centered care plan, the residents’ goals and preferences, and [42 C.F.R. § 483.65].”  42 C.F.R. § 483.25(i). 

CMS alleges Petitioner failed to provide respiratory care consistent with professional standards of practice, Resident 29’s comprehensive person-centered care plan, and Resident 29’s goals and preferences.  CMS Br. at 18; CMS Closing Br. at 7-8.  Petitioner argues Resident 29, who has resided at Morningside for over eight years and is cognitively intact, understood how to use her oxygen equipment and adjust her own settings as necessary.  P. Br. at 6-7; P. Closing Br. at 8-9; P. Ex. 40 at 8; P. Ex. 41 at 6; P. Ex. 42 at 4. 

Resident 29, an 83-year-old female, was readmitted to Morningside on May 11, 2019 with diagnoses of chronic obstructive pulmonary disease, seizures, and peripheral vascular disease, all of which required oxygen therapy.  CMS Ex. 10 at 19; CMS Ex. 27 at 5.  Resident 29 scored the highest score possible on the Brief Interview for Mental Status assessment, confirming she was cognitively intact.  P. Ex. 31 at 2; Tr. at 36-37.  Prior to her readmission to Morningside, Resident 29 was hospitalized due to increased seizure activity.  Id. at 7.  While hospitalized, Resident 29’s oxygen flow rate was two liters per minute.  Id. at 3. 

Upon readmission to Morningside, a physician order appeared to indicate Resident 29 should be provided oxygen at three liters per minute.  CMS Ex. 27 at 6.  However, Surveyor LeMay observed Resident 29 using a portable oxygen unit set to two liters per minute.  Id.  An LVN acknowledged she had not checked Resident 29’s oxygen setting and was not aware of the physician order.  Id. 

Petitioner explains Resident 29’s oxygen flow rate had never been ordered at three liters per minute but was consistently two liters per minute prior to and during her hospital admission.  P. Br. at 7; P. Closing Br. at 9; P. Ex. 40 at 8; P. Ex. 41 at 6; P. Ex. 42 at 4.  Upon the resident’s readmission to Morningside, a facility nurse incorrectly transcribed

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the hospital order to be three liters of oxygen per minute.  Id.  Petitioner contends Resident 29 managed her own oxygen, which she had a right to do, and even confirmed with the physician that her oxygen should be set at two liters per minute.  P. Br. at 7; P. Closing Br. at 9; Tr. at 39; P. Ex. 31 at 1. 

Petitioner’s arguments that Resident 29 could manage her own oxygen and knew that her oxygen flow rate should be at two liters minute does not excuse Petitioner’s obligation under the regulation to ensure Resident 29 received oxygen in accordance with professional standards of practice and the resident’s care plan and goals and preferences.  Oxygen is considered a medication and cannot be self-administered absent a physician’s order which was not present here.  Tr. at 39-40.  Moreover, Resident 29’s physician determined the appropriate amount of oxygen she should receive.  Tr. at 71.  An incorrectly transcribed physician’s order could have caused harm including further seizure activity or increased shortness of breath if facility staff set the oxygen flow to three liters per minute without Resident 29’s knowledge.  CMS Ex. 27 at 6.  Petitioner failed to substantially comply with 42 C.F.R. § 483.25(i) by failing to ensure medical records reflected the correct amount of oxygen Resident 29 required. 

9. Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(n)(1)-(4) (F700) because it did not obtain informed consent, assess entrapment risks, or attempt appropriate alternatives prior to installing bed rails for eight residents.

A facility must attempt to use appropriate alternatives prior to installing a side or bed rail. If a bed or side rail is used, the facility must ensure correct installation, use, and maintenance of bed rails, including but not limited to the following elements: 

(1) Assess the resident for risk of entrapment from bed rails prior to installation.
(2) Review the risks and benefits of bed rails with the resident or resident representative and obtain informed consent prior to installation. 
(3) Ensure that the bed’s dimensions are appropriate for the resident’s size and weight. 
(4) Follow the manufacturer’s recommendations and specifications for installing and maintaining bed rails.

42 C.F.R. § 483.25(n)(1)-(4). 

Surveyors observed nine residents with bed rails.  CMS Ex. 5 at 23-30; CMS Ex. 27 at 6-7; CMS Ex. 30 at 4-5.  CMS alleges Petitioner failed to ensure these residents (Residents 12, 21, 22, 27, 29, 49, 61, 72, and 409) were assessed for or consented to bed rails and failed to attempt alternatives before installing bed rails.  CMS Br. at 18-19; CMS Closing Br. at 8.

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Resident 12

A physician ordered bed rails for Resident 12 on February 8, 2019 due to the resident’s seizures and quadriplegia.  P. Ex. 1.  CMS alleges Morningside did not assess Resident 12 for the use of bed rails, obtain Resident 12’s informed consent to use bed rails, or attempt alternative methods prior to the installation of bed rails.  CMS Ex. 5 at 21, 23. 

According to DCS Ragsdale and DON Barr and a signed statement by ADON Pereyda, the resident required bed rails due to her seizure activity.  P. Ex. 2; P. Ex. 40 at 10-11; P. Ex. 41 at 8.  DCS Ragsdale and DON Barr explained Resident 12’s family requested use of a specific bed because it had a mechanism providing percussion which could only be activated by side rails.  P. Ex. 40 at 10; P. Ex. 41 at 8.  Additionally, they stated there were no other alternatives to activate the percussion feature.  Id.  DCS Ragsdale and DON Barr also testified that Morningside advised Resident 12’s family of the risks associated with the use of bed rails, and “she specifically stated she wanted use of the bed with [quarter] side rails to continue.”  P. Ex. 40 at 10-11; P. Ex. 41 at 8. 

Resident 21

According to CMS, Resident 21’s informed consent form was incomplete and Petitioner did not assess the resident for the use of bed rails or attempt alternative methods before installing bed rails.  CMS Ex. 30 at 3. 

Petitioner submitted a completed informed consent form signed by Resident 21 on February 3, 2019.  P. Ex. 3.  The form indicated Petitioner assessed Resident 21 for bed rails because of weakness due to her cancer diagnosis.  Id. at 1; see P. Ex. 4; P. Ex. 40 at 11; P. Ex. 41 at 8-9.  The consent indicated bed rails would assist the resident with mobility, turning, repositioning, and getting out of bed and there no risks associated with bed rail use were identified.  Id.  The consent form also showed Morningside suggested a trapeze as an alternative but the resident preferred and functioned better with side rails.  Id. 

Resident 22

CMS alleges Morningside did not assess Resident 22, obtain informed consent, or attempt alternatives before installing bed rails for the resident.  CMS Ex. 27 at 7. 

According to DCS Ragsdale and DON Barr, and a signed statement by ADON Pereyda, the resident requested handi-rails for bed mobility due to her lower extremity contractures.  P. Ex. 5; P. Ex. 40 at 11-12; P. Ex. 41 at 9.  The facility attempted to remove the bed rails in 2018 but Resident 22 could not move in bed, increasing her risk of pressure ulcers and other consequences due to immobility.  P. Ex. 5; P. Ex. 40 at 12; P. Ex. 41 at 9.  Resident 22 requested to have the bed rails placed back onto her bed.  P. Ex.

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40 at 12; P. Ex. 41 at 9.  DCS Ragsdale and DON Barr further testified that were no other alternatives to accomplish the therapeutic objective of the handi-bars.  P. Ex. 40 at 12; P. Ex. 41 at 9. 

Resident 27

According to CMS, Morningside did not attempt alternative methods prior to installation of bed rails for Resident 27.  CMS Ex. 27 at 7.  An informed consent form shows Resident 27 required bed rails to “be able to pull into bed” and there were no potential risks from their use.  P. Ex. 7 at 1.  The form does not indicate whether Morningside attempted or considered alternatives to bed rails.  Id.  According to DCS Ragsdale and DON Barr, and a signed statement by ADON Pereyda, the resident required bed rails due to his advanced Parkinson’s disease.  P. Ex. 6; P. Ex. 40 at 12; P. Ex. 41 at 10.  DCS Ragsdale and DON Barr testified Resident 27 previously had an over-bed trapeze to assist him with up-and-down movement but the trapeze did not allow him to move side-to-side and there were no other alternatives that would have allowed Resident 27 to move side-to-side in his bed.  P. Ex. 40 at 12; P. Ex. 41 at 10. 

Resident 29

CMS alleges Morningside did not assess Resident 29, obtain informed consent, or attempt alternatives before installing bed rails for the resident.  CMS Ex. 27 at 7. 

Resident 29’s care plan showed the physician ordered side rails for safety and assistance with bed mobility.  P. Ex. 8.  DCS Ragsdale and DON Barr testified Resident 29 indicated to staff she wanted bed rails because the bed rails helped her to sit up in bed.  P. Ex. 40 at 13; P. Ex. 41 at 10; see also P. Ex. 9.  Additionally, staff discussed the fact that there were no suitable alternatives with the resident and her family.  P. Ex. 40 at 13; P. Ex. 41 at 11; see also P. Ex. 9. 

Resident 49

CMS alleges Resident 49’s informed consent form was incomplete and Petitioner did not assess the resident for the use of bed rails or attempt alternative methods before installing bed rails.  CMS Ex. 30 at 3.  Resident 49’s care plan documented physician-ordered side rails for assistance with bed mobility.  P. Ex. 10.  But a bed rail use assessment for Resident 49 appears to have been completed on the day of the survey.  CMS Ex. 23 at 1-3.  The record also includes an informed consent form which is completely blank except for the resident’s name, room number, and signature dated February 3, 2019.  Id. at 4-6.  DCS Ragsdale and DON Barr testified Resident 49 and her family requested bed rails even though they were aware of the risks associated with handi-bars.  P. Ex. 40 at 13; P. Ex. 41 at 11.

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Resident 61

According to the surveyor, Morningside assessed Resident 61 for the use of bed rails and obtained her informed consent but did not attempt alternatives prior to installing bed rails.  CMS Ex. 27 at 7. 

A physician ordered bilateral small transfer rails at Resident 61’s request.  P. Ex. 11 at 4; P. Ex. 27 at 2.  DCS Ragsdale and DON Barr admit Morningside did not attempt any alternatives because as the assessment on the informed consent form indicates (P. Ex. 27 at 3), no other alternatives were available to accomplish the purpose of handi-bars.  P. Ex. 40 at 14; P. Ex. 41 at 11-12. 

However, Petitioner also submitted an email that contradicts DCS Ragsdale’s and DON Barr’s testimony that no alternatives were available.  The email, which appears to have been sent by a staff member to the facility’s administrator, states that although the resident “doesn’t require bedrails, . . . she does require an alternative device on the left side for transfer support” and “the [interdisciplinary team] would determine which alternative device [was] most appropriate.”  Id.

Resident 72

CMS alleges Morningside did not assess Resident 72, obtain informed consent, or attempt alternatives before installing bed rails for the resident.  CMS Ex. 30 at 5.  DCS Ragsdale and DON Barr testified Resident 72 required bed rails because she was legally blind and it was extremely unsafe for her to be in bed without an assistive device.  P. Ex. 40 at 14; P. Ex. 41 at 12; see P. Ex. 13.  Additionally, they testified that no other alternatives could accomplish this therapeutic treatment objective.  Id. 

Resident 409

CMS alleges Resident 409’s informed consent form was incomplete and Petitioner did not assess the resident for the use of bed rails or attempt alternative methods before installing bed rails.  CMS Ex. 5 at 22.  That form, signed by Resident 409 on May 7, 2019, shows the resident consented to the use of bed rails and understood the risks and benefits of their use.  P. Ex. 14 at 2.  But the form does not reflect the facility considered or attempted alternatives prior to installing bed rails.  Id. 

DCS Ragsdale and DON Barr testified ADON Pereyda’s statement (P. Ex. 14) confirms Resident 409 used bed rails for turning and repositioning in bed and transferring safely from his bed into his wheelchair.  P. Ex. 40 at 15; P. Ex. 41 at 12.  They testified Morningside assessed Resident 409 for use of bed rails and Resident 409 consented to the bed rails on May 7, 2019, the day after his admission.  Id.  Further, they stated no other alternatives could accomplish the resident’s required therapeutic objectives.  Id.

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Petitioner argues 42 C.F.R. § 483.25(n) does not contain specific documentation requirements, confirmed by the surveyors during the hearing.  P. Closing Br. at 11; Tr. at 43, 48, 57, 94.  While no specific documentation is required, the facility must still demonstrate compliance with the regulation.  Petitioner relies on testimony from DCS Ragsdale and DON Barr to support its claims that Morningside complied with the regulation.  DCS Ragsdale’s and DON Barr’s testimony are insufficient to establish compliance with the regulation.  Their testimony does not indicate they personally assessed residents, obtained informed consent, attempted alternatives, or discussed bed rail use with the residents and their families.  ADON Pereyda statements are unsworn and therefore of limited probative value.  More significant, the record contains no documentary evidence to corroborate DCS Ragsdale’s and DON Barr’s testimony.  Morningside has not established that it obtained informed consent, conducted assessments for appropriateness of bed rail use, or attempted alternatives to bed rails for Residents 12, 22, 29, 49, 72, and 409.  Additionally, Morningside did not try alternatives to bed rails for Residents 27 and 61. 

Petitioner also argues the surveyors did not interview the residents or their families, treating physicians, nursing staff, or therapists, or ADON Pereyda regarding the use of bed rails.  P. Closing Br. at 11-12, 17; Tr. at 24-25, 43-45, 55-56, 63, 105.  Petitioner points out Surveyor Galvan acknowledged that one of the ways to assess a resident for side rails is to discuss the risks and benefits with the resident, family, power of attorney, or responsible party.  Tr. at 93.  Petitioner additionally notes Surveyor Galvan explained it would be important to know the preferences of the resident and resident’s family.  Tr. at 100-101. 

Petitioner misstates the burden of proof.  Once CMS has made a prima facie case, which CMS has done, the burden shifts to Petitioner to demonstrate by a preponderance of the evidence that it complied substantially with 42 C.F.R. § 483.25(n)(1)-(4).  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., No. 98-3789 (GEB) (D.N.J. May 13, 1999).  Moreover, to the extent Petitioner suggests an improper survey process, inadequate survey performance does not invalidate adequately documented deficiencies.  42 C.F.R. § 488.318(b)(2); see also Avon Nursing Home, DAB No. 2830 at 11 (2017) (citing Sunshine Haven of Lordsburg, DAB No. 2456 at 21 (2012)).  Whether or not the surveyors interviewed the residents or their family members, physicians, therapists, or nursing staff, the facility was still required to comply with regulation. 

Petitioner maintains there were no alternatives to bed rails that could meet the residents’ needs.  P. Br. at 9-15; P. Closing Br. at 12-18.  Although DCS Ragsdale and DON Barr testified no other alternatives could accomplish the therapeutic objectives of bed rails, they did not explain how the facility made those determinations.  P. Ex. 40 at 10, 12-15; P. Ex. 41 at 8, 9, 11, 12.  The witnesses did testify Morningside attempted an over-the-bed trapeze as an alternative for Resident 27, which did not meet his needs, but the

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facility did not document the use of an over-the-bed trapeze as an attempted but unsuccessful alternative on Resident 27’s informed consent form or anywhere else in his medical record.  P. Ex. 40 at 12; P. Ex. 41 at 10; see P. Ex. 7 at 1.  Even where less restrictive alternatives are not available, Morningside must still establish it considered all alternatives and settled on bed rails to be in compliance with the regulation.  The record does not reflect any effort by Morningside to use appropriate alternatives prior to installing bed rails for Residents 12, 22, 27, 29, 49, 61, 72, 409. 

Additionally, the medical record must contain a record of the resident’s assessments.  42 C.F.R. § 483.70(i)(1).  Petitioner clarified with Surveyor LeMay that although the regulation does not specify where an assessment needed to be contained in a medical record, “what you want to see is that the facility did it in some form and that there’s some record of it somewhere.”  Tr. at 58.  Petitioner also provided some examples, such as the assessment section on the informed consent form or a nurse’s note, which Surveyor LeMay confirmed was appropriate.  Id.  However, although Petitioner’s witnesses testified that facility staff discussed benefits and risks of bed rails with these residents and their families, there is no contemporaneous evidence from the residents’ medical records documenting these discussions. 

Petitioner relies on DCS Ragsdale’s and DON Barr’s testimony and ADON Pereyda’s statements to assert the residents required bed rails because of their medical conditions.  P. Br. at 9-15; P. Closing Br. at 12-18.  Petitioner also points out Resident 22 requested bed rails and Residents 29 and 49 had physician’s orders for bed rails.  P. Br. at 11-13; P. Closing Br. at 14-16.  But a physician’s order does not obviate a facility’s obligation to assess a resident, obtaine the resident’s consent, or try alternatives to bed rails.  Even if a resident personally requested bed rails, Morningside was still obligated to ensure bed rails were appropriate for the resident and that residents understood the benefits and risks associated with bed rails.  As Surveyor LeMay testified, while it is important to follow a physician order and consider a resident’s request for bed rails, a facility must still comply with regulatory requirements.  Tr. at 48, 49, 52. 

Finally, Petitioner argues CMS cannot establish a prima face case of noncompliance for Residents 12 and 409 because CMS withdrew the testimony of the surveyor who cited Petitioner with this deficiency related to these two residents.  P. Closing Br. at 10.  Although Petitioner disputes the findings in the SOD, Petitioner has not presented evidence to rebut CMS’s evidence.  See Oxford Manor, DAB No. 2167 at 2 (citing Batavia Nursing and Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing and Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005)).Moreover, even if I conclude CMS did not establish a prima facie case of noncompliance for Residents 12 and 409, Petitioner did not comply with the regulation when installing bed rails for Residents 22, 27, 29, 49, 61, and 72.

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Petitioner established it complied with the regulation prior to installing bed rails for Resident 21.  However, Petitioner failed to prove that it obtained informed consent, assessed entrapment risk, or attempted alternatives to bed rails for Residents 12, 22, 29, 49, 72, and 409.  Further, Petitioner has not shown it attempted or considered alternatives before installing bed rails for Residents 27 and 61.  Accordingly, Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(n)(1)-(4). 

10. Petitioner was not in substantial compliance with 42 C.F.R. § 483.60(i)(1), (2) (F812) because it failed to store, prepare, distribute, and serve food in accordance with professional standards for food service safety. 

A facility must procure food from sources approved or considered satisfactory by federal, state, or local authorities, and store, prepare, distribute, and serve food in accordance with professional standards for food service safety.  42 C.F.R. § 483.60(i)(1).  A facility must also store, prepare, distribute, and serve food in accordance with professional standards for food service safety.  42 C.F.R. § 483.60(i)(2). 

The Food and Drug Administration’s Food Code requires food employees to clean their hands and exposed portions of their arms immediately before engaging in food preparation, during food preparation, as often as necessary to remove soil and contamination, and to prevent cross contamination when changing tasks, and after engaging in activities that contaminate the hands.  CMS Ex. 17 at 2-4. 

CMS alleges Petitioner failed to store, prepare, distribute, and serve food in accordance with professional standards for food service safety.  CMS Br. at 19; CMS Closing Br. at 8-9.  Surveyor Samuel-Worsham found the chest freezer in the main kitchen had approximately a half inch of ice build-up on all the inside walls.  CMS Ex. 5 at 32.  The surveyor observed peeling paint and rusty counter legs under the sink and garbage disposal.  Id.  Surveyor Samuel-Worsham also documented:  a cook did not wash his hands before returning to food prep after touching a trash can lid; a food service supervisor did not wash his hands in between a glove change and continued to prepare fried apples; two cooks did not cover their mustaches; and a food service worker did not change gloves or wash hands before going to a clean area after handling dirty dishes.  Id. at 32-34. 

Petitioner asserts CMS cannot establish its prima facie case since CMS withdrew the testimony of the surveyor who wrote this deficiency.  P. Closing Br. at 18.  Petitioner points to its witness testimony (P. Exs. 40-42) and pre-hearing brief, but none of the witness testimony includes testimony about this deficiency and it was not discussed at the hearing or in Petitioner’s pre­‑hearing brief.  Because Petitioner did not dispute the allegations in the SOD, I conclude Petitioner was not in substantial compliance with 42 C.F.R. § 483.60(i)(1), (2).

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11. Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.20(f)(5), 483.70(i)(1)-(5) (F842) because Petitioner failed to transcribe a physician order into Resident 11’s electronic record.

In accordance with accepted professional standards and practices, a facility must maintain medical records on each resident that are complete, accurately documented, readily accessible, and systematically organized.  42 C.F.R. § 483.70(i)(1).  The medical record must contain: 

(i) Sufficient information to identify the resident;
(ii) A record of the resident’s assessments;
(iii) The comprehensive plan of care and services provided;
(iv) The results of any preadmission screening and resident review evaluations and determinations conducted by the State;
(v) Physician’s, nurse’s, and other licensed professional’s progress notes; and
(vi) Laboratory, radiology and other diagnostic services reports as required under § 483.50. 

42 C.F.R. § 483.70(i)(5). 

Resident 11 was initially admitted to Morningside on October 7, 2017 and readmitted on June 8, 2018.  CMS Ex. 19 at 1.  His diagnoses included acute and subacute endocarditis, benign prostatic hyperplasia with lower urinary tract symptoms, muscle weakness, gastroesophageal reflux disease without esophagitis, obstructive and reflux uropathy, and dysphagia.  Id. at 2. 

On November 6, 2018, the facility ordered Resident 11 to be placed on a nectar thick liquids/thin liquids with provale cup diet due to his swallowing difficulties.  CMS Ex. 5 at 39; CMS Ex. 19 at 7; P. Br. at 15.  It appears the facility changed the resident’s diet to mechanical soft with ground meat diet beginning on November 19, 2018.  CMS Ex. 19 at 7.  On February 15, 2019, a physician discontinued the nectar thick liquids diet.  CMS Ex. 5 at 39; P. Br. at 15.  However, staff did not transcribe the February 15, 2019 order into Resident 11’s clinical record.  CMS Ex. 5 at 39.  Morningside’s dietitian confirmed staff did not transcribe the February 15, 2019 physician order into Resident 11’s electronic record.  Id.  

CMS alleges Morningside did not maintain complete and accurate records for Resident 11 because it did not transcribe the February 15, 2019 physician order to discontinue nectar thick liquids into the resident’s record.  CMS Br. at 19; CMS Closing Br. at 9. Petitioner asserts CMS cannot establish its prima facie case since CMS withdrew the testimony of the surveyor who wrote this deficiency.  P. Closing Br. at 18.  However, Petitioner does not dispute staff did not enter the February 15, 2019 order to discontinue nectar thick liquids.  Petitioner instead attempts to justify its noncompliance by asserting

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the licensed speech therapist who evaluated Resident 11 two months after the February 15, 2019 order recommended the resident continue with nectar thick liquids due to the high risk of aspiration.  P. Br. at 16; P. Ex. 40 at 16; P. Ex. 41 at 13; see P. Ex. 39.  Resident 11’s speech therapy discharge summary showed the resident was on nectar thick/thin liquids.  CMS Ex. 19 at 19.  Petitioner argues the facility should not be penalized for the following the speech therapist’s recommendations.  P. Br. at 16; P. Ex. 40 at 16; P. Ex. 41 at 14. 

Petitioner’s argument misses the point.  The speech therapist’s determination that the resident should continue nectar thick liquids is not relevant to whether Petitioner maintained adequate records for Resident 11.  Morningside was required to maintain complete and accurate records for Resident 11, which included timely transcription of the February 15, 2019 order to discontinue nectar thick liquids.  It was essential for Morningside to update Resident 11’s record so all staff were aware of the change in the resident’s diet.  In any event, even assuming a speech therapist’s discharge summary could override a physician’s order, it certainly cannot have retroactive effect.  There is no dispute Resident 11’s physician modified the resident’s dietary restrictions on February 15, 2019.  There is also no dispute Morningside did not document that order.  Its reliance on the evaluation of a speech therapist two months after that order to justify failing to modify Resident 11’s diet is without merit.  Petitioner did not substantially comply with 42 C.F.R. §§ 483.20(f)(5), 483.70(i)(1)-(5). 

12. The per‑day CMPs imposed by CMS from May 6 through May 17, 2019 and May 18, 2019 through June 9, 2019 are reasonable.

CMS is authorized to impose enforcement remedies against a facility that is not in substantial compliance with participation requirements.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  Among other enforcement remedies, CMS may impose a per-day CMP for the number of days a facility is not in substantial compliance.  42 C.F.R. § 488.430(a).  At the time CMS imposed the remedies in this case, per-day CMPs ranged from either $107 to $6,418 per-day for less serious noncompliance or $6,525 to $21,393 per-day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  42 C.F.R. § 488.438(a)(1); see 83 Fed. Reg. 51,369, 51,380 (Oct. 11, 2018). 

In determining the reasonableness of the penalty amount imposed, I look to the factors set forth at 42 C.F.R. §§ 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors include the seriousness of the deficiency, the facility’s compliance history, its financial condition, and its degree of culpability.  Id.  The Board has held that the CMP amount selected by CMS is presumptively reasonable based on the regulatory factors listed above, and that the burden is on the SNF “to demonstrate, through argument and the submission of evidence addressing the regulatory factors, that

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a reduction [in the penalty amount] is necessary to make the CMP amount reasonable.”  Crawford Healthcare & Rehab., DAB No. 2738 at 19 (2016). 

Petitioner argues the CMP amount should be much lower because there is no surveyor testimony to support the CMP imposed for Petitioner’s violation of 42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f).  P. Closing Br. at 22.  However, as I have explained, in nearly every instance CMS established a prima facie case of noncompliance supported by documentary evidence of record which Petitioner failed to rebut. 

The $9,030 per-day CMP selected by CMS for the period of immediate jeopardy is at the low end of the upper CMP range, while the $415 per-day CMP selected by CMS for the non-immediate jeopardy is near the regulatory minimum.  42 C.F.R. § 488.438(a)(1).  With respect to the factors set forth at 42 C.F.R. § 488.438(f), Petitioner does not claim its financial condition affects its ability to pay the CMP.  CMS asserts that Morningside’s history of noncompliance supports the CMP amount.  CMS Closing Br. at 9.  CMS has proffered testimony from the facility’s Automated Survey Processing Environment Enforcement Module report showing five noncompliance cycles with one enforcement action, the one at issue in this case, since January 1, 2016.  CMS Ex. 26 at 3; see Tr. at 145-146.  This limited history of noncompliance does not support a higher-range CMP and is consistent with the per-day amounts selected by CMS.  

Of the remaining regulatory factors, Petitioner only addresses the seriousness of the deficiencies.  P. Closing Br. at 23.  Petitioner argues the facility did not commit any deficient practices, and even if it did, its actions did not result in any resident harm.  P. Br. at 23.  Petitioner asserts Resident 409 did not have active MRSA and did not come within three feet of any staff member or resident, and staff cleaned the shower after Resident 409 showered with an anti-viral disinfectant effective against MRSA and Pseudomonas aeruginosa.  P. Closing Br. at 23. 

I do not find Petitioner’s argument persuasive.  Petitioner’s belief that Resident 409 likely did not have an active MRSA infection does not excuse its obligation under the regulation to maintain and follow an adequate infection control policy.  The facility maintained Resident 409’s MRSA diagnosis upon his admission and did not obtain a culture confirming its absence until 11 days after his admission.  For those 11 days, Morningside was required follow the regulations and its own policies to prevent the development and transmission of MRSA in its facility.  Even if by fortunate happenstance no resident or member of staff acquired MRSA, Petitioner’s failure to follow its infection control policies will increase the likelihood of the spread of MRSA or another highly contagious infectious disease with significant adverse consequences  among its elderly and vulnerable residents.  The seriousness of this noncompliance is difficult to overstate.

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Regarding the non-immediate jeopardy noncompliance, Petitioner argues the deficiencies, cited at scope and severity levels “D” and “E,” are not serious and do not involve resident harm.  P. Closing Br. at 23.  Contrary to Petitioner’s assertion, deficiencies cited at scope and severity levels “D” and “E” are serious because they have the potential for more than minimal harm.  CMS cited Petitioner with four deficiencies concerning residents’ care plans and medical records.  Petitioner did not include critical information in two residents’ MDS assessments, develop and implement a baseline care plan for a resident within 48 hours of his admission to the facility, develop comprehensive care plans for five residents, or transcribe a physician order for a change in a resident’s nutritional status into the resident’s electronic record.  These failures were serious because they could have resulted in insufficient care and services provided to the facility’s residents.  Staff members could have endangered Residents 37 and 42 if they were unaware the residents needed to be transferred with a mechanical lift or harmed Resident 462 if they did not know about the resident’s NPO status.  Relatedly, Petitioner incorrectly transcribed a physician order for oxygen flow rate into a resident’s record, and only avoided giving Resident 29 the wrong amount of oxygen by ignoring the erroneously transcribed order.  This is not a safe way to provide care.  

Additionally, Petitioner’s failure to secure a resident’s oxygen tank had the potential to cause an accident dangerous to Resident 21 and nearby residents and staff.  Petitioner did not assess the propriety of bed rails or obtain informed consent for their use for eight residents.  Finally, Morningside’s kitchen staff did not comply with professional standards for safety, such as washing hands after touching a potentially contaminated object, placing all the facility’s residents at risk for foodborne illnesses.  All of these violations had the potential to threaten the safety, comfort, and wellbeing of Morningside’s residents.  They are all serious.  

I also find Petitioner highly culpable given its apparent nonchalance to the consequences of failing to follow its own infection control protocols for a resident diagnosed with a MRSA infection on admission.  Petitioner’s claim that no staff or residents happen to have come within three feet of Resident 409 is not true, but even if it were, demonstrates a lack of urgency or concern over the failure to follow its own infection protocols.  As I have discussed, at least three members of staff were likely to have come into close contact with Resident 409 with varying levels of exposure.  And even staff who did not come into direct contact with the resident could have spread an infection after touching contaminated objects with which he had come into close contact.  Petitioner’s failure to take precautions to prevent Resident 409 from spreading a severe and highly infectious disease throughout the facility, even when the facility itself deemed him infected with MRSA, shows a complete disregard and neglect of resident care and safety. 

Petitioner’s noncompliance with other participation requirements also suggest indifference, disregard, and neglect for resident care, comfort, and safety.  Many of the deficiencies related to Petitioner’s failure to maintain accurate and comprehensive

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medical records to account for residents’ needs.  Staff did not accurately or timely transcribe physician orders reflecting changes in residents’ statuses, did not develop comprehensive and baseline care plans to direct residents’ care, and did not include critical information in residents’ records to ensure staff were aware of the care and services residents required.  Petitioner also disregarded accident hazards and resident well-being when it failed to secure a resident’s oxygen tank, assess entrapment risk and determine the propriety of bed rails, and properly handle food to prevent foodborne illnesses.  Petitioner’s degree of culpability is consistent with the penalty amounts selected by CMS. 

Petitioner did not challenge the duration of the CMPs.  A facility bears the burden of showing its noncompliance was of shorter duration than alleged by CMS.  Owensboro Place & Rehab. Ctr.,DAB No. 2397 at 12 (2011) (citing Kenton Healthcare, LLC, DAB No. 2186 at 24-25 (2008); Lake Mary Health Care, DAB No. 2081 at 30 (2007)).  Therefore, I accept the duration as found by CMS. 

For these reasons, I conclude the imposition of a $9,030 per-day CMP from May 6 through 17, 2019 for the immediate jeopardy noncompliance and $415 per-day CMP from May 18, 2019 through June 9, 2019 for the non-immediate jeopardy noncompliance to be reasonable.  

VII.   Conclusion

For the foregoing reasons, I conclude that Petitioner was not in substantial compliance with the following deficiencies:  42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f); 42 C.F.R. § 483.20; 42 C.F.R. § 483.21(a)(1)-(3); 42 C.F.R. § 483.21(b)(1); 42 C.F.R. § 483.25(d)(1), (2); 42 C.F.R. § 483.25(i); 42 C.F.R. § 483.25(n)(1)-(4); 42 C.F.R. § 483.60(i)(1), (2); and 42 C.F.R. §§ 483.20(f)(5), 483.70(i)(1)-(5).  Further, Petitioner’s noncompliance with 42 C.F.R. § 483.80(a)(1), (2), (4)(e), (f) immediately jeopardized the health and safety of Petitioner’s residents.  Petitioner was in substantial compliance with 42 C.F.R. § 483.24(c)(1).  Finally, the $9,030 per-day CMP from May 6 through 17, 2019, and $415 per-day CMP from May 18, 2019 through June 9, 2019, for a total CMP of $117,905, are reasonable.

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Endnotes

¹  Scope and severity levels are designated by letters “A” through “L,” selected from the scope and severity matrix published in the State Operations Manual (SOM) Ch. 7, § 7400.5.1 (Rev. 63, Sep. 10, 2010), available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R63SOMA.pdf.  Facilities with deficiencies of levels A, B, or C remain in substantial compliance.  Id., citing 42 C.F.R. § 488.301.  Levels D, E, or F indicate a deficiency that presents no actual harm but has the potential for more than minimal harm that does not amount to immediate jeopardy.  Id.  Levels G, H, or I indicate a deficiency that involves actual harm that does not amount to immediate jeopardy.  Id.  Scope and severity levels J, K, and L contain deficiencies that constitute immediate jeopardy to resident health or safety.  Id.  The matrix specifies which remedies are required and optional at each level based upon the pervasiveness of the deficiency (isolated, pattern, or widespread). Id.

²  Petitioner did not identify the deficiency at 42 C.F.R. 483.21(a)(1)-(3) (F655) in its hearing request but did so in its pre-hearing and post-hearing briefs.

³  At the hearing, Petitioner confirmed the deficiency at 42 C.F.R. § 483.21(b)(3)(ii) was resolved during the Informal Dispute Resolution process.  Tr. at 7-8.

⁴  Petitioner did not submit a Petitioner’s Exhibit 12.  See Hearing Transcript (Tr.) at 10-11.

⁵  The Board has not specified the quantum of evidence necessary for CMS to show it met its prima facie burden but has observed CMS must produce “evidence related to disputed findings that is sufficient (together with any undisputed findings and relevant legal authority) to establish a prima facie case of noncompliance with a regulatory requirement.”  Evergreene Nursing Care Ctr., DAB No. 2069 at 7 (2007); see also Black’s Law Dict. (8th ed. 2004) at 1228 (“Prima facie” means generally that the evidence is ‘[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted’”).

⁶  During the survey, Surveyor Samuel-Worsham interviewed Assistant Director of Nursing (ADON) Serena Pereyda and recorded her to opine Resident 409 should have had an order for “droplet isolation” from admission and, acting on her own initiative, obtained such an order from “the Nurse Practitioner” (presumably, an individual overseeing Resident 409’s care).  CMS Ex. 5 at 43.

⁷  For droplet precautions, Morningside’s infection control policy required use of masks within 3 feet of the infected resident, color-coded signage on the resident’s doorway and chart, and to clean and disinfect any “common items” used by the resident before its use by another.  CMS Ex. 11 at 6.  It also required nursing staff to notify transport staff of an infected resident’s condition.  Id.  While the policy demands cleaning and disinfecting common “items,” it does not address cleaning of a communal location like a shared shower.  Even if I construed the communal shower to be a “common item,” the facility’s policy only requires cleaning and disinfection after use by an infected resident; it does not require use of PPE to do so.