Rio Hondo Healthcare, Inc. D/B/A Downey Post Acute, DAB CR6359 (2023)

DECISION

Rio Hondo Healthcare, Inc. D/B/A Downey Post Acute (Petitioner or facility) is a skilled nursing facility (SNF) located in Downey, California, which participates in the Medicare program.  Based on findings of an abbreviated survey completed by the California Department of Public Health (state agency) on August 27, 2020, the Centers for Medicare & Medicaid Services (CMS) determined that Petitioner was not in substantial compliance with three Medicare participation requirements.  Further, CMS found that one of the deficiencies, i.e., 42 C.F.R. § 483.24(a)(3), involving a failure to timely provide cardiopulmonary resuscitation (CPR) to a resident, immediately jeopardized the health and safety of residents. 

Based on the findings of noncompliance, including the immediate jeopardy finding, CMS imposed on Petitioner a civil money penalty (CMP) of $6,940 per day for three (3) days beginning August 10, 2020, and continuing through August 12, 2020, for a total amount of $20,820.  Although Petitioner abated the immediate jeopardy situation, CMS found that Petitioner did not fully return to substantial compliance with Medicare requirements until later.  Therefore, CMS imposed on Petitioner a $225 per-day CMP beginning

Page 2

August 13, 2020, which continued for 47 days through September 28, 2020, totaling $10,575.  The combined total for the CMPs imposed was $31,395. 

Based on the record in this case, I conclude that Petitioner was in substantial compliance with 42 C.F.R. § 483.24(a)(3) because a preponderance of the evidence shows that facility staff timely initiated CPR on an unresponsive resident.  However, I uphold the other two non-immediate jeopardy level deficiencies found by CMS, one of which Petitioner conceded.  As a result, I reduce the CMP imposed from August 10, 2020 through August 12, 2020 to $225 per day and uphold the $225 per-day CMP from August 13, 2020 through September 28, 2020, for the total CMP of $11,250. 

I. Legal Framework

The Medicare program “provides basic protection against the costs of . . . related post-hospital . . . care” for individuals over the age of 65 who are eligible for Social Security retirement benefits and for individuals under 65 who meet other criteria.  42 U.S.C. § 1395c.  Post-hospital care includes extended care services provided at an SNF.  42 U.S.C. §§ 1395f(a)(2)(B), 1395x(h)-(i). 

For Medicare program purposes, an SNF is an institution that is primarily engaged in providing skilled nursing care and/or rehabilitation services for its residents but is not primarily engaged in the care and treatment of mental diseases.  42 U.S.C. §§ 1395x(j), 1395i-3(a)(1).  Because an SNF is a “provider of services” in the Medicare program, each SNF that participates in the program must file a provider agreement with the Secretary of Health and Human Services (Secretary).  42 U.S.C. §§ 1395cc(a), 1395x(u). 

In addition to complying with the terms of the provider agreement, a participating SNF must meet a variety of ongoing statutory requirements regarding how it provides services, maintains the rights of its residents, and administers its facility.  42 U.S.C. § 1395i-3(a)(3), (b)-(d).  Further, SNFs must comply with “such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”¹  42 U.S.C. § 1395i-3(d)(4)(B); see 42 U.S.C. § 1395i-3(c)(1)(xi), (f).  The Secretary has promulgated regulations to establish those additional requirements.  See 42 C.F.R. pt. 483, subpt. B.² 

Page 3

When an SNF fails to meet a statutory or regulatory participation requirement, then the SNF has a “deficiency.”  42 C.F.R. § 488.301; see 42 U.S.C. § 1395i-3(h)(1).  “Noncompliance” means “any deficiency that causes a facility to not be in substantial compliance.”  42 C.F.R. § 488.301; see also 42 U.S.C. § 1395i-3(h)(3).  To maintain “substantial compliance,” an 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. 

Broadly, noncompliance that subjects an SNF to enforcement remedies is divided into two levels.  One level comprises deficiencies that immediately jeopardize the health or safety of residents and the other level is composed of deficiencies that do not.  42 U.S.C. § 1395i-3(h)(1).  “Immediate jeopardy” exists when “the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301. 

The Secretary has the duty to enforce the statutory and regulatory participation requirements for SNFs.  42 U.S.C. § 1395i-3(f)(1).  To do so, the Secretary contracts with state agencies to conduct surveys to determine whether SNFs are in substantial compliance.  42 U.S.C. §§ 1395aa(a), 1395i-3(g); 42 C.F.R. § 488.10.  Standard surveys are unannounced and occur at least once every 15 months.  42 U.S.C. § 1395i-3(g)(2)(A)(i), (iii)(I).  State agencies also conduct investigations into complaints against SNFs.  42 U.S.C. § 1395i-3(g)(1)(C), (4).  When the results of a survey show that an SNF is not in substantial compliance with program participation requirements, the Secretary may impose enforcement remedies on the SNF.  42 U.S.C. § 1395i-3(h)(2); 42 C.F.R. § 488.406.  When CMS selects an enforcement remedy to impose, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.  See 42 C.F.R. § 488.404(a)-(b). 

One such remedy is a CMP.  42 U.S.C. § 1395i-3(h)(2)(B)(ii).  CMS may impose a per‑instance CMP for each instance of noncompliance or a per‑day CMP for the number of days an SNF is not in substantial compliance.  42 U.S.C.  § 1395i‑3(h)(2)(A), (h)(2)(B)(ii)(I); 42 C.F.R. § 488.430(a).  For CMPs assessed on or after January 17, 2020, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows:  $2,259 to $22,584 for per-instance CMPs; $113 to $6,774 per day for less serious noncompliance; or $6,888 to $22,584 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3 (2020); 85 Fed. Reg. 2869, 2870, 2880 (Jan. 17, 2020); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments). 

If CMS imposes a CMP based on a finding of substantial noncompliance, then the SNF may request a hearing before an administrative law judge (ALJ) to challenge CMS’s initial determination of noncompliance that led to the imposition of an enforcement remedy and/or the level of noncompliance (if a successful challenge to the level would affect the range of CMP amounts imposed on the SNF).  42 U.S.C. §§ 1320a-7a(c)(2),

Page 4

1395i‑3(h)(2)(B)(ii); 42 C.F.R. §§ 488.330(e)(3)(ii), 488.408(g)(1), 488.434(a)(2)(viii), 498.3(b)(13)-(14), (d)(10); see also 5 U.S.C. §§ 554, 556.  However, CMS’s choice of remedies is not reviewable.  42 C.F.R. §§ 488.438(e)(2), 488.408(g)(2), 498.3(b)(13). 

If an SNF challenges the existence of a deficiency, CMS must make a prima facie case that the SNF failed to substantially comply with federal participation requirements and, if such a showing is made, the SNF must then prove substantial compliance by a preponderance of the evidence.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997); see Batavia Nursing & Convalescent Inn, DAB No. 1911 (2004); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001).  If an SNF challenges CMS’s determination as to the level of noncompliance, CMS’s determination must be upheld unless it is clearly erroneous.  42 C.F.R. § 498.60(c)(2). 

If an ALJ concludes that there was a basis for imposing a CMP on an SNF, then the SNF may dispute the amount of the CMP.  The ALJ’s review of the CMP amount is limited to considering the statutory and regulatory factors for setting a CMP amount.  42 C.F.R. § 488.438(e)(3); see 42 U.S.C. §§ 1320a-7a(d), 1395i-3(h)(2)(B)(ii)(I); 42 C.F.R. § 488.438(f).  The ALJ may not reduce a CMP to zero.  42 C.F.R. § 488.438(e)(1). 

Either the SNF or CMS may appeal an ALJ’s decision.  42 C.F.R. § 498.80. 

II. Background and Procedural History

On August 27, 2020, the state agency completed an abbreviated survey of Petitioner’s facility based on a complaint filed with the state agency.  The state agency issued a Statement of Deficiencies (SOD) finding Petitioner to be noncompliant with the following Medicare requirements for skilled nursing facilities: 

• Tag F-580 (S/S = H) 42 C.F.R. § 483.10(g)(14)(i)-(v), (15) (Notify of Changes);
• Tag F-678 (S/S = J) 42 C.F.R. § 483.24(a)(3) (CPR); and
• Tag F-692 (S/S = G) 42 C.F.R. § 483.25(g)(1)-(3) (Nutrition/Hydration Status Maintenance).

CMS Ex. 1. 

Based on the SOD, on August 27, 2020, Los Angeles County Public Health Department, apparently acting on behalf of the state agency, issued an initial determination imposing an unspecified CMP, termination of Petitioner’s Medicare provider agreement (effective February 27, 2021), and a denial of payment for new admissions (DPNA) (effective November 27, 2020).  The initial determination also noted that the state agency identified

Page 5

immediate jeopardy to resident health and safety (§ 483.24(a)(3)) on August 10, 2020, but that the state agency determined that the immediate jeopardy situation was removed on August 13, 2020.  CMS Ex. 2. 

On March 15, 2021, CMS issued an initial determination imposing a total CMP in the amount of $31,395.  CMS imposed $6,940 per-day CMP from August 10, 2020 through August 12, 2020, and a $225 per-day CMP for 47 days from August 13, 2020, through September 28, 2020.  Although the initial determination noted the deficiency at Tag F-678 (i.e., 42 C.F.R. § 483.24(a)(3)), it did not expressly premise the CMP solely on that deficiency.  Finally, the initial determination noted that the state agency had revisited Petitioner’s facility and found Petitioner to have returned to substantial compliance on September 29, 2020; therefore, neither a DPNA nor the termination would go into effect.  DAB E-File Dkt. C-21-765, Document # 1a. 

On May 14, 2021, Petitioner filed a request for hearing before an ALJ to dispute the initial determination.  On May 18, 2021, I ordered this case consolidated with another matter docketed under C-21-764; however, I severed this case from C-21-764 after Petitioner objected to consolidation.  The Civil Remedies Division issued my Standing Prehearing Order (SPO), which established prehearing submission procedures and dates for the submission of prehearing exchanges.  

On August 13, 2021, CMS filed its prehearing exchange consisting of a brief  and 18 exhibits, one of which was written direct testimony from Jessica Castillo, the lead surveyor (CMS Ex. 17).  On September 20, 2021, Petitioner submitted a prehearing exchange that included a prehearing brief (P. Prehearing Br.) and 20 proposed exhibits, two of which were written direct testimony from two witnesses (P. Exs. 7-8), as well as four declarations from an additional four individuals (P. Exs. 5-6, 18-19).  Petitioner also requested to cross-examine CMS’s witness.  CMS filed a reply brief in which it declined to cross-examine Petitioner’s witnesses. 

On December 3, 2021, I issued a Notice of Hearing in which I set a hearing for February 8, 2022, in this case and admitted all of the parties’ proposed exhibits into the record. 

On February 8, 2022, I conducted a video teleconference hearing at which Surveyor Castillo was cross-examined.  At the end of the hearing, I set a post-hearing briefing schedule and directed the parties to provide all arguments that they want me to address in the post-hearing brief.  Hearing Transcript (Tr.) 114-15; see also Notice of Receipt of Transcript and Order Setting Post-Hearing Briefing Schedule at 1.  

After the hearing, CMS filed a post-hearing brief (CMS Br.).  Petitioner filed a post-hearing brief (P. Br.), another proposed exhibit (P. Ex. 21), and Petitioner’s Motion to

Page 6

Add Additional Exhibit (P. Motion).³  CMS filed a reply brief (CMS Reply) and objection to Petitioner’s additional exhibit (CMS Objection). 

III.  Evidentiary Ruling

Petitioner stated that it filed Petitioner Exhibit 21 as rebuttal evidence to the testimony of Surveyor Castillo at the hearing.  Petitioner believes that the documents in Petitioner Exhibit 21 “provide a basis for [Petitioner’s] contentions that [Surveyor Castillo] was mistaken in portions of her testimony on cross-examination regarding the documents she reviewed/had access to when issuing the serious harm deficiencies for 42 CFR § 483.10(g)(14)(i)-(iv)(15) and 42 CFR § 483.25(g)(1)-(3).”  P. Motion at 1.  Petitioner asserted that “the surveyor cannot place the burden on the facility to provide all the records to the surveyor for her review.  She had unrestricted access for her investigation.”  P. Motion at 2.  Further, Petitioner stated that it received 17 relevant documents from the state agency based on a discovery request in a state proceeding concerning the medical records of Resident 1, showing that the surveyor had those documents during the survey in the present case.  Petitioner also asserted that those documents show Petitioner’s substantial compliance in this case.  P. Motion at 2. 

CMS objected to Petitioner’s motion.  CMS stated that Petitioner had until September 20, 2021, to submit exhibits in these proceedings but filed Petitioner Exhibit 21 on May 31, 2022.  CMS Objection at 1.  While not conceding that Petitioner Exhibit 21 shows that the surveyor had access to the documents in that exhibit at the time of the survey, CMS objected that such a question is irrelevant because ALJs hold de novo proceedings to determine the existence of deficiencies and not to review surveyor performance.  CMS Objection at 1.  CMS asserted that the issue is whether Petitioner proved, by a preponderance of the evidence, that it was in substantial compliance with Medicare program requirements.  CMS Objection at 1-2. 

CMS is correct that, under my Standing Prehearing Order, Petitioner’s submission of additional evidence is untimely.  Standing Prehearing Order ¶ 7(b), (d)(iii); see 42 C.F.R. § 498.60(b)(3) (ALJ decides the order in which evidence and argument is presented in a case); see also 42 U.S.C. § 1320a7a(c)(4)(H) (ALJ may refuse to consider any motion or other action untimely filed under an order or procedure.).  Given Petitioner’s burden to show it was in substantial compliance, following CMS’s submission of a prima facie case, Petitioner needed to submit all documents that showed substantial compliance within the schedule provided in the Standing Prehearing Order.  All of the medically substantive documents in Petitioner Exhibit 21 appear to be from Petitioner’s records (P. Ex. 21 at 26-42); therefore, Petitioner was in the position to timely submit them. 

Page 7

In addition, I agree with CMS that, to the extent that Petitioner wants to use Petitioner Exhibit 21 (or parts of Petitioner Exhibit 21) to show that Surveyor Castillo performed her duties inadequately, that is not a basis for reversing the deficiencies in this case.  42 C.F.R. § 488.318(b).  Accordingly, I find the portions of Petitioner Exhibit 21 that have been submitted to raise surveyor performance as a defense to be irrelevant. 

Therefore, I sustain CMS’s objection and I exclude Petitioner Exhibit 21 from the record. 

IV. Issues

The issues in this case are:  

1. Whether Petitioner was in substantial compliance with the Medicare requirements for skilled nursing facilities at 42 C.F.R. §§ 483.10(g)(14)(i)-(v), (15) and 483.24(a)(3).⁴
2. If Petitioner was not in substantial compliance with 42 C.F.R. § 483.24(a)(3), was CMS’s finding that the noncompliance immediately jeopardized the health and safety of residents clearly erroneous.⁵
3. If Petitioner was not in substantial compliance with Medicare requirements, whether the amount of the CMP that CMS imposed is appropriate under applicable statutory and regulatory factors. 42 U.S.C. § 1320a-7a(d); 42 C.F.R. § 488.438(f).

Page 8

V. Findings of Fact, Conclusions of Law and Analysis

1. 1. Resident 1 was admitted to Petitioner’s facility on January 26, 2020, following a stay at a hospital. Resident 1 was 85 years old with multiple diagnoses, including sepsis, urinary tract infection, and Parkinson’s Disease with dementia. 

In early 2020, Resident 1 was an 85-year-old woman.  CMS Ex. 7 at 7.  On January 24, 2020, Resident 1 was admitted to PIH Health Hospital (PIH).  CMS Ex. 7 at 1.  PIH identified sepsis and urinary tract infection (UTI) as primary diagnoses and noted a variety of secondary diagnoses that included Parkinson’s disease with dementia, major depression, and acute dehydration that was “secondary to decrease IV fluids from urosepsis and decreased oral intake.”  CMS Ex. 7 at 1, 4. 

On January 26, 2020, Resident 1 transferred to Petitioner’s facility “for skilled PT/OT and IV antibiotic secondary to recent hospitalization with dx of Encephalopathy, sepsis secondary to UTI requiring IV antibiotic meropenem BID until 2/5/20.”  CMS Ex. 7 at 7. 

On January 29, 2020, a nurse practitioner (NP) determined that Resident 1 needed a blood transfusion for “d/t low Hemoglobin levels.”  P. Ex. 4 at 3. 

On January 31, 2020, Resident 1’s physician examined Resident 1.  P. Ex. 4 at 12-14.  The physician noted the following diagnoses:  muscle weakness; sepsis; hyperthyroidism; essential hypertension; type 2 diabetes; dementia; metabolic encephalopathy; recurrent urinary tract infection; Parkinson’s disease; osteoporosis; and anemia.  P. Ex. 4 at 13.  The physician provided a plan covering each diagnosis.  P. Ex. 4 at 13.  The physician noted under “Goals” that Resident 1 “does not have capacity to make medical decisions.  FULL CODE/trial period of artificial nutrition.”⁶  P. Ex. 4 at 13.  The physician also indicated that it would not be surprising if Resident 1 dies within the next year; however, the physician did not think Resident 1 had less than six months to live.  P. Ex. 4 at 13.  Finally, the physician provided the following synopsis of the discussion he had with Resident 1’s son: 

Physician Order for Life Sustaining Treatment (POLST) . . . Attempt Resuscitation/CPR. . . . Full Treatment – primary goal of prolonging life by all medically effective means.  In addition to treatment described in Selective Treatment and Comfort-Focused Treatment, use intubation, advanced airway interventions, mechanical ventilation, and cardioversion as

Page 9

indicated. . . . Trial period of artificial nutrition, including feeding tubes[.]

P. Ex. 4 at 14.

According to an NP’s February 6, 2020 report following an examination, Resident 1 had at least 19 current medications and a problem list of many ailments going back to July 29, 2019.  CMS Ex. 7 at 7.  While the NP indicated that it would not be surprising if Resident 1 died within a year, the NP also did not believe that Resident 1 had less than six months to live.  CMS Ex. 7 at 8.  The NP noted that Resident 1 did not have the capacity to understand and make medical decisions and that Resident 1 was “FULL CODE.”  CMS Ex. 7 at 8.  The report did not mention Resident 1’s nutritional status. 

2. 2. Upon Resident 1’s admission, Petitioner’s staff created a care plan identifying nutrition as a problem. The plan listed interventions for that problem, such as maintaining a weight of no less than 105 pounds.  From January 27, 2020 through February 3, 2020, Petitioner’s staff sporadically documented the amount of food Resident 1 was eating at meals.  On February 3, 2020, interventions were added to the care plan that included informing Resident 1’s physician when Resident 1 had unexpected weight loss or signs and symptoms of malnutrition.  Another addition to the plan was an evaluation by a registered dietitian (RD), who would make dietary recommendations.  From February 4, 2020, through February 12, 2020, facility staff documented that Resident 1 was often eating half or less than half of her meals.  From January 27, 2020, to February 11, 2020, Resident 1 lost 7 pounds of weight, going from 108 pounds to 101 pounds.  Resident 1 died on February 12, 2020, at the facility.   

On January 26, 2020, Resident 1’s first day at the facility, a licensed vocational nurse (LVN) created the following inputs in Resident 1’s care plan: 

• A focus for Resident 1 was her “nutritional problems or the potential . . . needs feeding assistance, impaired skin . . . at risk for weight changes due to increased nutrition needs”;
• A goal for Resident 1 was to “maintain adequate nutritional status as evidenced by maintaining weight 108# =/-3 with no s/sx of malnutrition through review date”;
• Interventions were listed as: “Diet ordered by the physician, . . . PUREED texture, THIN LIQUIDS consistency”; and “If eats less than 50%, offer meal replacement.”

CMS Ex. 11 at 1. 

Page 10

Resident 1’s meal consumption before February 3, 2020 was documented as follows:⁷ 

• Resident 1 ate 76-100% of her meal (N/A meal replacement) in the evening on January 27. There are no inputs for the morning and mid-day shift for this day;
• There is no documentation for Resident 1’s meal consumption on January 28, or for the morning and mid-day shifts on January 29 through January 31. For the afternoon shifts on January 29 through January 31, Resident 1 was unavailable on January 29, ate 76-100% of her evening meal on January 30, and consumed 25% of the meal alternative on January 31. Every time she ate during this period, she was totally dependent on staff and needed a one-person physical assist;
• On February 1, Resident 1 ate 26-50% of her meal in the morning, 51-75% of her meal mid-day, and 76-100% of her meal alternative in the evening. There were no inputs for the amount that Resident 1 ate in the morning and mid-day on February 2, but Resident 1 was recorded as eating 76-100% of her evening meal;
• On February 3, Resident 1 ate 76-100% of her meal in the morning, 51-75% of her meal mid-day, and 76-100% of her meal in the evening;

CMS Ex. 10 at 6, 17.  

Petitioner’s staff updated Resident 1’s care plan on February 3, 2020, and the following interventions were added: 

• staff will “Monitor and report to MD as needed for any s/s of: decreased appetite, N/V, unexpected weight loss, c/o stomach pain, etc.”;
• staff will “Monitor/document/report to MD PRN for s/sx of dysphagia: Pocketing, Choking, Coughing, Drooling, Holding food in mouth. Several attempts at swallowing, Refusing to eat, Appears concerned during meals.”;
• staff will “Monitor/record/report to MD PRN s/sx of malnutrition: Emaciation (cachexia), muscle wasting, significant weight loss.”;
• staff will “provide, serve diet as ordered. Monitor intake and record q meal.”;
• the “RD to evaluate and make diet change recommendations PRN.”;
• staff will provide “Supplement.”

CMS Ex. 11 at 1-3. 

After February 3, 2020, Resident 1’s meal consumption was recorded as follows: 

Page 11

• On February 4, there were no inputs for Resident 1’s meal consumption for the morning or mid-day shifts. In the evening, Resident 1 ate 76-100% of her meal, and consumed 100% of the meal alternative;
• On February 5, Resident 1 ate 51-75% of her meal both in the morning and at mid-day. Resident 1 ate 26-50% in the evening and consumed 50% of her meal alternative;
• On February 6, there are no inputs for Resident 1’s meal consumption for the morning or mid-day. That evening, Resident 1 ate 26-50% of her meal and consumed 50% of the meal alternative;
• On February 7, Resident 1 ate 51-75% of her morning meal and consumed 75% of the meal alternative. Resident 1 refused to eat at the mid-day shift. She ate 0% of her meal alternative that evening;
• On February 8, Resident 1 ate 0-25% of her food and consumed 25% of her meal alternative in the morning. Resident 1 refused to eat at the mid-day shift. There are no inputs for Resident 1’s meal consumption for the evening shift;
• On February 9, Resident 1 refused to eat in the morning, ate 76-100% of her mid-day meal, and ate 0-25% of her meal and 25% of her meal alternative in the evening;
• On February 10, Resident 1 ate 51-75% of her morning meal and consumed 75% of the meal alternative, ate 0-25% of her meal and consumed 25% of the meal alternative mid-day, and ate 0-25% of her meal and consumed 25% of the meal alternative in the evening;
• On February 11, there are no inputs for Resident 1’s meal consumption for the morning and mid-day meals. In the evening, Resident 1 ate 0-25% of her meal and consumed 0% of meal alternative;
• On February 12, Resident 1 refused to eat in the am. She was deceased by the mid-day shift;
• During the February 1 to February 12 period, Resident 1 either needed limited assistance or was totally dependent on staff to eat. She always required the use of a one-person assist when eating, unless she refused to eat.

CMS Ex. 10 at 6. 

Resident 1’s reported weigh-ins during her stay at the facility were the following: 

• 108 Lbs (sitting) on January 27, 2020;
• 106 Lbs (Hoyer scale) on February 4, 2020;
• 101 Lbs (Hoyer scale) on February 11, 2020.

CMS Ex. 10 at 7, 18; CMS Ex. 9 at 9 (staff entered the following note in Resident 1’s weights and vital summary sheet on February 11, 2020:  “-5.0% change [comparison weight 1/27/2020, 108.0 lbs, -6.5%. -7.0 lbs”). 

Page 12

The surveyor testified that she did not know Resident 1’s weight pre-admission to the facility but that she reviewed hospital records and based her observations on the weight taken by the facility on January 27.  She also testified that she did not ask Resident 1’s son about her weight pre-admission, or whether she had lost weight within “the last few months or within the last year or so.”  Tr. 36.  The surveyor agreed that a normal albumin level of 4.1 is an indication that Resident 1 was not malnourished.  Tr. 41-42.  According to the surveyor, “multiple” nurses informed her that Resident 1 was not eating (Tr. 48), and there are multiple instances in the surveyor’s notes that suggest the nurses told her Resident 1 was not eating.  CMS Ex. 3. 

Resident 1 died at the facility on February 12, 2020.  The death certificate listed “cardiopulmonary failure [;] sepsis[;] Parkinson’s Dementia” as the causes of death.  CMS Ex. 6 at 1. 

Deficiency Concerning Nutrition and Hydration

3. 3. Petitioner conceded that it did not have sufficient evidence to show that it was in substantial compliance with 42 C.F.R. § 483.25(g) (Assisted nutrition and hydration). As a result, Petitioner withdrew its appeal of that deficiency.  Therefore, Petitioner failed to properly comply with the requirement in the regulations to ensure Resident 1 maintained an acceptable nutritional status. 

The Social Security Act (Act) states: 

A skilled nursing facility must 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 included this requirement as part of the prefatory text in the “Quality of care” regulation.  42 C.F.R. § 483.25.  In order to implement this statutory provision, the Secretary established specific requirements concerning nutrition and hydration: 

Based on a resident’s comprehensive assessment, the facility must ensure that a resident—

(1) Maintains acceptable parameters of nutritional status, such as usual body weight or desirable body weight range and electrolyte balance, unless the resident’s clinical condition demonstrates that this is not possible or resident preferences indicate otherwise;

Page 13

(2) Is offered sufficient fluid intake to maintain proper hydration and health; and

(3) Is offered a therapeutic diet when there is a nutritional problem and the health care provider orders a therapeutic diet.

42 C.F.R. § 483.25(g)(1)-(3) (emphasis added). 

The SOD alleged the following facts in support of the finding that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(g)(1)-(3) based on a failure to properly ensure Resident 1’s nutritional status: 

Resident 1, who required assistance from the staff with eating and drinking fluids, was not provided enough . . . food as per the resident's plan of care and the facility's policy and procedure.

This deficient practice of the staff not ensuring Resident 1 received adequate food . . . resulted in Resident 1 losing 6.75 percent (%) of body weight in 15 days . . . .

* * * * *

A review of Resident 1’s care plan titled, “Nutritional Problem or Potential Nutritional

Problem related to Diabetes (high blood sugar levels),” created on 1/26/2020 indicated the resident will not experience weight loss/gain of three (3) pounds and will not experience signs and symptoms of malnutrition. The staffs’ interventions included to offer meal replacement if the resident ate less than 50 percent (%), monitor and report to physician as needed for any signs and symptoms of decreased appetite, unexpected weight loss, monitor laboratory results, and monitor intake.

* * * * *

A review of Resident 1’s Activities of Daily Living (ADL) report indicated Resident 1 consumed the following amount of food percentage (%): On 1/26/2020 Resident 1 consumed 0%[.] On 1/27/2020 consumed 76-100% of dinner[.] On 1/28/2020 through 1/29/2020 consumed 0%[.] On 1/30/2020

Page 14

consumed 76-100% of dinner[.] On 1/31/2020 consumed 25% of alternative dinner[.] On 2/2/2020 consumed 76-100% of dinner[.] On 2/4/2020 consumed 76-100% of dinner[.] On 2/6/2020 consumed 26-50% of dinner[.] On 2/7/2020 consumed 51-75% of breakfast[.] On 2/8/2020 consumed 0-25% of breakfast[.] On 2/11/2020 consumed 0% consumed[.]

A review of Resident 1’s Weight and Vitals Summary sheets, dated 1/27/2020 through 2/11/2020 indicated Resident 1 lost seven (7) pounds, 6.5 percent (%) of weight in 15 days as follow[s]:

1/27/2020, 108 pounds, a day after admission
2/4/2020, 106 pounds
2/11/2020, 101 pounds

* * * * *

A review of Resident 1’s Licensed Progress Note, dated 1/26/2020 through 2/12/2020 there was no documentation the physician and/or NP were notified Resident 1 was not eating, refusing to drink and losing weight.

CMS Ex. 1 at 25- 29. 

Petitioner conceded the deficiency at 42 C.F.R. § 483.25(g)(1)-(3).  P. Prehearing Br. at 3; see also P. Br. at 2, 33.  In post-hearing briefing, Petitioner asserted that it conceded the deficiency at 42 C.F.R. § 483.25(g)(1)-(3) because Petitioner’s staff did not always document the percentage of food Resident 1 ate at meals.  P. Br. at 12 (“Given the burden of proof required for this appeal, the lack of documentation is the reason [Petitioner] is not appealing the nutrition deficiency.”). 

Therefore, because Petitioner withdrew its appeal of the deficiency at 42 C.F.R. § 483.25(g)(1)-(3), I accept the facts alleged in the SOD as true related to Resident 1’s nutritional deficits.  As a result, Petitioner failed to be in substantial compliance with 42 C.F.R. § 483.25(g)(1)-(3). 

Deficiency Concerning Failure to Consult with Physician after
a Significant Change in Physical Condition

4. 4. Petitioner had policies and procedures concerning nutrition and reporting changes in a resident’s condition to the physician. These policies were to ensure

Page 15

4. that residents maintain acceptable parameters of nutritional status and that staff will communicate significant changes in a resident’s condition to the physician. 

Petitioner had a policy for ensuring residents maintained an acceptable nutritional status, by considering various factors such as body weight and protein levels, unless the resident’s clinical condition demonstrated that this is not possible.  Among other things, Petitioner was responsible for assessing the resident’s nutritional status and factors that put the resident at risk of not maintaining acceptable parameters of nutritional status.  Petitioner had to define and implement interventions for maintaining or improving nutritional status consistent with resident needs, goals, and recognized standards of practice, or explaining in the medical record why the facility could not or should not do so.  Petitioner was responsible for monitoring and evaluating the resident’s response or lack of response to the interventions, revising or discontinuing the approaches as appropriate, or justifying its continuation of current approaches.  CMS Ex. 4 at 17-19. 

The nutrition policy defined weight loss as “[s]ignificant weight loss (5%/5Lbs in one (1) month), 7.5% in three (3) months, or 10% in six (6) months), as well as unplanned weight loss that occurs over time. . . .”  Each resident is to be weighed upon admission and have weekly weights for four weeks and monthly weights thereafter.  The residents will undergo a dietary evaluation, which can include weighing and weight changes.  Any resident weight that varies from the previous reporting period by 5%/5lbs in 30 days, 7.5% in 90 days and 10% in 180 days will be evaluated by the interdisciplinary team (IDT) to determine the cause of weight loss/gain and intervention required.  Family members or responsible parties and the attending physician will be notified by the Unit Manager.  CMS Ex. 4 at 17, 19.  

Petitioner also had a change of condition reporting policy.  CMS Ex. 4 at 7.  The policy states that “all changes in resident condition will be communicated to the physician.”  CMS Ex. 4 at 7.  An acute medical change is defined as “[a]ny sudden or serious change in a resident’s condition manifested by a marked change in physical or mental behavior.”  CMS Ex. 4 at 7.  A routine medical change is “a minor change in physical and mental behavior, abnormal laboratory and x-ray results that are not life threatening.”  CMS Ex. 4 at 8.  The licensed nurse responsible for a resident will continue an assessment each shift for at least 72 hours or until stabilized.  CMS Ex. 4 at 8.  For life-threatening changes, licensed nurses will inform the primary physician of a residents’ status “as soon as possible before, during or after the change of condition.”  CMS Ex. 4 at 7.  For acute medical changes, the licensed nurse in charge will notify the physician via phone call but not by text.  CMS Ex. 4 at 7.  For routine medical changes, “the nurse in charge is responsible for notification of physician prior to end of assigned shift when a significant change in condition is noted.”  CMS Ex. 4 at 8.  If the physician is unable to be reached, “all calls to physicians or exchanges requesting callbacks will be documented on the nursing progress notes.”  CMS Ex. 4 at 8.  If the physician has not returned the call by the

Page 16

end of the shift, the on-coming nurse would be notified and the Medical Director, if still unable to contact the physician, should be notified.  CMS Ex. 4 at 8. 

5. 5. Resident 1’s decreased appetite and weight loss from February 3, 2020 through February 12, 2020, constituted a significant change in Resident 1’s physical condition requiring an immediate consultation with Resident 1’s physician. In particular, from February 3, 2020 to February 10, 2020, Petitioner’s staff did not consult with Resident 1’s physician concerning her precipitously declining appetite, despite a requirement to do so in Resident 1’s care plan.  Further, Petitioner’s staff did not immediately consult with Resident 1’s physician when they learned, on February 11, 2020, that Resident 1 had lost five pounds within the last week and was now 101 pounds.  Under both Resident 1’s care plan and the facility’s nutrition policy, which defined a five-pound weight loss in a month as significant weight loss, contact with Resident 1’s physician was required.  Therefore, Petitioner was not in substantial compliance with 42 C.F.R. § 483.10(g)(14)(i)(B) because it did not immediately consult with Resident 1’s physician following two, separate, although related, significant changes in Resident 1’s condition.  

The SOD alleged that Petitioner was noncompliant with 42 C.F.R. § 483.10(g)(14)(i)-(iv),(15) (Tag F580) because Petitioner’s staff failed to notify Resident 1’s physician that Resident 1 experienced significant changes concerning her fluid intake, meal consumption, blood sugar levels, lab results, weight loss and urine output throughout her 17-day stay at the facility.⁸  CMS Ex. 1 at 2-13. 

The relevant regulatory requirement for this deficiency is as follows: 

A facility must immediately inform the resident; consult with the resident’s physician; and notify, consistent with his or her authority, the resident representative(s), when there is-

* * * * *

Page 17

A significant change in the resident’s physical, mental, or psychosocial status (that is, a deterioration in health, mental or psychosocial status in either life-threatening conditions or clinical complications). 

42 C.F.R. § 483.10(g)(14)(i)(B) (emphasis added).⁹ 

This regulation requires that a facility “immediately” consult the resident’s physician when there is a significant change in condition, which means “as soon as the change . . . is detected, without any intervening interval of time.”  Senior Rehab. and Skilled Nursing Ctr., DAB No. 2300 at 6 (2010) (citing Magnolia Estates Skilled Care, DAB No. 2228 at 6 (2009); The Laurels at Forest Glenn, DAB No. 2182 at 8-9 (2008) (notification requirement also applies to non-emergency clinical complications)).  The physician notification requirement “is not a mere formality,” because it ensures a resident’s right to timely receive the treating physician’s input as to the care required under the circumstances.  Britthaven of Goldsboro, DAB No. 1960 at 11 (2005).  Further, the physician notification requirement “is not contingent on how the physician might respond, but on the existence of facts requiring notification.”  NHC Healthcare Athens, DAB No. 2258 at 6-7 (2009).  A “significant change” includes “situations when there is a chance that physician intervention is needed.” Claiborne-Hughes Health Ctr. v. Sebelius, 609 F.3d 839, 843 (6th Cir. 2010) (citing The Laurels at Forest Glenn, DAB No. 2182 at 12-13 (2008)).  It is only those injuries that potentially require physician intervention that must be reported to the physician.  Park Manor, DAB No. 1926 (2004) (citing 56 Fed. Reg. 48826, 48833 (Sept. 26, 1991)).  Determining whether a change is significant with respect to a particular resident involves nursing judgment.  Columbus Nursing and Rehab Ctr., DAB No. 2505 at 10 (2013) (citing Universal Healthcare/King, DAB No. 2215 at 17 (2008), aff’d, Universal Healthcare/King v. Sebelius, No. 09-1093 (4^th Cir 2009)). 

CMS argued that Resident 1’s care plan stated she was to maintain a “+/- 3 lb of 108 [lbs]” and that staff should report to the physician any signs or symptoms of decreased appetite or unexpected weight loss.  CMS Br. at 16.  CMS asserted that Resident 1’s consumption of meals decreased between February 4 and February 11.  CMS argued that Petitioner provided no documentation showing that the decrease in appetite was reported to the physician.  CMS asserted that I would have to speculate as to whether the physician ordered shakes on February 10 due to Resident 1’s decreased appetite, her weight loss, or based on the request of the family.  CMS Reply at 7.  

Page 18

Resident 1’s transfer report from PIH showed that prior to Resident 1’s admission to Petitioner’s facility, Resident 1 was experiencing weakness and a decreased appetite for three days, but she did not have nausea or vomiting.  CMS Ex. 7 at 2.  According to Resident 1’s Nutrition/hydration risk evaluation form:  “Food intake- Good- Eats 50% to 75% of Most Meals,” effective date 1/26/2020.  CMS Ex. 7 at 5. 

Resident 1 transferred from PIH to the facility on January 26, 2020 “for skilled PT/OT and IV antibiotic secondary to [a] recent hospitalization with dx of Encephalopathy, sepsis secondary to UTI.”  CMS Ex. 7 at 7.    On January 29, 2020, an NP determined that Resident 1 needed a blood transfusion for “d/t low Hemoglobin levels.”  P. Ex. 4 at 3.  According to the NP who examined Resident 1 on February 6, Resident 1 had at least 19 current medications and a problem list of a multitude of ailments going back to July 29, 2019.  Sepsis and hyperthyroidism were listed with a date of “1/31/2020” and metabolic encephalopathy, recurrent urinary tract infection, Parkinson’s disease, muscle weakness, history of fall, osteoporosis, and anemia were listed with a date of “2/2/2020.”  CMS Ex. 7 at 7.  The record, therefore, shows that Resident 1 had a complex medical situation before and while at Petitioner’s facility. 

In regard to nutrition and weight, although Resident 1 had a few instances of a decreased appetite prior to February 3, Petitioner was consuming, on average, 75-100% of her meals (although the amount of Resident 1’s food consumption was not always recorded).  CMS Ex. 10 at 17.  After February 3, Resident 1’s meal consumption lowered to around 51-75%.  Starting on February 5, Resident 1’s consumption lowered to 26-50%.  She was only eating 50% of her meal alternative.  Beginning on February 7, Resident 1 refused to eat mid-day.  She then refused to eat again on February 8 during the mid-day feeding time, and on February 9 during the morning feeding time.  On February 10, Resident 1 ate 51-75% of her meal and consumed 75% of the meal alternative in the morning, ate 0-25% of her meal and consumed 25% of the meal alternative mid-day, and ate 0-25% of her meal and consumed 25% of the meal alternative in the evening.  There were no inputs for Resident 1’s meal consumption for the morning and mid-day shifts.  In the evening, Resident 1 ate 0-25% of her meal and consumed 0% of it.  In the morning on February 12, the day Resident 1 was later found unresponsive, she also refused to eat.  CMS Ex. 10 at 6.  Therefore, the record also shows that Resident 1 experienced a significant change when she had an obvious decrease in her meal consumption beginning on February 3.  

I consider Petitioner’s care plan for Resident 1 to be important evidence showing that Petitioner’s staff did not timely act to consult with Resident 1’s physician when Resident 1’s meal consumption and weight were precipitously declining.  After arriving at the facility, Petitioner immediately identified that Resident 1 was at risk for weight changes and nutritional problems.  Petitioner expressed that a care plan goal to avoid this risk was Resident 1 maintaining a weight of no less than 105 pounds with no signs or symptoms of malnutrition.  CMS Ex. 11 at 1.  By February 3, 2020, Petitioner added more interventions to Resident 1’s care plan concerning nutrition.  The care plan changed to

Page 19

expressly obligate staff to monitor and report to Resident 1’s physician, as needed, any signs and symptoms of decreased appetite or weight loss.  CMS Ex. 11 at 1-2.  Therefore, the facility planned for Resident 1’s physician to be alerted as soon as nutritional issues arose with Resident 1. 

Petitioner asserted that Resident 1’s care plan was updated multiple times in order to address her nutritional needs and the physician’s orders for supplements and meal replacements “were frequently offered and accepted.”  P. Br. at 11.  Petitioner does not disagree that Resident 1 experienced a decrease in her meal consumption during her stay at the facility.  In fact, Petitioner acknowledged that “Resident 1 . . . experienced an overall weight loss of seven pounds, the day after the new interventions had been implemented for nutritional support.”  P. Br. at 8.  Concerning the five-pound weight loss discovered on February 11, Petitioner asserted there was no need for immediate notification to the physician, “since weight loss interventions had been implemented the day before.”  P. Br. at 8.  Petitioner then asserted that it would have notified the physician but Resident 1’s sudden death the next day prevented it.  P. Br. at 14. 

Petitioner is correct that the RD updated Resident 1’s care plan with new interventions on February 3.  The physician’s order for house shakes for Resident 1 was entered on February 10, seven days after the RD added the new interventions in Resident 1’s care plan on February 3.  A Progress Note entered by a nurse stated that, on February 10 at 13:24, she “[r]eceived RD recommendation to add SF HPN 4oz TID, SF Prostat 30ml, MIV/MIN, Vic C, ZnSo4 220mg.  Dr Chang made aware, resident and responsible party made aware.  Order noted and carried out.”  P. Ex. 4 at 11. 

Based on the record, I do not know whether the RD dialogued with the physician concerning Resident 1’s declining food intake and decreasing weight.  The record shows that the February 10 physician order for house shakes was given after the RD entered interventions, and in response to Resident 1’s decreased appetite and overall weight loss.  However, consultation requires more than just informing or notifying the physician; it requires “a dialogue with and a responsive directive” from the physician.  River City Care Ctr., DAB No. 2627 at 8 (2015).  While the record is not clear as to facility staff’s communication with Resident 1’s physician, there appears to be a connection between the RD’s recommendation and the physician being “made aware” of the recommendation.  P. Ex. 4 at 11.  However, Petitioner did not provide testimony from the RD or Resident 1’s physician to clarify if they consulted with each other.  Despite this, the Progress Note does show communication of the RD’s recommendation to Resident 1’s physician and, on February 10, 2020, the physician acting on that recommendation to order the shakes. 

Although Resident 1’s physician did not testify in this proceeding, Petitioner provided a declaration from George Fields, D.O., the facility’s Medical Director.  P. Ex. 5.  Dr. Fields stated that it was not surprising Resident 1 died due to her multiple underlying co-morbidities.  P. Ex. 5 ¶ 7.  Dr. Fields stated that the resident’s physician or the NP were

Page 20

informed of changes of condition for Resident 1 on multiple occasions, including on February 11 for “[w]eight loss of 7 lbs (6.5% x. 15 days).”  P. Ex. 5 ¶ 8.  Dr. Fields asserted that “communication between the physician and/or NP and the staff occurred on multiple occasions:  2/10/20 (Registered dietician regarding weight loss . . . [and] [t]elephone orders were given in response to Facility notifications on . . . 2/11.”  P. Ex 5 ¶ 9.  Dr. Fields further opined that Resident 1 had been fluid resuscitated in the acute hospital prior to transfer, and that it likely caused weight gain.  A 106-pound weight “would have been an expected fluid weight loss.”  P. Ex. 5 ¶ 10.  Dr. Fields also stated that Resident 1’s albumin level was 4.1 on February 6, 2020, and that this was an indicator that she was not malnourished.  In reference to Resident 1’s weight loss, Dr. Fields stated that her 101-pound weight was “unavoidable, given her multiple underlying co-morbidities and ongoing infections.”  P. Ex. 5 ¶ 10. 

Petitioner provided no documentary evidence to support Dr. Fields’ assertions that Resident 1’s physician was notified about Resident 1’s seven-pound weight loss or that telephone orders were given in response to “facility notifications on . . . 2/11” in response to Resident 1’s new 101-pound weight.  P. Ex. 5 ¶ 9.  Moreover, Dr. Fields did not specifically address the significant five-pound weight loss that Resident 1 experienced from February 4 to February 11 and was discovered by staff on February 11.  P. Ex. 5.  Treatments that are not documented are not usually accepted as having been performed.  River City Care Ctr., DAB No. 2627 at 9 (“. . . similarly here, we are not willing to assume that an order that was not documented at the facility was nevertheless communicated to and complied with by the nursing staff, absent credible evidence of such communication.”) (and cases cited therein). 

While the record certainly shows that Resident 1 was suffering from multiple co-morbidities and experienced a decreased appetite for three days prior to her admission at Petitioner’s facility, the fact that she experienced that condition previously does not make the recurrence of the condition insignificant.  Claiborne-Hughes Health Ctr. v. Sebelius, 609F. 3d 839, 845 (2010) (citing NHC Healthcare Athens, DAB No. 2258 at 6 (2009) (noting that the existence of a condition does not preclude a regulation’s requirement to contact the physician upon the condition’s recurrence)).  Many residents seek admission into SNFs in the specific hopes of preventing the recurrence of past life-threatening health episodes.  Claiborne-Hughes Health Ctr., 609 F.3d at 845.  As such, I do not give weight to Dr. Fields’ explanation of events surrounding Resident 1’s weight loss/reduced food intake and the facility’s alleged response to it.  Dr. Fields provided his opinion, but it is not based on facts he observed.  Further, I cannot accept Dr. Fields’ statements without documentary support.  Regarding his explanation that Resident 1 was bound to lose weight based on fluid weight loss, this does not affect facility staff’s need to consult with Resident 1’s physician based on the weight loss.  When Dr. Fields opined that weight loss down to 101 pounds was unavoidable, it simply places Petitioner in a worse position because staff should have been prepared to consult with Resident 1’s physician.  After all, the care plan envisioned such a consultation for loss of appetite or decreased

Page 21

weight of only a few pounds (i.e., according to the care plan, the loss of more than three pounds might result in Resident 1 missing a nutritional goal). 

Petitioner’s argument that it implemented a weight-loss intervention the day before on February 10 and thus was already addressing Resident 1’s significant changes does not account for the lack of notice to the physician once staff discovered Resident 1’s significant weight loss on February 11.  According to Petitioner’s policy, because there was a five-pound loss since the previously reported weight on February 4, another evaluation should have been conducted by the IDT and the physician should have been called.  CMS Ex. 4 at 19.  This is consistent with the care plan’s goal for Resident 1 not to lose more than three pounds (i.e., weigh less than 104 pounds) and that the physician was to be notified when there was unexpected weight loss.  CMS Ex. 11 at 1.  That a weight-loss intervention was implemented on February 10 does not prevent staff from also consulting with the physician on February 11 once staff learned that Resident 1 weighed 101 pounds.  Life Care Center of Tullahoma, DAB No. 2304 at 19 (2010) (quoting the ALJ’s finding that “nothing . . . prevent[s] [the nursing] staff from initiating emergency measures….and simultaneously consulting with the treating physician.”).  The 101-pound weight on February 11 presented a new and separate clinical complication requiring immediate consultation with Resident 1’s physician.  

Accordingly, I conclude that a seven-day delay, from February 3 to February 10, is not immediate consultation with the physician concerning Resident 1’s decreased appetite prior to February 11.  I also conclude that Petitioner’s staff did not immediately consult with Resident 1’s physician about the discovery of Resident 1’s 101-pound weight on February 11.  Therefore, I conclude that Petitioner did not meet its burden to show that it was in substantial compliance with section 483.10(g)(14)(i)(B). 

6. 6. Petitioner provided immediate notice to the physician when Resident 1 experienced significant changes to Resident 1’s blood sugar levels, lab results, and fluid intake levels. Further, there is insufficient evidence that Resident 1’s urine output constituted a significant change in condition.  Therefore, I conclude that the alleged failure to consult with Resident 1’s physician concerning those matters do not support a conclusion that Petitioner was noncompliant with 42 C.F.R. § 483.10(g)(14)(i)(B). 

As mentioned above, the SOD alleged that Petitioner was noncompliant with 42 C.F.R. § 483.10(g)(14)(i)-(iv), (15) because Petitioner’s staff failed to notify Resident 1’s physician that Resident 1 experienced significant changes concerning her fluid intake, meal consumption, blood sugar levels, lab results, weight loss, and urine output throughout her 17-day stay at the facility.  CMS Ex. 1 at 2-13.  Other than the failure to consult with Resident 1’s physician concerning the reduced meal consumption and weight loss, as discussed above, Petitioner otherwise immediately informed Resident 1’s physician of other significant changes in Resident 1’s physical condition. 

Page 22

                        Elevated Blood Sugar Levels on February 3

CMS argued “numerous lab results were elevated, which was indicative of hydration. . . .  She also had a high white blood cell count, which is indicative of infection.”  CMS Br. at 17.  Petitioner did not argue that the changes to Resident 1’s blood sugar levels and the basis of her abnormal lab results and fluid intake were not significant, but instead it asserted it provided notification to the NP and, as a result, the NP and/or the physician gave further orders for necessary interventions, medications or follow-up.  The evidence of record supports Petitioner. 

Petitioner submitted a declaration from LVN Taylor that states, on February 3, 2020, “NP was at Downey.  I verbally notified her that Resident 1 had a blood sugar reading of 475.  NP was at Downey and gave me a verbal order for sliding scale insulin.”  P. Ex. 18.  CMS did not cross-examine LVN Taylor, and the surveyor did not interview her.  Tr. 45.  Petitioner also submitted a February 3 order showing that sliding scale insulin was ordered by the NP on that date at 15:22.  The order was confirmed by LVN Taylor on February 3.  P. Ex. 17 at 4.  Further, Resident 1’s physician stated in his interview with the surveyor that in “reviewing his notes, [the] NP . . . was the one managing the resident, [so] she would know more information . . . [the NP] saw [the] resident on 2/2, 2/3, and 2/6/20 . . . [w]as not aware resident was having change in condition.”  CMS Ex. 3 at 17.  

The surveyor interviewed the NP and her statements to the surveyor contradict the declaration of LVN Taylor.  The NP stated that she had “[n]o records of the facility calling on 2/3/2020 or 2/8/2020 for blood sugars [over] 400 found, no phone calls received.”  CMS Ex. 3 at 25.  However, the surveyor admitted during cross-examination that the sliding scale insulin order on January 26 was not correct.  She verified and acknowledged that there was a sliding scale order on February 3.  Tr. 50-52. 

                        Decreased Blood Sugar on February 8

On February 8, 2020, LVN Taylor filled out a “Change in Condition” (COC) evaluation form for Resident 1.  Resident 1 was hypoglycemic because her blood sugar was 49 mg/dl.  CMS Ex. 12 at 1.  The form indicated the following:  “Reported by assigned pm charge nurse [Resident 1’s] blood sugar reading is 49 mg/dl and resident appear to be sleepy and lethargic . . . usually more energetic and moaning/groaning, resident has DX, DM &O insulin AC/HS per sliding scale.”  CMS Ex. 12 at 1, 7.  On February 8, the change was reported to the physician at 16:20 and the physician directed staff to “give standing order of Glucagon and cont. to monitor, no new orders to add.”  Resident 1’s family was notified on February 8, 2020 at 16:24.  CMS Ex. 12 at 7; see also CMS Ex. 8 at 3 (hypoglycemic protocol). 

Page 23

Significantly, on cross-examination, the surveyor admitted that staff notified the physician when Resident 1’s blood sugar was low on February 8.  Tr. 55-56  (“wouldn’t that indicate to you that the physician was notified of the blood sugar of 49?  Yes.”).  When asked why the surveyor’s declaration did not mention that the facility notified the physician of the low blood sugar on February 8, the surveyor could not recall why.  When asked, “wouldn’t you agree that the physician was notified according to the medical records,” the surveyor testified:  “Based on the COC, it seems like it.”  Tr. 56-57.  Consistent with this, the surveyor’s notes indicate an interview with case manager in which the case manager stated:  “its documented on [the] COC they (staff) forgot to document on the [medication administration record [MAR]].”  CMS Ex. 3 at 8. 

                        Abnormal Lab Results on February 6

There is a licensed nurse progress note on February 7, 2020, stating that lab results were provided to the NP after they were collected and documented on February 6.  CMS Ex. 8 at 2, 11-13; CMS Ex. 15 at 2-4; P. Ex. 4 at 10 (“relayed Lab results to NP estee oncall for Dr. Chang and received new orders for . . . increased WBC, IV fluids NX 60cc hr x1 L until finish . . . orders noted and carried out, on coming nurse made aware or COC and new medication . . . will continue to monitor.”).  The surveyor testified that the surveyor “did not see the note” despite asking for the entire chart.  Tr. 58-59 (“Does that indicate to you that these lab results were related to the nurse practitioner?  I don’t recall seeing these notes. . . . well, now seeing that note now, does that indicate to you that the nurse practitioner was informed of the abnormal lab results?  At the moment, if they would have provided me that note, yeah, it would have showed that it was reported . . . .”)(emphasis added).  

The record shows a phone order on February 7, 2020, for Metronidazole for “elevated WBCs for ten days.”  CMS Ex. 8 at 11.  However, a Progress Note dated February 10 indicated that staff “received [a] call back from . . . [the] NP regarding recent lab results during the shift and with new orders noted and carried out.”  P. Ex. 4 at 1.  The surveyor stated she reviewed the orders but found there was “no indication of the reason for the orders.”  Tr. 59.  After reading the order while being cross-examined, the surveyor agreed it was an order specific to the abnormal lab results.  Tr. 60.  There are also handwritten notes on the February 6 lab results page submitted as CMS Exhibit 15 at 2.  During cross-examination, the surveyor admitted she reviewed the notes and indicated lab results were given to the physician and orders were a result of the labs.  Tr. 61. 

Based on the evidence described above, there is no question that Resident 1’s elevated blood sugar on February 3, her abnormal lab results on February 6, and decreased blood sugar on February 8 are all significant changes experienced by Resident 1.  Based on LVN Taylor’s testimony about the verbal February 3 order for sliding insulin, the documentary evidence presented by both parties, and the surveyor’s concessions made during cross-examination, the record shows that Petitioner gave immediate notification to

Page 24

the physician about the significant changes to Resident 1’s blood sugar levels and abnormal lab results. 

                        Fluid Intake

CMS argued that Resident 1’s fluid intake was insufficient because:  1) even though she was diagnosed as severely dehydrated while at PIH, Resident 1 was able to consume fluid intake of 1000-2000 ml “per day at discharge.”  CMS Br. at 16 (citing to CMS Ex. 1 and CMS Ex. 7 at 5).  CMS argued that, while at the facility, Resident 1 could only consume, at most, 600 ml per day, and 120 ml or less on five different days.  CMS asserted the record shows that the physician was not notified.  CMS Br. at 16.  In response, Petitioner argued that it was not under an obligation, by the physician or as listed in the care plan, to monitor Resident 1’s fluid intake or output.  P. Br. at 9.  Petitioner stated that some staff were still documenting the fluid intake and refusals, despite not being required to do so.  Petitioner asserted the surveyor identified two documented instances where Resident 1 refused fluids, and although she based her conclusions on her interview with the CNA caring for Resident 1, the interview notes do not reflect that the CNA mentioned anything about Resident 1 refusing liquids.  P. Br. at 9. 

The record contains documents evidencing orders by the NP or physician for additional fluids.  Specifically, a Progress Note was entered by LVN De Leon that stated:  “. . . received new orders for . . . IV fluids NS 60 cc hr x 1 L until finish.”  P. Ex. 4 at 10.  The surveyor testified that she considers IV fluids to be “fluid intake.”  Tr. 31.  The surveyor also testified she documented refusals to intake fluid on February 7 and on February 11.  Tr. 27.  The surveyor further stated during cross-examination that she based her assessment that Resident 1 was refusing fluids on her interviews “with the CNA that took care of the resident.”  Tr. 27-28.  When asked about blank entries, the surveyor stated nursing standards and the CNA suggested that “if you didn’t document it, it means it was either done or it didn’t happen, so when I did ask . . . the DON what happened, they didn’t know what happened.”  Tr. 28.  The surveyor conceded that Resident 1 “received IV antibiotics for, let’s see, from 1/26 to 2/5, and that would have been 100ccs each day that should have been added to the fluid intake.”  Tr. 33. 

The surveyor also conceded that a “40 ml (40ccs), of a normal saline IV flush after each antibiotic, provid[ed] an additional 40 ml of fluid.”  Tr. 33.  The surveyor did not include the February 10 order for shakes as fluid intake because she was “counting whatever the CNAs were document[ing] on the fluid intake . . . because the nurses are the ones that can do the count at the end of the date.”  Tr. 33-34.  The surveyor “honestly [did not] remember or recall reviewing the MAR sheet for the Pro-Stat.”  Tr. 33-34.  In response to counsel’s questions about whether Pro-Stat provided a significant amount of fluids, the surveyor stated: “It would have if the resident actually drank the Pro-Stat.”  Tr. 34.  The surveyor continued to testify that the nurses give the residents Pro-stat as food and leave

Page 25

it at the resident’s bedside for them to drink.  The surveyor testified that she did not consider shakes as fluid intake during the investigation.  Tr. 35. 

In addition, the surveyor conceded on cross-examination that the February 7 physician order for sodium chloride solution “provided another 1000 ccs on to the fluid intake for the resident.”  Tr. 31-33. 

The surveyor ultimately agreed that Resident 1 had been receiving fluids, mostly through IV treatments and when taking medications, as evidenced in Resident 1’s MAR.  P. Ex. 4.  Based on Petitioner’s exhibits and the surveyor’s concessions to the fluids that were missed during the survey, the fluid intake that was documented in Resident 1’s MAR, and the fluids that were consumed by Resident 1 when taking medication, I conclude that the circumstances surrounding Resident 1’s fluid intake do not support the deficiency. 

                        Urinary Output

CMS argued that “the facility failed to check on Resident 1’s urinary output during her stay even though she had urinary tract infection and sepsis.”  CMS Br. at 17.  CMS continued that “[t]here were no input and output sheets,” and relied on the NP’s interview with the surveyor to conclude that “Resident 1 had a foley catheter and the staff should have monitored her urine output for sediment and color and report to the physician.”  CMS Br. at 17 (citing CMS Ex. 1 at 12, CMS Ex. 3 at 39-40).  In response, Petitioner argued that its staff were not under orders to measure fluid intake and output for Resident 1 and stated that Petitioner’s policies only require fluid intake and output to be recorded “when needed.”  P. Br. at 9 (citing CMS Ex. 4 at 1-2).  Petitioner also argued that Resident 1’s care plan did not state staff were supposed to monitor fluid intake and output.  P. Br. at 9 (citing CMS Ex. 11 at 3-4). 

While I acknowledge the fact that Resident 1’s urine output may not have been properly monitored considering Resident 1’s diagnoses for a UTI, sepsis, and urine retention, I do not find that CMS has met its prima facie case for noncompliance under this regulation.  There must be some evidence of an actual significant change in the resident’s condition in order to show a deficiency under 42 C.F.R. § 483.10(b)(11)(i)(B).  Cedar View Good Samaritan, DAB No. 1897 at 21 (2003).  The record in this case is insufficient to ascertain whether there was a significant change to Resident 1’s urine output that required immediate physician notification under 483.10(g)(14)(i).¹⁰ 

Page 26

Deficiency Concerning CPR

7. 7. Petitioner’s CPR policy incorporates the American Heart Association (AHA) guidelines for CPR and Emergency Cardiovascular care.Petitioner’s CPR policy requires that every resident will receive timely CPR when needed unless there is an advance directive or a “Do Not Resuscitate” (DNR) order. 

Petitioner, through its policy on “Cardiopulmonary Resuscitation,” requires that facility staff will “provide basic life support (BLS), including CPR, to any resident requiring such care prior to the arrival of emergency medical personnel in the absence of advance directives or a “Do Not Resuscitate (DNR) order.”  CMS Ex. 4 at 5.  This policy was last revised in August 2010 and states that CPR is instituted in cases of recognized cardiac and/or pulmonary arrest until medical emergency personnel are available to take over the resuscitation efforts.  Petitioner defined CPR as “any medical intervention used to restore circulatory and/or respiratory function that has ceased,” and defined a DNR Order as referring to “a medical order issued by a physician or other authorized non-physician practitioner that directs healthcare providers not to administer CPR in the event of cardiac arrest or respiratory arrest.”  CMS Ex. 4 at 5.  The CPR “Procedures” indicate the first thing to do, after a staff member determines that the resident has no pulse or breathing, is call a “Code Blue,” call 911, properly position the resident, and “[s]tart chest compressions.”  CMS Ex. 4 at 5. 

Petitioner’s CPR procedures reference AHA guidelines.  CMS Ex. 4.  The AHA guidelines provide a similar procedure for CPR as stated in Petitioner’s CPR procedures.  CMS Ex. 5 at 1-2.  According to the AHA, “[i]mmediate CPR can double or triple chances of survival after cardiac arrest.”  CMS Ex. 5 at 3.  

When someone is not responsive, the AHA guidelines state the rescuer should first yell for help or tell someone to call 911.  CMS Ex. 5 at 1.  Time is of the essence.  The rescuer is to then check breathing and, if the person is not breathing, administer CPR.  The rescuer should give “hard and fast” compressions, pushing down at least two inches at a rate of 100 to 120 pushes a minute in the center of the chest.  CPR is to continue until

Page 27

the person starts to breathe or move, or until someone with more advanced training takes over (e.g., emergency medical service (EMS) personnel).  CMS Ex. 5 at 2. 

The AHA guidelines also state that the “5 links” in the adult out-of-hospital chain of survival start with the “[r]ecognition of cardiac arrest and activation of the emergency response system (calling 9-1-1 in the US).”  The next links are performing early CPR with an emphasis on chest compressions and rapid defibrillation.  The last two links in the chain of survival are “[b]asic and advanced emergency medical services,” and “[a]dvanced life support and post-cardiac arrest care.”  The AHA guidelines state that “[a] strong Chain of Survival can improve chances of survival and recovery for victims of cardiac arrest.”  CMS Ex. 5 at 4.  The AHA guidelines list two commonly known versions of CPR that are specific to “health care providers and those trained” and for “the general public or bystanders who witness an adult suddenly collapse.”  CMS Ex. 5 at 5. 

8. 8. On February 12, 2020, at 9:50 a.m., LVN 1 initiated CPR on Resident 1 within a minute of CNA 1 determining that Resident 1 had no pulse or respirations. In accordance with Petitioner’s CPR policy, LVN 1 confirmed Resident 1 was pulseless, called a “Code Blue,” confirmed Resident 1’s code status as Full Code (i.e., had no DNR order), and grabbed the crash cart, before initiating CPR. 

The SOD alleged that facility staff failed to provide CPR “immediately upon confirming there was no pulse [for Resident 1], as per the facility’s policy to commence CPR and according to the [AHA] and the nursing standards of practice to provide immediate CPR and delegate assignments to unlicensed staff.”  CMS Ex. 1 at 14.  While the SOD acknowledged that a February 12, 2020 Progress Note concerning staff actions upon observing that Resident 1 was no longer breathing indicated that CPR was performed within a minute, i.e., at 9:50 a.m. (CMS Ex. 1 at 18-19), the SOD relied on surveyor conducted interviews of staff (primarily CNA 1 and LVN 1) to challenge the immediacy of the CPR performed.  Those staff interviews allegedly included staff admissions as to CNA 1’s inability to perform CPR and LVN 1’s failure to react properly and assign tasks to the CNA.  CMS Ex. 1 at 21- 22. 

As explained below, I give most weight to the nearly contemporaneous Progress Note from February 12, 2020, that indicated staff commenced CPR within a minute of finding Resident 1 unresponsive.  I do so because CNA 1 and LVN 1 testified consistently in this proceeding with that Progress Note and, taken as a whole, the Progress Note and witness testimony of the individuals present at the incident are the most dispositive evidence as to events at issue.  Further, CNA 1 and LVN 1 denied statements attributed to them in the surveyor’s notes.  CMS neither objected to their testimony nor cross-examined them. 

The Progress Note in question was written at 5:23 p.m. on February 12, 2020, by the nurse in charge of the unit.  CMS Ex. 14 at 2.  The note indicated that, at 8:00 a.m. on February 12, Resident 1 was “in bed awake, skin warm and dry to touch.”  A CNA

Page 28

reported that she tried to feed Resident 1 at that time, but Resident 1 refused to eat.  Resident 1 did drink “a few sips of water.”  CMS Ex. 14 at 1. 

At 8:45 a.m., the Progress Note stated a restorative nursing assistant provided oral care and range of motion exercises, noting Resident was “awake but quiet.”  CMS Ex. 14 at 1. 

At 9:30 a.m., the Progress Note stated that Resident 1 was in bed with the head of the bed elevated, and Resident 1 was observed with her mouth open and breathing well.  It also noted that Resident 1’s skin was warm and dry to the touch.  CMS Ex. 14 at 2. 

At 9:50 a.m., the Progress Note stated that a CNA noticed Resident 1’s chest was not rising, and she reported the situation to the treatment nurse (LVN 1) who was close in proximity and alerted the nurse in charge.  The note stated that “Resident [1] is full code/full treatment, CPR was initiated by [treatment] nurse and another staff while code blue was called to alert other staffs and nursing team.”  CMS Ex. 14 at 2. 

The Progress Note indicated that, at 9:55 a.m., paramedics were called by the nurse in charge while CPR was being provided to Resident 1.  CMS Ex. 14 at 2.  At 10:05 a.m., “Paramedics arrived in facility at this time while CPR in progress, paramedics took over CPR, no pulse/B/P obtain.”  At 10:10 a.m. the Progress Note indicated that the paramedics pronounced Resident 1 dead.  CMS Ex. 14 at 2. 

In addition to the Progress Note, the only other documentation as to the events related to Resident 1’s death is a record from the Downey Fire Department.  That document stated that an ambulance was dispatched at 10:01 a.m. and arrived at the facility at 10:07 a.m.  EMS personnel got to Resident 1 at 10:08 a.m. and the time of death was noted at 10:10 a.m.  It was noted that “911 call chief complaint cardiac arrest last scene [sic] well 930 and unresponsive, FD on scene found patient supine in bed in a long-term care facility patient does have rigor to her chin and lividity to her back.pt was left with the staff on scene.”  CMS Ex. 6 at 2.  Other than reporting, consistent with the Progress Note, that Resident 1 was last observed well at 9:30 a.m., this document does not provide information as to when CPR was initiated. 

Petitioner provided the written testimony of CNA 1, the nursing assistant assigned to Resident 1, and LVN 1, the treatment nurse who provided CPR to Resident 1.  CMS provided the written testimony of the surveyor and her survey notes. 

According to CNA 1, she discovered Resident 1 unresponsive on February 12, 2020.  CNA 1 was familiar with Resident 1 and knew that Resident 1’s “baseline is to make different incoherent noises.”  P. Ex. 6 ¶ 3.  CNA 1 stated that, after breakfast on February 12, 2020, CNA 1 was assisting other residents who shared a room with Resident 1.  CNA 1 heard a snoring sound from Resident 1, but a few minutes later, CNA 1 no longer heard Resident 1 make her usual “incoherent noises,” which prompted CNA 1 to check on

Page 29

Resident 1.  P. Ex. 6 ¶ 3.  CNA 1 “checked her radial and carotid pulses and felt nothing.  Her skin was warm to touch and her right arm was limp.”  P. Ex. 6 ¶ 3.  CNA 1 testified that she immediately left the room to call for help and found LVN 1 in the hallway, who rushed into Resident 1’s room.  LVN 1 ran back out of Resident 1’s room, asked CNA 1 to stay back with Resident 1, and LVN 1 was “back in the room in seconds and began CPR.”  P. Ex. 6 ¶¶ 4-5.  Also “other staff ran into the room to help.”  P. Ex. 6 at ¶ 4. 

LVN 1 testified that, on February 12, 2020, CNA 1 ran out of Resident 1’s room and stated to LVN 1, who was in the hallway, that Resident 1 was unresponsive.  LVN 1 stated that she entered Resident 1’s room and determined Resident 1 did not have a pulse or respiration.  P. Ex. 7 ¶ 5.  LVN 1 further stated that she left CNA 1 with Resident 1 while she went to the nurse’s station to check Resident 1’s code status, call the Code Blue, and obtain the crash cart.  P. Ex. 7 ¶¶ 5-6; see also P. Ex. 8 ¶ 7 (“The Crash cart and resident charts are both located at the Nurses Station so the Licensed Nurses can promptly identify the Code status of the residents.”).  LVN 1 testified that the crash cart consisted of emergency equipment needed to perform CPR, including a back board, ambu bag, and oxygen.  LVN 1 stated that the nurse’s station was approximately 17 feet away from Resident 1’s room.  P. Ex. 7 ¶ 5-6; see Tr. 91; P. Ex. 9 (photograph taken from inside of Resident 1’s room showing the nursing station).  LVN 1 further stated:  

At the Nurses Station, I called a Code Blue, quickly verified the Code Status of Resident 1 as a Full Code, and grabbed the Crash cart.  The time period from when I left Resident 1 and returned to Resident 1 was approximately 21 seconds.  I immediately began chest compressions and another CPR certified staff member provided rescue breaths.  I gave 30 chest compressions and the other employee gave two rescue breaths using an Ambu bag.  We repeated this cycle until Paramedics arrived. 

P. Ex. 7 ¶ 7. LVN 1 indicated that “the CNA cannot check the Code Status of the residents and CPR is not initiated until the Code Status is quickly confirmed. P. Ex. 7 ¶ 10; see also P. Ex. 8 at 2 ¶ 8 (facility only permits licensed nurses to check code status).  LVN 1 stated that she followed CPR procedures for Health Care Providers “which was to check for responsiveness, check for breathing and pulse, activate a Code Blue, retrieve the emergency equipment needed for effective CPR and begin CPR.”  P. Ex. 7 ¶ 11.

The surveyor’s written testimony in this case indicated agreement with Petitioner’s witnesses on certain facts, including that LVN 1 responded to CNA 1’s call for help, confirmed that Resident 1 did not have a pulse, and left the room to call a Code Blue and obtain a crash cart.  CMS Ex. 17 ¶ 6.  The surveyor also stated that LVN 1

Page 30

and numerous facility staff indicated CPR should be performed immediately when a person who does not have a pulse or other vital signs and concluded that Resident 1 did not receive CPR services immediately.  CMS Ex. 17 ¶ 6.  The surveyor indicated that she conducted interviews with staff on August 10, 2020, which showed that staff “did not fully understand appropriate CPR procedures.”  CMS Ex. 17 ¶ 7. 

The surveyor based the deficiency, in part, on alleged statements that CNA 1 and LVN 1 made during interviews, which are inconsistent with the written testimony of those witnesses.  CMS Ex. 17 ¶ 6.  The surveyor interviewed CNA 1 on July 27, 2020, and recorded that CNA 1 did not initiate CPR on Resident 1 because CNA 1 did not know how to do it.  The surveyor said that CNA 1 stated that CNA 1 did not feel comfortable doing it even though she has “a CPR” [card].  CMS Ex. 17 ¶ 6; see also P. Ex. 6 ¶ 5 (CNA 1 testifying that she has a CPR card).  The surveyor recorded that CNA 1 said that she had never been in-serviced in CPR, was new, did not how to do CPR, and ran out of Resident 1’s room and called for help.  CMS Ex. 3 at 10-11; CMS Ex. 17 ¶ 6.

The surveyor interviewed LVN 1 on August 6, 2020, and recorded that LVN 1 said CNA 1 reported Resident 1 was unresponsive with no pulse.  LVN 1 allegedly told the surveyor that, when LVN 1 learned Resident 1 had no pulse, LVN 1 “left the room to grab the crash cart and call a code blue [leaving] CNA in the room with the resident.”  LVN 1 also allegedly said that CNA 1 did not start CPR.  The surveyor indicated that LVN 1 said that LVN 1 could have asked CNA 1 to call the Code Blue while LVN 1 initiated CPR but that she did not.  CMS Ex. 3 at 15-16; CMS Ex. 17 ¶ 6.

On cross-examination, the surveyor’s testimony provided some support for Petitioner’s case.  Significantly, the surveyor agreed that, if a resident has a DNR order in the resident’s chart, health care providers should not initiate CPR, and it would be a violation of a resident’s rights for facility staff to initiate CPR if the resident had a DNR order in the resident’s chart.  Tr. 73.  The surveyor even agreed that, when LVN 1 found the resident without a pulse, LVN 1 needed to first check the status of the resident’s code status.  Tr. 76, 80.  When asked if there was a period of time given to health care facilities to check a resident’s code status, the surveyor testified she counted from the time Resident 1 was identified as pulseless by CNA 1 to the time LVN 1 initiated CPR.  Tr. 80-81.  The surveyor testified that Petitioner’s policy is to place a DNR paper either outside the chart or on the side of the chart.  She testified that some of the charts were located at the nursing station while others were not.  The surveyor confirmed that Resident 1’s code status was “on a paper on the chart” and included in an NP’s assessment.  Tr. 75.  The surveyor also testified to being unaware of Petitioner’s policy that only licensed nurses check resident code status.  Tr. 94.  When asked whether there was an appropriate amount of time to check a resident’s code status, and specifically whether “less than a minute” was an appropriate time, the surveyor testified that she was unable to provide an exact time of what is or is not appropriate because the AHA guidelines state that CPR is started as soon as someone is identified as pulseless.  Tr. 84-

Page 31

85.  The surveyor testified that she never established how long it took LVN 1 to commence CPR.  Tr. 92. 

The surveyor questioned LVN 1’s decision to check Resident 1’s code status instead of having CNA 1 retrieve Resident 1’s chart “or check for that code status.”  Tr. 81.  The surveyor later testified that it is within the scope of practice for CNAs to bring a chart to the nurse and for the nurse to read a resident’s code status.  Tr. 94.  The surveyor summarized her concerns as follows:  “CNA [1] did not know how to do CPR and did not immediately initiate CPR, and LVN [1] . . . didn’t initiate CPR immediately.”  Tr. 64. 

Based on evidence of record, with weight especially given to the February 12, 2020 Progress Note and the testimony of CNA 1 and LVN 1, I find that it took approximately one minute for facility staff to initiate CPR on Resident 1 after CNA 1 determined that Resident 1 was no longer breathing and no longer had a pulse.  I find that the time spent prior to initiating CPR (i.e., approximately a minute) was used properly as preparation for CPR, including checking Resident 1’s code status. 

9. 9. Petitioner was in substantial compliance with 42 C.F.R. § 483.24(a)(3) because Petitioner’s staff immediately provided CPR to Resident 1 after quickly completing necessary preparation, including a check of Resident 1’s code status to ensure that Resident 1’s medical chart did not include a DNR.

The Act requires SNFs to “care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.”  42 U.S.C. § 1395i-3(b)(1)(A).  The regulation implementing this statute explains what “quality of life” means. 

Quality of life is a fundamental principle that applies to all care and services provided to facility residents.  Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, consistent with the resident's comprehensive assessment and plan of care.  

42 C.F.R. § 483.24.  The regulation provides specific requirements that SNFs must meet in order to provide care that maintains or enhances resident quality of life.  One such requirement is to provide CPR to residents. 

Personnel provide basic life support, including CPR, to a resident requiring such emergency care prior to the arrival of emergency medical personnel and subject to related physician orders and the resident’s advance directives. 

Page 32

42 C.F.R. § 483.24(a)(3). 

As indicated above, the primary basis for the section 483.24(a)(3) deficiency is that “the facility’s nursing staff failed to provide [CPR] . . . immediately upon confirming there was no pulse (heart rate) for one of three sampled residents (Resident 1), as per the facility’s policy to commence CPR and according to the American Heart Association (AHA) and the nursing standards of practice to provide immediate CPR and delegate assignments to unlicensed staff.”  CMS Ex. 1 at 14. 

In evaluating CMS’s allegation against Petitioner, Petitioner, like all SNFs, is bound by its policy that incorporates the AHA’s CPR guidelines.  North Las Vegas Care Ctr., DAB No. 2946 at 6 (2019) (“Petitioner’s failure to provide CPR to a full-code resident in cardiac arrest violated both an established resident care policy (the DNR policy) and an accepted professional standard of quality (reflected in the AHA’s CPR guidelines).”); Green Valley Healthcare and Rehab. Ctr., DAB No. 2947 at 7 (2019) (“Collectively these policies called upon Petitioner’s nursing staff to administer CPR, consistent with [AHA] practice guidelines, to any full-code resident - that is, to any resident without a valid DNR order . . . in cardiac arrest.”). 

In its brief, CMS cited to previous administrative decisions that found a deficiency when a resident did not have a DNR order and CPR was never started.  CMS Br. at 7-10; see North Las Vegas Care Ctr., DAB No. 2946 at 6 (citing Avalon Place Kirbyville, DAB No. 2569 at 13 (2014) (“Because Petitioner failed to provide a resident with CPR in accordance with an established resident care policy and professional standards of quality, it did not meet the basic quality-of-care obligation in section 483.25.”)); Green Valley Healthcare and Rehab. Ctr., DAB No. 2947 at 8 (“We therefore conclude, as Petitioner’s own internal investigation evidently did, that Petitioner’s resident care policies and the applicable standard of care called on LVN A to administer CPR to Resident 19 (a full-code resident) when she discovered him without vital signs on June 12, 2015.  Because LVN A failed to provide CPR in those circumstances, we also conclude that Petitioner did not meet the basic quality-of-care obligation in section 483.25.”); Woodland Oaks Healthcare Facility, DAB No. 2355 at 16 (“Honoring the advance directive meant the provision of CPR to Resident 8 when she experienced cardiac or respiratory arrest.  Furthermore, accepted professional standards of quality obligated the nursing staff to carry out the advance directive for Resident 8 unless she exhibited clinical signs of irreversible death.”), 17-18 (2010) (“The ALJ held that CMS’s immediate jeopardy determination was not clearly erroneous, stating that ‘[f]ailing to provide CPR to a full-code resident who has stopped breathing all but guarantees that resident's death and, thus, poses immediate jeopardy to resident health and safety.’”  The DAB affirmed the ALJ.).  However, these decisions are not directly applicable because, in this case, Petitioner’s staff did initiate CPR. 

Page 33

CMS also argued there is a legal basis to find Petitioner in noncompliance under section 483.24(a)(3) because neither CNA 1 nor LVN 1 began CPR on Resident 1 immediately, and this caused a significant delay in providing CPR to Resident 1.  CMS Br. at 8.  CMS asserted that a delay in starting CPR of only 29 seconds was not credible.  CMS Br. at 8.  CMS argued that CNA 1 made several statements that she did not feel comfortable providing CPR and, while CNA 1 later denied making those statements to the surveyor, the surveyor’s contemporaneous notes should be accepted as true.  CMS Br. at 8-9; see also CMS Ex. 3 at 9-11; P. Ex. 6.  CMS further argued that neither CNA 1 nor LVN 1 told the surveyor in their interviews that the delay was less than 30 seconds or that it was very short.  CMS asserted that “CNA 1 did not provide CPR, neither at the time LVN 1 left to get the crash cart and call the code blue nor after the LVN 1 got back.”  CMS Br. at 8-9 (citing CMS Ex. 3 at 10).  To CMS, the key issue is the immediacy of the CPR. 

There is no question that CNA 1 did not provide CPR on February 12, 2020.  There is also no doubt that LVN 1 did not commence CPR the moment that she confirmed that Resident 1 had no pulse and respirations.  However, I am not persuaded by CMS’s arguments that CPR was not immediately provided.  Therefore, the facts in this case are not sufficient to uphold a deficiency under 42 C.F.R. § 483.24(a)(3). 

As discussed above, the Progress Note is the most significant document that shows the timing of events by staff on February 12, 2020.  The Progress Note shows that most of the staff’s actions were taken at or about 9:50 a.m., which is also when Resident 1 was found unresponsive.  Only the 911 call is delineated as later, at 9:55 a.m.  CMS Ex. 14 at 2.  The Progress Note and facility witness testimony agree that staff reacted immediately and swiftly to prepare for and initiate CPR.  CNA 1 provided written direct testimony that she checked on Resident 1 at 9:50 a.m. and discovered Resident 1 was unresponsive.  CNA 1 “rushed” out of Resident 1’s room and reported her findings to LVN 1, the treatment nurse who happened to be in the hall near Resident 1’s room.  CNA 1 stated LVN 1 “rushed” into the room, then “quickly rushed” out of the room, and then was back in the room in “seconds.”  CNA 1 estimated that it took five seconds to get LVN 1 into Resident 1’s room initially.  P. Ex. 6 ¶¶ 4-5. 

LVN 1 provided written direct testimony that, upon entering Resident 1’s room and finding Resident 1 had no pulse or respirations, she “immediately ran to the West Nursing Station to check the Code status, call a Code [Blue], and obtain the crash cart with emergency equipment needed to perform CPR, which consisted of the back board, ambu bag and oxygen.”  P. Ex. 7 ¶ 5.  LVN 1 also testified the West Nurses Station “is directly across from Room 15 and approximately 17 feet from Room 15.”  P. Ex. 7 ¶ 6.  LVN 1 stated that she could see Resident 1’s crash cart from the room.  P. Ex. 7 ¶ 6; see also P. Ex. 9 (photograph of Room 15 and crash cart).  LVN 1 testified that she took three seconds to confirm Resident 1 had no pulse or respirations and took less than 30 seconds to initiate CPR.  P. Ex. 7 ¶¶ 5, 7.  A nurse employed by Petitioner provided written testimony that she timed a reenactment by LVN 1 of the sequence of events

Page 34

surrounding the CPR process on February 12, 2020.  P. Ex. 8 ¶ 5.  Using a cellphone, Nurse Ye recorded LVN 1’s reenactment at 21 to 29 seconds.  P. Ex. 10. 

CMS wants me to disregard the testimony of CNA 1 and LVN 1 because the surveyor’s notes from interviews pre-date the written direct testimony for the witnesses.  However, CMS neither objected to nor sought to cross-examine the witnesses.  This is significant because both LVN 1 and CNA 1 disputed the surveyor’s notes as to their responses during the interview.  For instance, CNA 1 stated that, after she felt no pulse for Resident 1, she “immediately rushed out of the room to call for help and [LVN 1] was in the hallway.  I informed her Resident 1 had no pulse.  [LVN 1] rushed into the room of Resident 1.  [LVN 1] quickly rushed out of the room and asked me to stay with [Resident 1], which I did. . . . [LVN 1] was back in the room in seconds and began CPR.  Other staff ran into the room to help.”  P. Ex. 6 ¶ 4.  CNA 1 also expressly denied telling the surveyor that she did not know how to do CPR or that she felt uncomfortable doing CPR because she was new and not in-serviced on CPR.  P. Ex. 6 ¶ 5.  Further, in contradiction to the surveyor, LVN 1 stated that she did not leave Resident 1’s room for the sole purpose of calling a Code Blue but rather to also check Resident 1’s code status and get the crash cart.  P. Ex. 7 ¶ 10.  LVN 1 stated that she needed to do this because a CNA could not check the code status.  P. Ex. 7 ¶¶ 6, 10.  As unchallenged testimony, I give it more weight than the surveyor’s notes and recollection.  Further, the witnesses’ testimony as to the timing of CPR is consistent with the February 12, 2020 Progress Note, a document that is nearly contemporaneous with the event.  This documentation is important because the surveyor admitted that her investigation did not establish the amount of time it took LVN 1 to start CPR.  Tr. 92; see also CMS Ex. 3 at 15-16 (no mention of timeframe). 

LVN 1 testified that a resident’s code status (i.e., whether CPR should be provided to a resident) must be quickly confirmed before CPR can be initiated.  On cross-examination, the surveyor agreed with this.  Tr. 76, 80.  Even the surveyor could not articulate an appropriate amount of time to check a resident’s code status and could not even conclude whether “less than a minute” was an appropriate time.  She testified that she was unable to do so because “the AHA guidelines state that CPR is started as soon as someone is identified as pulseless.”  Tr. 84-85.  While CMS argued that neither CNA 1 nor LVN 1 told the surveyor that it took LVN 1 under one minute to initiate CPR or that it took “a very short time” (CMS Br. at 8), the surveyor also did not necessarily ask the necessary questions to elicit such information.  Tr. 76, 78, 81, 92. 

During cross-examination, the surveyor suggested that LVN 1 should have waited for CNA 1 to retrieve the chart while LVN 1 stayed with Resident 1, instead of LVN 1 going to the nursing station to verify Resident 1’s code status herself.  Tr. 81-82.  However, neither the surveyor nor CMS provide any plausible reason to assume taking such action would have resulted in LVN 1 initiating CPR faster. 

Page 35

The surveyor agreed that Resident 1’s code status had to be checked before commencing CPR.  Tr. 73-74.  In fact, this is clearly an obligation both in Petitioner’s policy as well as in the regulation cited as the deficiency in this case.  CMS Ex. 4 at 5 (CPR is only provided “in the absence of advance directives or a ‘Do Not Resuscitate (DNR)’ order.”); 42 C.F.R. § 483.24(a)(3) (SNFs must provide CPR “subject to related physician orders and the resident’s advance directives.”).  Therefore, whether Petitioner immediately initiated CPR on Resident 1 must include time to confirm the code status.  

The absolute necessity of checking the code status can be seen in the Act’s requirements concerning advance directives.   The Act requires SNFs to “protect and promote” the rights of each resident, including the right to be fully informed in advance about care and treatment, including any changes that may affect the resident’s well-being, and to participate in planning and in changing care and treatment.  42 U.S.C. § 1395i-3(c)(1)(A)(i).  The Act also requires SNFs to “document in a prominent part of the individual’s current medical record whether or not the individual has executed an advance directive.”  42 U.S.C. §§ 1395i-3(c)(1)(E), 1395cc(f)(1)(B).  The Act defines “advance directive” as a “written instruction, such as a living will or durable power of attorney for health care, recognized under State law . . . and relating to the provision of such care when the individual is incapacitated.  42 U.S.C. § 1395cc(f)(3); see also 42 C.F.R. § 489.100. 

To effectuate the requirements of the Act, the Secretary promulgated the resident rights regulation that states “the resident has the right to be informed of, and participate in, his or her treatment, including the right to request, refuse, and/or discontinue treatment, to participate in or refuse to participate in experimental research, and to formulate an advance directive.”  42 C.F.R. § 483.10(c)(6).  Further, that regulation requires SNFs to comply with the requirements specified in 42 C.F.R. part 489, subpart I (Advance Directives), which states, in relevant part, that SNFs must “document in a prominent part of the individual’s current medical record . . . whether or not the individual has executed an advance directive.  42 C.F.R. § 489.102(a)(2). 

When the surveyor was asked whether it is correct that staff should not initiate CPR if there was a DNR order in a resident’s chart, the surveyor testified “yeah, do not—yeah, if that’s what the family and resident stated, yes, you do not initiate CPR.”  The surveyor also agreed it would be a violation of the resident’s rights to start CPR on a DNR resident.  Tr. 73-74; see also Cascade-Abilene Health Servs., DAB CR4826 at 3-4 (2017) (upholding deficiency because CPR initiated on resident with DNR).  The surveyor did not assert that Petitioner did anything wrong having the code status posted on Resident 1’s chart.  It therefore follows that neither CNA 1 nor LVN 1 could initiate CPR on Resident 1 until the code status was checked.  LVN 1 acted properly when quickly seeking the code status, calling a Code Blue, and bringing the crash cart rather than assign those tasks to an individual with a lower level of medical certification.  In any

Page 36

event, LVN 1 would be able to do nothing while waiting for CNA 1 to return.  There is simply no evidence of a deficiency. 

Finally, I address some matters that I find do not impact the analysis of the alleged deficiency of 42 C.F.R. § 483.24(a)(3).  The surveyor testified that CNA 1 and other facility staff were not knowledgeable in CPR.  CMS Ex. 17 ¶¶ 6-7; CMS Ex. 3 at 27.  However, CMS did not assert that LVN 1, the person who provided CPR to Resident 1, was insufficiently trained in CPR.  Given that CNA 1 did not provide CPR, neither her potential lack of knowledge nor that of others support the deficiency in this case. 

Further, I do not consider the question as to when Petitioner called EMS a matter directly implicated in this deficiency.  The SOD did not mention that Petitioner failed to call 911 timely as part of its allegations of noncompliance.  CMS’s post-hearing brief mentions it, but only because this supposedly “shows that the delay [in commencing CPR] was five to eleven minutes, not 29 seconds.”  CMS Br. at 9, 10; see also CMS Reply at 3.  While the February 12, 2020 Progress Note indicated that EMS was not called until 9:55 a.m., it specifically indicated CPR was started at 9:50 a.m.  CMS Ex. 14 at 2.  Because CMS did not expressly assert in the SOD or prehearing briefing that Petitioner’s 911 call was a basis for the deficiency, I consider the timing of the call irrelevant to the alleged deficiency. 

CMP Amount and Duration

10. 10. CMS imposed two per-day CMPs in this case. The first was a $6,940 per-day CMP based on three days (August 10, 2020 through August 12, 2020) of noncompliance at the immediate jeopardy level. The second was a $225 per-day CMP for 47 days (August 13, 2020 through September 28, 2020) for non-compliance that was not at the immediate jeopardy level.  Petitioner conceded that it was not in substantial compliance with 42 C.F.R. § 483.25(g)(1)-(3), a deficiency that caused actual harm to a resident, and did not dispute the 50-day duration of the combined CMPs imposed.  I also upheld the finding of noncompliance with 42 C.F.R. § 483.10(g)(14), a deficiency that caused actual harm.  However, as also discussed above, I did not sustain the SOD’s charge of non-compliance with 42 C.F.R. § 483.24(a)(3), the only deficiency that alleged an immediate jeopardy level of severity.  As a result, there is no longer a deficiency at the immediate jeopardy level in this case.  Because Petitioner did not dispute the duration of the CMPs imposed, I uphold the 50-day duration.  Further, because Petitioner did not dispute the $225 CMP amount by expressly arguing that the statutory or regulatory factors for setting CMP amounts support a lower amount, and because a $225 penalty is nearly at the bottom of the CMP amount authorized for non-immediate jeopardy substantial noncompliance, I conclude that a $225 per-day CMP is permissible in this case.  Finally, because I uphold the legitimacy of the $225 per-day CMP for the period

Page 37

10. of non-immediate jeopardy deficiencies (i.e., August 13, 2020 through September 28, 2020), I conclude that a $225 per-day CMP is appropriate for the period that was originally alleged to involve an immediate jeopardy deficiency.  As a result, the CMP imposed on Petitioner will be for a period of 50 days at $225 per day for a total CMP of $11,250. 

When determining whether a CMP amount is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort, or safety.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i-3(h)(2)(B)(ii)(I).  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f).  The factors listed in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  See 42 U.S.C. §§ 1320a-7a(d)(1), (3), 1395i-3(h)(2)(B)(ii)(I). 

The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2); 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2) and (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008).  However, unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002). 

As an initial matter, I uphold the 50-day duration of the CMPs imposed in this case.  CMS imposed two CMPs on Petitioner.  The first was a $6,940 per-day CMP for three days (August 10, 2020, through August 12, 2020) and the second was a $225 per-day CMP for 47 days (August 13, 2020, through September 28, 2020).  Therefore, CMS found that Petitioner was not in substantial compliance with Medicare requirements for a total of 50 days.  DAB E-File Dkt. C-21-765, Document # 1a at 2. 

The state agency determined, based on a revisit survey, that Petitioner returned to substantial compliance on September 29, 2023.  CMS Ex. 16.  Petitioner, which conceded one of the deficiencies, also did not dispute the duration of the CMPs imposed.  See P. Br. at 33.  Therefore, the duration of per-day CMPs in this case will be 50 days. 

Regarding the amount of the per-day CMP imposed, I conclude that it will be $225 per-day for the entire 50-day period of noncompliance.  I must reduce the penalty amount for the first three days of the period because I did not sustain the only deficiency that was at

Page 38

the immediate jeopardy level of severity.¹¹  Because CMS imposed a $225 per-day CMP for the period of non-immediate jeopardy noncompliance, and that amount has not been contested, I conclude it is an appropriate amount for the first three days of noncompliance that is now no longer at the immediate jeopardy level. 

Petitioner made no arguments as to reasonableness of the $225 per-day CMP for the period of non-immediate jeopardy level deficiencies.  Petitioner only argued against the $6,940 per-day CMP but failed to dispute any specific regulatory factor concerning the calculation of that amount.  CMS asserted that its penalty amounts are reasonable noting that both the immediate jeopardy level amount and the non-immediate jeopardy level amount were close to the minimum amounts for each range of penalties.  CMS Br. at 17-18.  Although Petitioner did not discuss any of the factors for setting the penalty amount, because I must lower the penalty amount for the first three days of the period of noncompliance, I briefly discuss some of the factors below. 

Facility’s History of Non-Compliance:  CMS argued that the facility’s history of noncompliance shows numerous past deficiencies, including failure to notify a physician of lab results and to properly train staff regarding emergency responses.  CMS Br. at 18 (citing CMS Ex. 18 at 3).  Petitioner has multiple deficiencies cited in past surveys.  Specifically, from July 2016 through April 2019, CMS found Petitioner to have had 39 “D” level, 36 “E” level, and 3 “F” level deficiencies.  CMS Ex. 18.  Although these deficiencies did not cause actual harm to residents, the quantity is significant.  Further, two of the previous deficiencies involve the same deficiencies upheld in this case.  One of these previous deficiencies involved 42 C.F.R. § 483.10(g)(14) (failing to notify of significant changes) in 2018 and another one involving a 2017 failure to maintain nutrition and hydration (previously designated as Tag F-325 but comparable to Tag F-692 in this case).  CMS Ex. 18 at 2-3.  I find Petitioner’s history of noncompliance supports the $225 per-day CMP imposed in this case. 

Scope and Severity of Deficiencies and Relationship Between Deficiencies:  CMS argued that the seriousness of the offense supports the CMP.  As indicated above, there is sufficient evidence that CMS has met its burden to show that staff failed to immediately

Page 39

notify the physician concerning Resident 1’s overall weight-loss and decreased meal consumption but failed to immediately consult with Resident 1’s physician about her weight loss.  Petitioner also conceded the deficiency at section 483.25(g)(1)-(3).  Both of these deficiencies are at the severity level of actual harm to a resident.  Therefore, there is strong support for the $225 per-day CMP amount based on this factor. 

Culpability:  I conclude that Petitioner is very culpable in this case.  Petitioner did not consult immediately with Resident 1’s physician even though Resident 1’s food intake significantly diminished in early February 2020.  Further, facility staff did not consult with Resident 1’s physician on February 11, 2020, after Resident 1 was weighed, which showed Resident 1’s weight had dropped a total of seven pounds since admission to 101 pounds.  I find that Petitioner’s culpability, by itself, justifies the CMP amount imposed. 

Financial Condition of the Facility:  Petitioner presents no evidence of its financial condition.  Therefore, this is not a factor requiring further consideration. 

CMP Amount:  As previously discussed, I found Petitioner in substantial compliance with section 483.24(a)(3).  For that reason, the imposition of the $6,940 per-day CMP for three days of noncompliance from August 10 to August 12 is inappropriate as a matter of law.  However, a per-day CMP of $225 per day for 50 days beginning August 10, 2020, and continuing through September 28, 2020, totaling $11,250, is in the lower penalty range and is permissible based on the factors considered above. 

VI. Conclusion

For the reasons set forth above, I affirm CMS’s initial determination that Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.10(g)(14)(i) and 483.25(g)(1)-(3).  I conclude that a $225 per-day CMP for 50 days beginning August 10, 2020 and continuing through September 28, 2020 for a total CMP of $11,250, is reasonable. 

---

Endnotes

¹  “It is the duty and responsibility of the Secretary to assure that requirements which govern the provision of care in skilled nursing facilities . . . are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public monies.”  42 U.S.C. § 1395i-3(f)(1). 

²  All citations to the Code of Federal Regulations are to the version in effect at the time of the survey unless otherwise indicated. 

³  Petitioner submitted an amended post-hearing brief and motion concerning its additional proposed exhibit.  I cite to the amended versions in this decision. 

⁴  Although Petitioner initially appealed all three of the deficiencies identified in the SOD, Petitioner, in its prehearing brief, withdrew its appeal related to the deficiency concerning 42 C.F.R. § 483.25(g).  P. Prehearing Br. at 3; see also P. Br. at 33.  Further, in that brief, Petitioner stated that the issues on appeal only included the two remaining deficiencies in the SOD and not 42 C.F.R. § 483.25(g).  P. Prehearing Br. at 4.  Based on this, when I issued the Notice of Hearing in this case, I informed the parties that the issues in this case included the question as to whether Petitioner was in substantial compliance with 42 C.F.R. §§ 483.10(g)(14)(i)-(v), (15) and 483.24(a)(3) and that Petitioner had withdrawn the appeal as to the 42 C.F.R. § 483.25(g) deficiency.  Notice of Hearing at 3.  Petitioner had ten days to object to the Notice of Hearing listing the issues in the case, but Petitioner filed no objection.  See Notice of Hearing at 4.  In post-hearing briefing, Petitioner “regrets having withdrawn its challenge to the deficiency to maintain proper nutritional parameters.”  P. Br at 2.  However, it is too late in this proceeding to modify the issues to be adjudicated. 

⁵  As explained below, I conclude that Petitioner was in substantial compliance with 42 C.F.R. § 483.24(a)(3).  Therefore, I do not address the second issue in this case. 

⁶  “FULL CODE” means that medical personnel should attempt to resuscitate Resident 1 in the case of respiratory or cardiac arrest. 

⁷  The documentation concerning the amount of each meal consumed uses a numerical code that appears in a key on the page where Resident 1’s meal consumption is documented.  The surveyor explained on cross-examination what the numerical values were, which she had learned from staff.  Tr. 37. 

⁸  The SOD alleged the same/similar facts in support of the deficiency at 42 C.F.R. § 483.10(g)(14)(i)-(iv), (15) concerning Petitioner’s failure to immediately consult with Resident 1’s physician about Resident 1’s reduced food intake and weight loss as alleged in support of the deficiency at 42 C.F.R. § 483.25(g)(1)-(3) concerning Resident 1’s nutrition status.  Compare CMS Ex. 1 at 5-9 with CMS Ex. 1 at 26-29.  As stated above, Petitioner conceded the deficiency at 42 C.F.R. § 483.25(g)(1)-(3) concerning a failure to maintain Resident 1’s nutrition status.  Therefore, I accept that the facts alleged in both deficiencies concerning Resident 1’s nutrition as true.  Despite this, I also fully discuss the evidence of record concerning Resident 1’s nutritional status. 

    

⁹  This regulation was revised and redesignated as 42 C.F.R. § 483.10(g)(14)(i)(B) on October 4, 2016.  81 Fed. Reg. 68,688, 68,853 (2016).  Some of the prior case decisions cited refer to the previous regulation at section 483.11(b). 

¹⁰  There is evidence that some staff were recording that Resident 1 had urinary output, but there is also significant evidence in the record that Resident 1 required the use of a catheter.  Petitioner had a policy on indwelling catheters that articulated procedures by which staff should be cleaning the resident’s catheters on a daily basis.  CMS Ex. 4 at 3.  Moreover, in response to counsel’s question during examination whether it was required, in a skilled nursing facility, “to document the intake and output if there’s not a specific physician’s order,” the surveyor responded:  “as a nurse, the resident was in fully catheter, and when you have somebody with chronic urinary retention and fully catheter, you have to monitor your in and out.”  Tr. 23-24.  There is also evidence in the record that the doctor who performed follow-up care with Resident 1 and her son on January 25, before her transfer to Petitioner’s facility, may have had concerns that Resident 1 developed symptoms of urosepsis.  CMS Ex. 7 at 5.  Even if I consider the doctor’s note, the record does not support that there were any significant changes to Resident 1’s urine output that required immediate physician notification. 

¹¹  CMS had to impose a CMP for the three-day period that it believed Petitioner had an immediate jeopardy level deficiency from the upper range of penalty amounts prescribed for per-day CMPs.  42 C.F.R. § 498.438(a)(1)(i).  The $6,940 per-day CMP was near the bottom of the upper range.  45 C.F.R. § 102.3 (2020); 85 Fed. Reg. at 2870, 2880 (the upper range for per-day CMPs was from $6,888 to $22,584).  However, because I have not sustained the deficiency that CMS identified at the immediate jeopardy level of severity, the penalty amount for the first three days of the period of noncompliance must be from the lower range of penalties.  42 C.F.R. § 498.438(a)(1)(ii).  That range is $113 to $6,774 per day.  45 C.F.R. § 102.3 (2020); 85 Fed. Reg. at 2870, 2880.