Longview Hill Nursing and Rehabilitation Center, DAB CR6373 (2023)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to impose remedies against Petitioner, Longview Hill Nursing and Rehabilitation Center, a skilled nursing facility, consisting of a per-instance civil money penalty of $20,775 and denial of payment for new admissions for each day of a period that ran from August 7, 2021, through August 24, 2021.¹

I.  Background

This case originally was assigned to another administrative law judge.  It was transferred to me in June 2023.  I held a pre-hearing conference at which I addressed objections to exhibits.  I received into evidence exhibits identified by CMS as CMS Ex. 1 – CMS Ex. 26, CMS Ex. 28 – CMS Ex. 30, and CMS Ex. 32 – CMS Ex. 34.  I also received exhibits identified by Petitioner as P. Ex. 1 – P. Ex. 8.  I sustained CMS’s objections to my receiving an additional exhibit, P. Ex. 9.

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The parties subsequently waived their right to an in-person hearing.  Each party filed a closing brief.  I decide this case based on the parties’ exhibits and their arguments.

II.  Issues, Findings of Fact and Conclusions of Law

A. Issues

CMS originally determined that Petitioner failed to comply with multiple regulations governing its participation in the Medicare program.  As a consequence of my Ruling, this case now hinges chiefly on whether Petitioner complied substantially with 42 C.F.R. § 483.25, which governs the quality of care that a skilled nursing facility must provide to its residents.  Also at issue are whether the $20,775 civil money penalty that CMS determined to impose against Petitioner is reasonable and whether the duration of the period of denial of payment for new admissions that CMS determined to impose is appropriate.²

B. Findings of Fact and Conclusions of Law

1. Noncompliance with 42 C.F.R. § 483.25

A Medicare-participating skilled nursing facility must provide its residents with treatment and care that accords, among other things, with professional standards of practice.  42 C.F.R. § 483.25.  The regulation does not specify what constitutes professional standards, but it is evident that such standards include those that are widely recognized as governing the administration of skilled nursing care and ancillary services to nursing facility residents.  They also include those standards of care that a facility adopts as its treatment policy.

CMS alleges that Petitioner failed to comply with the regulation’s requirement in providing care to a resident identified as Resident # 51.  According to CMS, Petitioner’s staff failed to take seriously the resident’s suicidal ideation and behavior, failed to respond to evidence and warnings by others that the resident had consumed a dangerous overdose of Tylenol Extra Strength (an over-the-counter medication), and failed adequately to alert the resident’s treating physician of the resident’s behavior and signs of overdose.  CMS alleges that these failures violated standards of care that Petitioner’s management acknowledges should have been followed by its staff.

The evidence strongly supports CMS’s contentions.

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Petitioner admitted Resident # 51 to its facility on February 2, 2021.  This resident had a history of mental illness.  She came to the facility with diagnoses of, among other conditions, depression, anxiety disorder, dementia with behavioral disturbance, and schizoaffective disorder.  P. Ex. 2 at 58.  Prior to her admission to Petitioner’s facility, the resident had stayed for two weeks at a mental hospital.  P. Ex. 2 at 5.  Shortly after her admission, Petitioner’s staff noted that the resident exhibited depression and expressed thoughts of self-harm.  CMS Ex. 16 at 9.

Indeed, Resident # 51 exhibited signs of depression and despondency from the inception of her admission.  On February 8, 2021, staff observed the resident to be crying and engaging in frequent verbal outbursts.  CMS Ex. 28 at 3.  The next day, the resident continued to have crying episodes.  On that date, she refused medication, food, and fluids.  Id. at 3.

Around midday on March 3, 2021, Resident # 51 refused food and medication.  She told staff that she might as well die because she hated staying at the facility.  P. Ex. 2 at 59.  She told a nursing assistant that she’d rather die than stay at the facility and that she wanted to kill herself.  CMS Ex. 13 at 31.

There is no evidence that Petitioner’s staff took any meaningful measures in response to Resident # 51’s expressed desire to kill herself.  There is no record of heightened observation, nor did the staff immediately notify the resident’s physician of the resident’s statements.

On the afternoon of March 3, the resident’s roommate came to Petitioner’s nurse’s station and reported that Resident # 51 had swallowed an entire bottle of pills.  CMS Ex. 13 at 31; CMS Ex. 28 at 3-4; P. Ex. 2 at 58-59.  Shortly after 4:30 on that afternoon, Petitioner’s staff notified the facility’s charge nurse that Resident # 51 had ingested an unknown quantity of Tylenol Extra Strength.  Id.  Staff observed the resident to have vomited twice and to be lying in her bed.  Staff discovered an empty bottle of Tylenol in the resident’s room.  The resident subsequently was found lying on the bathroom floor in her room, crying and saying that she wanted to die.  Id.

Shortly thereafter, staff discovered Resident # 51 lying on the facility’s dining room floor, having vomited again.  P. Ex. 2 at 59.  The resident told staff that she had no reason to live.  Petitioner’s staff escorted the resident back to her room, put her to bed, and left her unattended.  CMS Ex. 28 at 4.

At around 5:00 on the evening of March 3, 2021, more than four hours after the resident first expressed suicidal ideation, Petitioner’s staff advised Resident # 51’s physician that the resident had possibly consumed an unknown quantity of Tylenol.  CMS Ex. 28 at 4.  There is nothing to show that the staff informed the physician of the resident’s repeated statements that she wanted to die, nor is there evidence to show that the staff reported the

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resident’s vomiting episodes to the physician.  The physician ordered that the resident be monitored but issued no additional orders.  Id.

There is no evidence that Petitioner’s staff closely monitored Resident # 51 after consulting with the resident’s physician.  At about 7:15 on the evening of March 3, a nursing assistant discovered the resident to be lying beside the toilet in her bathroom, having fallen.  CMS Ex. 28 at 5.  The resident was cold, clammy, and lethargic.  Id.  Her blood pressure at that time was depressed, at 80/60, and she exhibited a weak pulse.  Id.  Petitioner’s staff contacted emergency services and the resident was taken to a hospital.  Id.

At the hospital, the resident was found to have low blood pressure.  Tests revealed that the resident had a blood Tylenol level that greatly exceed what is deemed to be safe.  CMS Ex. 28 at 5.  The hospital staff treated the resident for Tylenol poisoning.  Id.

Petitioner had no written policy for dealing with a resident who expressed suicidal thoughts.  However, Petitioner’s administrator averred that a resident’s ideation of self-harm must be taken seriously and that any resident who expressed such thoughts should not be left alone.  CMS Ex. 13 at 30.  The administrator stated that any resident who expressed suicidal thoughts should be kept as calm as possible and should be referred for psychiatric care.  Id.

Petitioner’s corporate nurse echoed the administrator’s assertions, stating that when a resident expressed suicidal thoughts, that resident should be placed on one-to-one observation until that resident is cleared by psychiatric services.  CMS Ex. 13 at 33.  The nurse stated also that the facility’s director of nursing should be notified if a resident expressed suicidal tendencies.  Id.  Petitioner’s medical director also acknowledged that a resident who expresses suicidal thoughts should be referred for a psychiatric consultation.  CMS Ex. 28 at 6.

Petitioner plainly failed to apply these unwritten policies in caring for Resident # 51.  The resident’s statements and behavior on March 3, the strong evidence that she had swallowed an unknown, but possibly substantial, quantity of Tylenol Extra Strength, and her obvious physical and emotional illnesses, put Petitioner’s staff on notice that the resident was suicidal and that she had possibly poisoned herself.  Petitioner’s unwritten policy mandated that the resident be put on one-to-one observation, that she be referred for psychiatric care, and that she remain on one-to-one observation until cleared by psychiatric services.  Furthermore, staff should have informed the resident’s physician of the resident’s vomiting episodes.

Staff implemented none of these measures.  Resident # 51 was left unobserved for substantial periods on March 3, 2021.  Staff failed to notify Petitioner’s director of nursing about the resident’s condition and failed to refer the resident for psychiatric

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observation or care.  Staff failed to advise the resident’s physician about the resident’s suicidal ideation, nor did staff tell the physician about the resident’s vomiting episodes.

These violations of Petitioner’s unwritten policies amount to noncompliance with the quality of care requirements of 42 C.F.R. § 483.25.  In failing to respond to the resident’s condition on March 3, 2021, the staff placed the resident in grave danger of harm or worse.

The evidence shows that the failure of Petitioner’s staff to respond appropriately to Resident # 51’s condition was more than an isolated error, but reflected a failure by Petitioner to communicate to its staff what to do when a resident expressed a desire to commit suicide.  Members of Petitioner’s staff averred that they had never received instruction from Petitioner about what to do when a resident uttered suicidal thoughts.  CMS Ex. 13 at 31-32.  The failure by Petitioner to educate its staff appropriately is a measure of the seriousness of Petitioner’s noncompliance.

I have considered the arguments and contentions that Petitioner offers in its defense.  I find them to be without merit.

Petitioner asserts that it “did everything that it could, given the information it had available.”  Petitioner’s Closing Brief (Closing Brief) at 15.  As a basis for this assertion, it contends that, on March 3, 2021, Resident # 51 never actually expressed suicidal ideation.  Id.  That contention is incorrect.  As I have discussed, the resident expressed the desire to kill herself on March 3.  CMS Ex. 13 at 31.  She also stated that she wanted to die and that she had no reason to live.  These utterances by the resident were red warning flags to which Petitioner’s staff failed to respond.

Petitioner relies on the fact that the resident had a psychiatric evaluation two days prior to March 3 and that the resident did not express suicidal ideation on that date.  Closing Brief at 15.  That may be so, but it is irrelevant because the resident clearly expressed a desire to die on March 3, 2021.

Petitioner also contends that its staff made “multiple notes” about Resident # 51 on March 3.  Closing Brief at 15.  It is true that the staff made notes, which I have discussed above, but those notes neither evidence close observation, nor do they evidence any particular concern by staff about the resident’s expressed wish to die or the possibility that she had poisoned herself.

2. Remedies

CMS imposed three remedies against Petitioner for its noncompliance with 42 C.F.R. § 483.25 and for additional deficiencies:  (1) a $5,000 per-instance civil money penalty; (2) a $20,775 per-instance civil money penalty – which CMS specifically imposed to

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remedy Petitioner’s noncompliance with 42 C.F.R. § 483.25, and; (3) denial of payment for new admissions for a period running from August 7, 2021, through August 24, 2021.

I have granted partial summary judgment affirming the imposition of the $5,000 per-instance penalty and held that CMS is authorized to impose a denial of payment for new admissions.  Ruling.  What is left to decide is whether the $20,775 penalty is a reasonable remedy for Petitioner’s noncompliance with 42 C.F.R. § 483.25 and whether the duration of the denial of payment for new admissions is reasonable.

a. Per-instance civil money penalty

CMS may impose a per-instance civil money penalty to address any noncompliance that is substantial.  42 C.F.R. § 488.438(a)(2).  The amount of the penalty that CMS determined to impose for Petitioner’s noncompliance with 42 C.F.R. § 483.25, $20,775, is close to the top of the range of permissible penalty amounts for per-instance penalties.  45 C.F.R. Part 102.

Whether that amount is reasonable depends on evidence that relates to factors that are described at 42 C.F.R. §§ 488.438(f)(1)-(4) and 488.404 (incorporated by reference into 42 C.F.R. § 488.438(f)(3)).  These factors may include the seriousness of a facility’s noncompliance and its compliance history.  In this case, evidence relating to these two factors more than justifies the penalty amount.

First, Petitioner’s noncompliance was extremely serious and sufficient, in and of itself, to justify the penalty that CMS determined to impose.  Resident # 51 not only voiced a desire to die, but she acted on that desire, and Petitioner had evidence that she had done so.  Petitioner’s staff failed to take even minimal measures to protect the resident beyond notifying the resident’s physician that the resident had possibly overdosed on Tylenol.  The staff failed to closely observe the resident, failed to refer her for psychiatric care, failed to tell the physician that the resident had expressed a desire to die, and also failed to tell that physician that the resident had been vomiting.  The consequence of Petitioner’s neglect was that the resident collapsed, suffered from hypotension, and needed hospitalization to address poisoning.³

Moreover, Petitioner has a history of poor compliance with Medicare regulations that justifies the remedy that CMS determined to impose.  Longview Hill Nursing and Rehab.

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Ctr., DAB CR5961 (2021).  In that case I found that Petitioner had failed to provide cardiopulmonary resuscitation to a resident in violation of its own policies and accepted standards of care.  The noncompliance in that case is similar to the present case in the respect that, in both cases, Petitioner’s staff either ignored or did not comprehend basic requirements of care that should apply to any nursing home resident who is in distress.

b. Duration of denial of payment for new Medicare admissions

CMS may impose a denial of payment for new Medicare admissions to remedy any noncompliance that it determines to be substantial.  42 C.F.R. § 488.406(a)(2).  It is not necessary that there be multiple instances of noncompliance to justify imposition of this remedy.  Even a single deficiency will suffice to provide grounds for denial of payment.  42 C.F.R. § 488.417.

Duration of denial of payment for new admissions is controlled by 42 C.F.R. § 488.454.  With exceptions that do not apply here, a denial of payment will continue in effect until:

The facility has achieved substantial compliance as determined by CMS or the State based upon a revisit or after an examination of credible written evidence that it can verify without an on-site visit[.]

42 C.F.R. § 488.454(a)(1).

The regulation creates a presumption that noncompliance, once it is established, continues until CMS or a state agency can verify compliance through an on-site inspection.  CMS has no burden to establish continuing noncompliance during a period when a remedy is in effect.  N. Mont. Care Ctr., DAB No. 1930 at 8 (2004).  The burden falls entirely on a facility to establish that it has attained compliance.

Petitioner contends that it attained full compliance with participation requirements prior to August 25, 2021, the date when CMS determined that Petitioner had attained compliance.  I find Petitioner’s evidence to be unpersuasive.

For example, one of the deficiencies that justified imposition of denial of payment was Petitioner’s failure to comply with the requirements of 42 C.F.R. § 483.45(e)(1).  This regulation provides that a facility must not administer psychotropic medications to residents unless they are necessary to treat a specific condition as diagnosed and documented by clinical records.  CMS found – and it is undisputed – that Petitioner failed to comply substantially with this regulation in that it was administering a psychotropic medication, Depakote, for unspecified “behavior” and dementia.  CMS Ex. 17 at 4, 21.  Depakote is a drug that is used to treat epileptic seizures, bipolar disorder, and migraines.

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The Food and Drug Administration (FDA) has not approved administration of Depakote for other reasons, including dementia.

Petitioner contends that it cured its noncompliance with the regulation prior to August 25, 2021, attaining compliance in fact by July 30, 2021.  Closing Brief at 20.  It asserts that its plan of correction for its noncompliance included evaluation of all residents for appropriate diagnoses and that “no inappropriate diagnoses” were noted.  Id.; see P. Ex. 7 at 40; P. Ex. 8 at 139-140.  Petitioner contends that all licensed nurses received re‑education on July 29, 2021, regarding acceptable administration of Depakote.

Petitioner’s own records refute these assertions.  Its records establish that, as late as July 27, 2021, Petitioner continued to order Depakote from a pharmacy to administer it to some of its residents to address dementia, a condition for which administration of Depakote has not received FDA approval.  P. Ex. 8 at 138-139.  Other records generated by Petitioner show that it continued to administer Depakote in August of 2021 for non-FDA approved treatments, including “mood disorder due to ‘unknown physiological conditions.’” P. Ex. 2 at 143-144.

As another example, CMS cited Petitioner for failing to comply with 42 C.F.R. § 483.25(d)(2), a regulation that requires a skilled nursing facility to protect its residents against accident hazards.  To attain compliance with this requirement, Petitioner promised CMS that it would perform skin assessments of all residents in its memory unit who were smokers.  P. Ex. 7 at 35.  However, Petitioner offered no records showing that it had performed the requisite skin assessments, except in the case of one resident, Resident # 51.  See P. Ex. 8 at 15-48, 163-169.  Petitioner has not asserted that it performed skin assessments on other residents in its memory unit who were smokers.  See Closing Brief.

Petitioner asserts that it corrected other deficiencies cited by CMS prior to August 25, 2021, the end date of the denial of payment period.  It is unnecessary that I address each of these assertions.  To overcome the presumption of continuing noncompliance, Petitioner must prove that it corrected each established deficiency prior to the CMS-determined end date.  As I have explained, it failed to do so.

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Endnotes

¹ On July 17, 2023, I sustained the imposition of an additional remedy, consisting of a $5,000 per-instance civil money penalty.  Ruling Granting in Part and Denying in Part Motion for Partial Summary Judgment (Ruling).

² I ruled previously that Petitioner’s unchallenged noncompliance with regulations other than 42 C.F.R. § 483.25 authorized CMS to impose denial of payment for new admissions, leaving open the issue of duration.  Ruling at 1.

³ Petitioner challenges a finding by CMS that its noncompliance with 42 C.F.R. § 483.25 is so egregious as to put its residents at immediate jeopardy.  A finding of immediate jeopardy-level noncompliance is not a necessary predicate to the imposition of a per-instance civil money penalty, nor is it a necessary factor to be considered in deciding on the reasonableness of a per-instance penalty amount.  For these reasons I do not address whether Petitioner’s noncompliance was at the immediate jeopardy level.