Preakness Healthcare Center, DAB CR6377 (2023)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS), sustaining its determination to impose a per-instance civil money penalty of $20,780 against Petitioner, Preakness Healthcare Center, a skilled nursing facility located in New Jersey.

I. Background

This case was very recently reassigned to me.  The record includes a motion for summary judgment by CMS and Petitioner’s opposition to that motion.  I have reviewed the record and the parties’ arguments.  I find no disputed issues of material fact in this case.

Both CMS and Petitioner filed exhibits, consisting of CMS Ex. 1 – CMS Ex. 21, and P. Ex. 1 – P. Ex. 21.  I do not receive these exhibits into evidence because I grant summary judgment based on undisputed facts.  However, I cite to some of them to illustrate facts that are undisputed or to address the parties’ contentions and arguments.

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II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether undisputed facts establish that:  (1) Petitioner failed to comply substantially with a Medicare participation requirement; and (2) CMS’s remedy determination is reasonable.

B. Findings of Fact and Conclusions of Law

I base my decision entirely on undisputed facts. 

1. Noncompliance

CMS asserts that Petitioner failed to comply with 42 C.F.R. § 483.25, a regulation governing skilled nursing facilities’ participation in Medicare.  This regulation requires a skilled nursing facility to ensure that its residents receive treatment and care that meets professional standards of practice.

CMS argues that Petitioner failed to comply with the regulation because it did not provide care consistent with professional standards to a resident who is identified as R4.  CMS’s Pre-Hearing Brief and Motion for Summary Judgment (CMS brief) at 14-19.

R4 was an 84-year‑old woman who experienced cardiac arrest and expired during the early morning of July 4, 2020.  CMS Ex. 5 at 1.  The undisputed facts establish that Petitioner’s staff diligently attempted to provide the resident with cardiopulmonary resuscitation (CPR), but failed to call immediately for emergency medical services (EMS).  CMS argues, and I find, that this failure violated professional standards of practice and thus violated the requirements of 42 C.F.R. § 483.25.

The American Heart Association (AHA) publishes guidelines for addressing cardiac emergencies that are professionally recognized standards of practice.  Lakeridge Villa Healthcare Ctr., DAB No. 2396 at 8-9 (2011); Woodland Oaks Healthcare Facility, DAB No. 2355 at 6, 16 (2010); John J. Kane Reg’l Ctr. – Glen Hazel, DAB No. 2068 5-11 (2007).

AHA’s guidelines for cardiac emergencies outside of a hospital setting specify calling 911 immediately to obtain EMS assistance.  See https://www.heart.org/en/health-topics/cardiac-arrest/emergency-treatment-of-cardiac-arrest (last visited October 13, 2023); CMS Ex. 18 at 1-21; CMS Ex. 19 at 6-7.  Calling 911 is among a series of steps described by AHA as a chain of interventions designed to address an emergency.  CMS

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Ex. 18 at 1-2; CMS Ex. 19 at 7.  AHA describes calling for EMS assistance immediately as an “integral component of the EMS response.”  CMS Ex. 18 at 3.

Immediate EMS assistance is critical in providing care for cardiac emergencies because EMS personnel are trained to administer resuscitation drugs or other specific treatments that augment or supersede CPR or the use of defibrillating devices.  CMS Ex. 19 at 1-2, 6, 12-13, 43-51, 65-81.

At about 4:15 a.m. on July 4, 2020, R4 was receiving care when she began gasping for air.  A nurse rushed into the resident’s room and found her to be in distress.  The nurse promptly initiated CPR and, at some point thereafter, called “code blue,” an alert to other members of Petitioner’s staff that a resident was in distress.¹  Staff brought a crash cart and an AED (a defibrillating device) into the resident’s room.  The resident could not be resuscitated by Petitioner’s staff despite continuous and diligent efforts.  At about 5:30 a.m., paramedics arrived and pronounced R4 to be dead.  CMS Ex. 5 at 1; CMS Ex. 8 at 1.

Records generated by a private ambulance service, NJ Mobile, document that a member of Petitioner’s staff called this service at about 4:58 a.m. on July 4, 2020.  That call was disconnected or dropped.  The dispatcher at NJ Mobile attempted to call Petitioner’s facility back, but was unable to make contact until about 5:05 a.m.  Upon establishing contact, NJ Mobile immediately dispatched an ambulance to Petitioner’s facility.  NJ Mobile then contacted the New Jersey state paramedic system to have an emergency unit dispatched to Petitioner’s facility.²  The NJ Mobile unit arrived at Petitioner’s facility at about 5:28 a.m. on July 4.  EMS services arrived shortly thereafter.  CMS Ex. 1 at 13-14; CMS Ex. 7 at 1.

Petitioner’s nursing records establish a substantial lapse in time between staff’s initial response to R4’s cardiac emergency and contact with NJ Mobile, a period of about 50 minutes.  CMS Ex. 5 at 1; CMS Ex. 1 at 13-14; CMS Ex. 7 at 1.  Some members of Petitioner’s staff subsequently asserted, Petitioner’s nursing notes notwithstanding, it wasn’t until about 4:50 a.m. on July 4 that staff called a “code blue,” putting contact with NJ Mobile at about 15 to 20 minutes after the code was called, which occurred more than 15 to 20 minutes after R4 experienced cardiac arrest.  CMS Ex. 1 at 14; CMS Ex. 3 at 7.

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For purposes of summary judgment, I conclude that the undisputed facts establish that Petitioner’s staff waited at least 15 minutes between discovering R4 in cardiac arrest and contacting NJ Mobile.³

Staff’s delay in calling for EMS assistance – whether it be 50 or 15 minutes – plainly contravened AHA guidelines for dealing with cardiac emergencies and was a failure to comply with professional standards for providing care as is required by regulation.  Calling for assistance is among the very first things that staff should have done, because EMS assistance may include resuscitation measures that a nursing facility staff is not equipped to provide.  But here, staff delayed making the call.

I do not find that staff intentionally failed to call for EMS assistance promptly.  Rather, the failure evidences a lack of coordination among staff and a failure by staff to comprehend their responsibilities when a resident suffers a cardiac emergency.

I have considered Petitioner’s arguments in opposition to CMS’s motion. I find them to be unavailing.

Petitioner asserts that its staff complied fully with AHA guidelines in responding to R4’s distress.  Petitioner Preakness Healthcare Center’s Pre-hearing Brief and Opposition to Motion for Summary Judgment (Petitioner’s brief) at 10.  In making this argument Petitioner notes that the guidelines call for activation of the emergency response system, chest compressions (CPR), rescue breaths, and retrieving and setting up a defibrillating device.  Id.  Petitioner claims that its staff did all of that – that is certainly true.  However, what Petitioner omits is the timing of responses directed by the AHA guidelines, which call for “immediate” attempts to obtain EMS assistance.  Petitioner’s brief at 10; CMS Ex. 18 at 2.  The failure by Petitioner’s staff to do so is the critical error that the staff made in attempting to resuscitate R4.

Petitioner contends that its staff complied with Petitioner’s “code blue” policy.  Petitioner’s brief at 11-12, 15-16.  Petitioner describes that policy as including instructions for the care to be provided by the first staff member on the scene of a resident suffering from a cardiac emergency.  Id.  But calling for EMS assistance was something that the staff was required to do immediately per AHA guidelines, and the staff failed to do that.⁴

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Additionally, Petitioner argues that in calling NJ Mobile, staff provided that entity with the information necessary to obtain emergency assistance for R4.  Petitioner’s brief at 12.  The content of that call is not at issue. The timing of the call is the essence of CMS’s noncompliance allegations and the basis for finding Petitioner to be noncompliant.  CMS brief at 14-19.

Petitioner challenges the qualifications of the New Jersey State agency surveyor who made initial noncompliance findings that CMS subsequently accepted.  Petitioner’s brief at 17-18.  The essence of this argument is that the surveyor lacked the training, experience, and judgment needed to evaluate Petitioner’s compliance.

The surveyor’s acumen is not at issue in this case.  CMS’s allegations, and my decision, hinge on undisputed facts.  My conclusion that Petitioner failed to call timely for EMS assistance is not a matter of a surveyor’s subjective conclusions, but rather is based on the indisputable lapse of time between staff’s discovery of R4 in distress and the call from staff to NJ Mobile.

Petitioner argues that the expert opinion of Gail E. Rader, R.N., M.S.N. at the very least establishes a fact dispute concerning Petitioner’s compliance with 42 C.F.R. § 483.25.  Petitioner’s brief at 18-20; see also P. Ex. 16.  Petitioner relies on the following opinions expressed by Ms. Rader that:

• Any clinician would recognize that R4 suffered a massive cardiac arrest, causing her to become unresponsive with no pulse;
• Immediate initiation of CPR was the best course of action in light of the resident’s condition;
• The state agency surveyor failed to consider that Petitioner’s facility was experiencing an outbreak of Covid when R4 suffered her cardiac arrest and that the resident’s crisis must be evaluated in the context of that outbreak;
• R4’s cardiac arrest was clinically irreversible, and that Petitioner’s staff took all reasonable measures to assist the resident nevertheless.

Id.

Ms. Rader is not a fact witness.  She makes no assertions concerning the timing of the staff’s call to NJ Mobile.  Nor does she express an opinion as to the timing of that call.  I

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find that nothing in her testimony contradicts the undisputed facts establishing the delayed call, nor does it contradict what AHA instructs about calling for EMS services.  Ms. Rader also offers no explanation as to why the presence of a Covid outbreak at Petitioner’s facility, or even the possibility that R4’s cardiac arrest was caused by Covid infection, would justify or explain the delay by Petitioner’s staff in calling for EMS services.

Furthermore, I find Ms. Rader’s opinions to be irrelevant.

Indeed, my finding of noncompliance with quality of care requirements does not hinge on R4’s condition and certainly not on Ms. Rader’s opinion of the resident’s condition.  The likelihood that the resident’s cardiac arrest may have been the consequence of Covid infection and was irreversible by staff or by EMS personnel does not affect my conclusion that the care that Petitioner’s staff provided to the resident failed to comply with professionally recognized practice standards.  Petitioner’s staff was in no position to know, when R4 experienced cardiac arrest, whether her condition was reversible or irreversible, nor do the AHA guidelines so differentiate.  At that moment, staff’s duty was to assume that the resident’s condition was reversible and to act accordingly.  Mandated responses included immediately calling for EMS assistance and not delaying that call for 15 or 50 minutes.

Furthermore, I do not disagree with Ms. Rader’s conclusion that immediate initiation of CPR was the best course of action that staff could have taken when responding to R4’s cardiac arrest.  But immediately commencing CPR did not preclude staff from also immediately calling for EMS services.  There are no facts before me that establish that the staff faced a choice between initiating CPR and calling for assistance.  There was more than one staff member attending to R4 on the morning of July 4, 2020.  One could have called immediately for EMS assistance while others attended to the resident.

2. Remedy

CMS imposed a per-instance civil money penalty of $20,780 against Petitioner as a remedy for its noncompliance.  That penalty falls within the permissible range of per-instance penalties.  42 C.F.R. § 488.438(a)(2); 45 C.F.R. Part 102.

Deciding a penalty amount within the permissible range for per-instance penalties depends on evidence relating to factors 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 include the seriousness of a facility’s noncompliance and its culpability.

The undisputed facts strongly support CMS’s remedy determination.

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a. Seriousness

Petitioner’s noncompliance was extremely serious by any measure.  I conclude that the seriousness of Petitioner’s noncompliance, as established by undisputed facts, justifies the penalty amount in and of itself.

Obviously, a cardiac emergency, such as the one sustained by R4, is life threatening and very often fatal.  That is true with even the most prompt and professional intervention.  Without that intervention, however, an individual’s chances of survival fall to zero.  Not calling for EMS services immediately in this case deprived R4 of what was admittedly a very slight chance of surviving.  Moreover, failure by Petitioner’s staff – evident, based on undisputed facts – to comprehend the need to call 911 immediately in the case of a cardiac emergency jeopardized the safety of all the residents of the facility.

CMS found Petitioner’s noncompliance to be so egregious as to put residents of Petitioner’s facility in immediate jeopardy.  “Immediate jeopardy” is defined at 42 C.F.R. § 483.301 to mean noncompliance that causes or is likely to cause a resident or residents to experience serious injury, harm, impairment, or death.  Petitioner challenges the immediate jeopardy finding.  However, that is not a finding that is subject to my review in this case.  A party has no right to challenge a finding of immediate jeopardy unless that finding would affect the range of civil money penalties that may be imposed to remedy the facility’s noncompliance.  42 C.F.R. § 498.3(b)(14), (d)(10).⁵

Here, the penalty imposed against Petitioner fell within the range of per-instance civil money penalties.  There is only one range of permissible per-instance penalty amounts and, consequently, the immediate jeopardy finding did not affect the range of penalties and is therefore not challengeable.

But, although Petitioner may not appeal the finding of immediate jeopardy level noncompliance, that finding remains a valid measure of just how serious that noncompliance was.

b. Culpability

The undisputed facts establish Petitioner’s management to have been culpable for its staff’s noncompliance.  That culpability buttresses the case for imposing the penalty determined by CMS.

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There is no evidence demonstrating that Petitioner ever trained its staff in the necessity for immediately calling for EMS services if a resident suffers a cardiac emergency.  CMS Ex. 1 at 12; CMS Ex. 3 at 6; CMS Ex. 17 at 12.  Petitioner did not routinely perform drills to determine whether its staff responded appropriately to “code blue” messages.  CMS Ex. 20 at ¶ 33.  Petitioner’s “code blue” policy did not stress the need for staff to call for EMS services immediately.  To the contrary, it told staff only that they should call for an ambulance “if needed,” without defining what that term means.  CMS Ex. 8 at 2.  The failure to train staff and to monitor their performance left staff at a loss when R4 experienced her cardiac emergency.  I do not fault staff for failing immediately to call for EMS assistance on the morning of July 4, 2020.  Rather, I fault Petitioner’s management for its failure to train staff in the implementation of AHA guidelines and its failure to monitor the staff’s performance in “code blue” situations.

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Endnotes

¹ The undisputed facts do not establish the exact time when the nurse made the “code blue” call.

² NJ Mobile is an ambulance transport service.  It does not provide EMS services.

³ Petitioner’s treatment records are likely the most credible evidence of when R4 went into cardiac arrest.  I make no credibility findings, however, in that I grant summary judgment.

⁴ Petitioner argues also that its staff’s call to NJ Mobile – an entity that does not provide EMS services, but which provides emergency transport – as opposed to calling 911 directly for those services, was mandated by municipal policy.  Id. at 15-16.  CMS does not allege that Petitioner’s staff called the wrong entity, but that it delayed calling in contravention of AHA guidelines.  See generally CMS brief.

⁵ There are limited additional circumstances in which a facility may challenge a finding of immediate jeopardy including a finding of substandard care that causes a facility its authority to conduct a nurse aide training and competency program.  That is not at issue in this case – although Petitioner lost its authority, that became moot by the passage of time and Petitioner is not now challenging that loss.