Remington Transitional Care of Richardson, DAB CR6402 (2023)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS), sustaining its determination to impose remedies against Petitioner, Remington Transitional Care of Richardson, a skilled nursing facility.  These remedies are civil money penalties of: $16,085 for each day of a period that began on December 2, 2021, and continued through December 6, 2021; and $435 for each day of a period that began on December 7, 2021, and continued through February 28, 2022.

I. Background

This case was very recently reassigned to me from the docket of another administrative law judge.  The case record includes a motion for summary judgment filed by CMS and Petitioner’s opposition to that motion.

CMS filed exhibits in support of its motion, identified as CMS Ex. 1 – CMS Ex. 35.  Petitioner filed exhibits in opposition identified as P. Ex. 1 – P. Ex. 3.  I do not receive these exhibits into evidence because I grant summary judgment based on undisputed

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facts.  However, I cite to some of these exhibits in this decision, either to illustrate facts that are not in dispute or to address a party’s arguments.

II. Issues, Findings of Fact and Conclusions of Law

 A. Issues

The issues are whether undisputed material facts establish Petitioner’s noncompliance with Medicare participation requirements, whether CMS’s determinations of immediate jeopardy level noncompliance are clearly erroneous, and whether CMS’s penalty determinations are reasonable in amount and duration.

B. Findings of Fact and Conclusions of Law

CMS found a total of 25 failures by Petitioner to comply substantially with Medicare participation requirements.  Of these, four findings are of immediate jeopardy level noncompliance.  Petitioner offered arguments in opposition to the immediate jeopardy level findings but did not offer specific arguments or facts in opposition to CMS’s many findings of non-immediate jeopardy level noncompliance.

In this decision I address the determinations of immediate jeopardy level noncompliance.  I do not address the determinations of non-immediate jeopardy level noncompliance.  They are administratively final because Petitioner did not address them specifically in its brief nor did Petitioner offer evidence that challenges CMS’s findings.¹  That said, the determinations of immediate jeopardy level noncompliance are in and of themselves more than sufficient to support the penalties that CMS determined to impose.

I apply the principles of Rule 56 of the Federal Rules of Civil Procedure in deciding whether to grant summary judgment.  I base my decision on facts that are undisputed.  I make no fact finding that requires a credibility determination.  I find no impediment to deciding a case if resolving a fact dispute in favor of one party or the other would make no difference to the outcome.  Where reasonable inferences may be made from the

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undisputed facts, I make those inferences that are favorable to the party against whom the motion for summary judgment is filed.

At bottom, the question that I ask in any case where a party moves for summary judgment is this:  is there any issue that would benefit from being resolved in an evidentiary hearing?  Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010).

There is no such issue in this case.  Petitioner has offered virtually no challenge to the facts asserted by CMS.  I accept as true those facts that Petitioner does allege.  As I explain in detail below, none of the facts alleged by Petitioner serve to alter the outcome in any respect.

1. Noncompliance

The undisputed facts overwhelmingly establish the four immediate jeopardy level deficiencies alleged by CMS.  Individually and collectively, these deficiencies demonstrate an appalling dereliction of responsibility to residents by Petitioner and its staff, a pattern of failures by staff to provide residents with the care that they were entitled to receive.

The staff failed to document and implement a resident’s request that the staff not attempt to resuscitate her (DNR request) if the resident became nonresponsive.  They failed to follow a physician’s orders for treating a resident who suffered grievously from pressure sores.  The staff failed to document and assess the status of the resident’s and other residents’ pressure sores and failed to implement measures designed to protect residents against developing new wounds.  The staff failed also to assure that residents’ dietary needs were addressed by personnel with the training and competence to order nutrition care.

a. Failure to comply with the requirements of 42 C.F.R. § 483.10(c)(8) and (g)(12)

A skilled nursing facility must protect its residents’ rights to request, refuse, and/or discontinue treatment and to formulate advanced directives.  42 C.F.R. § 483.10(c)(8) and (g)(12).  A facility must honor a resident’s DNR request if the resident becomes nonresponsive.

There are several things that a facility’s staff must do to honor a resident’s request not to be resuscitated.  First, they must ascertain the resident’s wishes.  Staff must resolve any ambiguity in the resident’s intentions.  Second, staff must assure that the resident’s wishes – either to be resuscitated or not – are prominently placed in the resident’s record

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and are made known to all staff members who provide care to the resident.  Finally, staff must implement the resident’s desire if the resident becomes nonresponsive.

The undisputed facts establish that Petitioner’s staff failed to document and accede to a resident’s DNR request.  The consequence was that when the resident became nonresponsive, staff labored to resuscitate her against the resident’s wishes.  This is an obvious violation of regulatory requirements.

A resident who is identified as R90 was admitted by Petitioner on September 8, 2021.  CMS Ex. 25 at 1.  Prior to her admission the resident and her attorney executed a DNR request.  The resident’s family met with Petitioner’s director of nursing prior to the resident’s admission and asserted then that the resident did not want to be resuscitated if she became nonresponsive.  CMS Ex. 29 at 3.  Petitioner’s staff therefore was on notice before the inception of the resident’s admission that the resident did not want to be resuscitated.  A family member hand delivered the resident’s DNR request to Petitioner’s facility on October 1, 2021.  Id. at 9.

Petitioner’s staff did not memorialize the resident’s request as expressed by her family at the pre-admission meeting with the director of nursing.  The staff failed to record immediately the resident’s DNR request when the family provided it on October 1.  CMS Ex. 29 at 3.  The staff did not place the resident’s DNR request in her record until October 2, 2021, the day of her death.  The consequence of this failure to memorialize and document the resident’s request not to be resuscitated was that a physician issued an order on September 29, 2021, incorrectly identifying the resident as having “full code” status, meaning that the resident wanted to be resuscitated.  CMS Ex. 25 at 28.  Staff compounded the error by creating a care plan for R90 stating that the resident desired full code care.  Id. at 2.

Petitioner’s staff found R90 unresponsive on the evening of October 2, 2021.  CMS Ex. 25 at 17.  Unaware of the resident’s DNR request, the staff attempted to resuscitate her.  Emergency medical technicians (EMTs) were summoned to the facility and took charge of performing resuscitation.  The EMTs asked to review the resident’s record and discovered the DNR request.

Petitioner does not deny any of these facts.  Rather, Petitioner contends that its staff were not obliged to honor R90’s request not to be resuscitated because her written DNR request was not witnessed as is required by State law.  Petitioner’s brief at 13.

That assertion is no defense.  There is nothing in the regulations that states that a facility may ignore a resident’s request not to be resuscitated because it isn’t in the proper written form.  When a resident or that resident’s family or power of attorney informs a facility staff that the resident does not want to be resuscitated, that puts the facility on notice of the resident’s wishes.  From that moment the facility is obligated to honor those wishes.

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Staff may not hide behind a legal technicality to avoid complying with the resident’s request.  If those wishes are not reduced to writing or if they are in writing but in a form that doesn’t comply with State requirements, then the facility’s staff must do whatever they can to verify the resident’s request and to assure that it is memorialized in the proper form.

R90’s family put Petitioner’s staff on notice prior to her September 2021 admission that the resident did not want to be resuscitated.  That notice required Petitioner’s staff to comply with the resident’s request and, if necessary, to assure that they received whatever documentation that they needed to comply.  The facts establish that the staff failed to follow up on the resident’s family’s verbal instruction that the resident did not want to be resuscitated.  Furthermore, staff failed to clarify the resident’s record when the family hand delivered the DNR request to the facility on October 1, 2021.

b. Failure to comply with the requirements of 42 C.F.R. § 483.25(b)(1)

A skilled nursing facility must provide care that is consistent with professionally recognized practice standards to protect its residents against the development of avoidable pressure sores.  It must also provide those residents who have sores with care that meets professional practice standards.  42 C.F.R. § 483.25(b)(1).  When a resident develops a pressure sore after being admitted to a facility, the facility bears the burden of proving that the sore was medically unavoidable.  Rae-Ann Geneva Nursing Home, DAB No. 2461 at 6 (2012).  Failure by a facility to carry out a physician’s order in treating or preventing pressure sores is irrefutable evidence of noncompliance.

The care that Petitioner’s staff gave to a resident that is identified as R71 grossly violated these requirements.

Petitioner’s staff failed to assess R71’s pressure sores, failed to care plan for these sores, and failed to comply with a wound specialist’s treatment orders.

• Petitioner admitted R71 to its facility on November 9, 2021.  The resident was gravely ill and suffered from multiple pressure sores that predated his admission.  CMS Ex. 12 at 154-167.  Petitioner’s staff should have carefully assessed each of these wounds to determine their prognosis but failed to do so.  Id.
• The hospital discharged R71 with orders defining the care that the resident should receive for his pressure sores.  These orders included necessary preventive interventions.  CMS Ex. 34 at 7.  Petitioner’s staff failed to implement these orders.  CMS Ex. 12 at 121-132.

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• Petitioner’s staff wrote a care plan for the resident that failed to include the hospital’s instructions, or the initial orders written by a wound specialist.  CMS Ex. 12 at 39, 98.
• The staff failed to perform weekly skin assessments of R71.  CMS Ex. 12 at 117-120.
• The staff failed to implement follow up orders issued by a wound specialist on November 26, 2021.  CMS Ex. 12 at 44-77.  Staff failed to amend the resident’s care plan to show additional orders made by the wound specialist.  Id. at 39.
• Providing a resident with adequate nutrition is an essential element in preventing and treating pressure sores.  However, staff’s initial dietary assessment of R71 did not identify the resident as suffering from sores.  CMS Ex. 12 at 139.

R71 developed multiple new pressure sores while residing at Petitioner’s facility.  They occurred in the context of failures by Petitioner’s staff to consistently provide appropriate care for the resident.

• The resident exhibited a new pressure sore on December 1, 2021.  CMS Ex. 12 at 118.  However, the staff failed to document the sore’s size.  Id. at 117-118.  Furthermore, the evaluation on December 1, 2021 was the only weekly evaluation that Petitioner performed on R71 during his stay at the facility.
• Subsequently, on December 1, 2021, a wound care specialist identified the resident as having developed five new pressure sores in less than a week from the specialist’s previous evaluation.  CMS Ex. 34 at 9; CMS Ex. 30 at 4.  None of these new sores had been identified and assessed by Petitioner’s staff.
• Petitioner’s policy was to turn and reposition bed-bound residents and check these residents for incontinence every two hours.  CMS Ex. 5 at 5, 9; CMS Ex. 10 at 56.  However, the staff failed to provide this care to R71 consistently.  CMS Ex. 32 at 17; CMS Ex. 34 at 9.

In responding to these facts Petitioner asserts primarily that its staff provided R71 with an air mattress to protect him against exacerbating his pressure sores or from developing new sores.  Petitioner’s brief at 15-16.  Petitioner also asserts that the resident was assessed for pressure sore risks upon his admission to the facility, and that he received a nutritional consultation.  Id.  I accept these fact assertions as true for purposes of deciding CMS’s motion for summary judgment.  However, they fail to rebut the undisputed facts that establish a cascade of failures by Petitioner’s staff to provide ordered and appropriate care to R71.

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Petitioner has not rebutted, for example, the facts showing that its staff consistently failed to update the resident’s plan of care to address his sores.  It has not challenged those facts establishing that several of the wound care specialist’s orders were not implemented.  It has not rebutted the documented instances of failures to assess and measure the resident’s ulcers after the resident was admitted to Petitioner’s facility, nor has it rebutted facts showing that the staff failed to provide consistent personal care to R71.  And it has provided no evidence to show that the multiple pressure sores that the resident developed during his stay at Petitioner’s facility were unavoidable.

As for Petitioner’s assertion that the resident received a nutritional consultation, while that is true, it does not rebut CMS’s assertion and the undisputed facts showing that the consultation did not address the unique needs that the resident might have considering his multiple pressure sores.²

c. Failure to comply with the requirements of 42 C.F.R. § 483.25

A skilled nursing facility must provide each of its residents with care of a quality that is consistent with professional standards of practice and in accord with that resident’s plan of care and personal preferences.  42 C.F.R. § 483.25; Life Care Ctr. of Bardstown, DAB No. 2479 at 22 (2012), aff’d, Life Care Ctr. of Bardstown v. Sec’y of U.S. Dep’t of Health & Human Servs., 535 F.App’x 468 (No. 12-4420) (6th Cir. 2013).

CMS’s allegations that Petitioner’s staff failed to comply with this regulation again addresses the failure by Petitioner’s staff to honor R90’s request that she not be resuscitated.  The allegations also address the care provided to a resident identified as R111, who, like R71, suffered from pressure sores.

I have discussed the undisputed facts relating to R90.  Suffice it to say that these facts establish that Petitioner’s staff failed to follow the resident’s request that she not be resuscitated if she became nonresponsive.  This is a quality of care deficiency because Petitioner was obligated to respect the resident’s personal preferences and did not do so.

As for R111, the undisputed facts establish that the staff were derelict in providing care to that resident in ways that mirror the deficient care that they provided to R71.  This was an obvious quality of care deficiency.

For example, although the staff’s initial assessment of R111 established that she had a diabetic ulcer on her left foot, the assessment failed to describe or measure the wound.

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CMS Ex. 13 at 8.  That rendered it impossible for the staff to determine in future assessments whether the wound was comparatively worse or better.

The initial assessment was deficient in other respects.  It was not signed and dated and contains no evaluation of the remainder of R111’s skin.  CMS Ex. 13 at 8.

A wound care specialist evaluated the resident on November 30, 2021.  CMS Ex. 13 at 14-15.  The specialist found that the resident had three wounds and made recommendations about how to care for them.  Id.  However, Petitioner’s staff did not update R111’s plan of care to show these recommendations.  CMS Ex. 3 at 77-78.  Similarly, Petitioner’s staff failed to document findings made in December 2021 of multiple wounds on the resident’s left foot.  CMS Ex. 13 at 8-9, 16-39.

Petitioner offered no additional facts to rebut CMS’s allegations about the care that staff gave to R90.  As for R111, Petitioner offered no facts to challenge CMS’s noncompliance findings.³

d. Failure to comply with the requirements of 42 C.F.R. § 483.60(a)(1), (2)

A skilled nursing facility must employ sufficient staff with the appropriate competencies and skills to carry out the functions of food and nutrition service.  That staff must include a qualified dietitian or another professional with equivalent qualifications.  42 C.F.R. § 483.60(a)(1).

Petitioner utilized the services of a registered dietitian and those of a registered nutrition and dietetic technician.⁴  These are individuals with different training and skills.  A registered dietitian is competent to assess and diagnose a resident’s dietary needs and to prescribe appropriate nutrition for that resident.  A dietetic technician’s role is that of an assistant.  The technician is competent to carry out tasks pursuant to the direction and orders of a registered dietitian and to provide information about a resident’s condition to the dietitian, but certainly not to make diagnoses and to order care.  CMS Ex. 10 at 23-38.

The undisputed facts show that in Petitioner’s facility the dietetic technician provided care that was beyond her training and competency, and that should have been provided

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by a registered dietitian.  This violated regulatory requirements because it was not care provided by a qualified dietitian or a professional with equivalent qualifications.

For example, on November 10, 2021, the dietetic technician performed a nutrition therapy assessment of R71.  CMS Ex. 12 at 139-140.  The technician signed the assessment with the title “dietitian” placed next to that individual’s name.  Id. at 140.  Assessing the resident was a task that should have been performed by a registered dietitian and not by the dietetic technician.

The unauthorized assessment of R71 by the dietetic technician was not an isolated example of improper dietary care at Petitioner’s facility.  Undisputed facts show that the dietetic technician ordered tube feeding for a resident identified as R110.  CMS Ex. 18 at 2.  Ordering such care was something that should have been done by the registered dietitian and was beyond the technician’s training and competence.  The dietetic technician ordered the tube feeding based on the resident’s family’s request and not pursuant to an order by the dietitian.  Id.

Undisputed facts also establish a failure by a registered dietitian to perform a nutritional assessment of a resident identified as R125, who suffered from multiple pressure sores, even though the resident had been at Petitioner’s facility for at least three weeks.  CMS Ex. 31 at 6, 9-10; CMS Ex. 3 at 134.

Petitioner does not specifically challenge any of the facts that I have described.  Rather, Petitioner asserts that there was a protocol between the registered dietitian and the dietetic technician pursuant to which the technician made recommendations as to nutrition and then notified the dietitian about these recommendations within 24 hours after they were made.  Petitioner’s brief at 11.

I accept this assertion as true.  But it does not rebut CMS’s allegations of improper dietary care or the facts on which those allegations rest.  The dietetic technician’s orders for care were not made legitimate merely by notifying the registered dietitian of those orders.  At a minimum, the dietitian had to review and personally approve any recommendation that the dietetic technician made.  The record of this case is devoid of evidence of such review and approvals.  Furthermore, Petitioner has not rebutted any of the specific instances documented by CMS in which the record shows that the dietetic technician acted without express approval by the registered dietitian.

Petitioner asserts additionally that the dietetic technician was well trained and experienced.  Petitioner’s brief at 11.  That may be so, but under no circumstances does that qualify the dietetic technician to assume the duties and responsibilities of the registered dietitian.

2. Immediate Jeopardy

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CMS determined that each of the four deficiencies that I describe above was so egregious as to put residents of Petitioner’s facility in immediate jeopardy.  The term “immediate jeopardy” is defined at 42 C.F.R. § 488.301 to include noncompliance that causes or is likely to cause a resident or residents to experience serious injury, harm, impairment, or death.

Where CMS determines that noncompliance is at the immediate jeopardy level, the burden falls on the facility to prove that determination to be clearly erroneous.  42 C.F.R. § 498.60(c)(2).  A finding of immediate jeopardy level noncompliance presumptively is correct.  Liberty Commons Nursing & Rehab Ctr. - Johnston, DAB No 2031 at 18-19 (2006), aff’d, Liberty Commons Nursing & Rehab Ctr., - Johnston v. Leavitt, 241 F. App’x 76 (4th Cir. 2007).

In cases where I hold evidentiary hearings, I would evaluate a finding of immediate jeopardy by deciding whether evidence proved that the finding is clearly erroneous.  My task is a bit different when considering a motion for summary judgment.  Here, I ask:  has Petitioner offered facts that, assuming their truth, would show that CMS’s immediate jeopardy determination is clearly erroneous?

The undisputed facts plainly support CMS’s determinations of immediate jeopardy level deficiencies.

For example, failure to prevent, identify, or treat a resident’s pressure sores likely will lead to very serious consequences, including infection and/or death.  Courtney H. Lyder and Elizabeth A. Ayello, Pressure Ulcers: A Patient Safety Issue, National Library of Medicine, https://www.ncbi.nlm.nih.gov/books/NBK2650/ (last visited Dec. 4, 2023).  The undisputed facts establish that Petitioner failed wholesale to discharge its responsibilities to protect its residents against developing pressure sores and to treat those sores that residents developed.  Staff failed to assess wounds, failed to document them, failed to care plan for those wounds, and failed to carry out treatment orders.  Staff additionally failed to assure that residents having pressure sores were appropriately evaluated for their dietary needs. 

Petitioner has offered no facts that would suggest that any of these determinations are clearly erroneous.  Petitioner asserts that there are questions of fact concerning the scope and severity of its noncompliance.  However, it hasn’t identified any facts that address that issue.  Petitioner’s brief at 18-19.

3. Remedies

CMS determined to impose two remedies.  These are civil money penalties of:  $16,085 for each day of a period that began on December 2, 2021, and continued through

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December 6, 2021; and $435 for each day of a period that began on December 7, 2021, and continued through February 28, 2022.

I find these remedies to be reasonable, both in penalty amount and duration.

The penalty amounts fall within the permissible ranges of per-diem penalty amounts for immediate and non-immediate jeopardy level civil money penalties.  42 C.F.R. § 488.438(a)(i), (ii); 45 C.F.R. Part 102.⁵  The amounts are supported by the factors used in deciding penalty amounts set forth 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)).  In this case, the relevant factor that sustains the penalties is the seriousness of Petitioner’s noncompliance.

As I have discussed, there were immediate jeopardy level wholesale derelictions of responsibility at Petitioner’s facility, most obviously in the care that Petitioner’s staff provided to residents with pressure sores.  These derelictions were not isolated instances but were, in fact, a pattern of improper and slipshod care.  Petitioner’s staff failed to provide its residents with the care that they deserved from the moment of their intake at Petitioner’s facility.  Wounds were not assessed, care plans were not written to address pressure sores, physicians’ orders were not implemented, and changes in condition were not documented.  Residents developed multiple pressure sores absent any evidence that these were unavoidable.

Petitioner does not challenge the remedies that CMS determined to impose except to argue that the scope and severity of its deficiencies is less than immediate jeopardy.  I have addressed that argument above.  Finally, Petitioner has not challenged CMS’s findings about the duration of Petitioner’s noncompliance.

Endnotes

¹ The initial prehearing order issued by the administrative law judge to whom this case originally was assigned, states:  “Briefs must contain all arguments that a party intends to make. I may not consider an argument and evidence that relates to the argument if a party fails to address it in its brief.”  Standing Order at 3, ¶ 4.c.i.  In its brief in opposition to CMS’s motion for summary judgment, Petitioner stated only that:  “CMS has failed to present sufficient evidence to support any or all of the non-IJ [non-immediate jeopardy level] scope and severity citations . . . .”  Petitioner’s Response to Respondent’s Motion for Summary Judgment and Prehearing Brief (Petitioner’s brief) at 18.  That laconic fact-free statement is no defense to CMS’s findings and effectively abandons Petitioner’s opposition to them. 

² As I discuss below, the nutritional consultation was performed by an individual who lacked the qualifications to assess a resident’s nutritional status and to order dietary care.

³ In the part of its brief that responds to CMS’s allegations of noncompliance with 42 C.F.R. § 483.25, Petitioner asserts that it discusses the care that its staff provided to R111 “elsewhere in this brief.”  Petitioner’s brief at 14.  I have read Petitioner’s brief closely and it contains no discussion of the care that its staff gave to R111.

⁴ Referred to in various documents by the acronym “NDTR.” 

⁵ Civil Money Penalty amounts are adjusted annually.  86 FR 62928, 62931 (November 15, 2021).