West Hills Health & Rehab Center, DAB CR6419 (2024)

DECISION

Petitioner, West Hills Health & Rehab Center, is a skilled nursing facility, located in Canoga Park, California, that participates in the Medicare program.  Unknown to facility staff, one of its vulnerable residents sat, unprotected, outside in the sun and suffered serious burns.  Following a subsequent complaint investigation, completed on October 29, 2021, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and imposed a civil money penalty (CMP) of $760 per day for 38 days of substantial noncompliance.  Petitioner appealed.

For the reasons set forth below, I find that, from October 29 through December 5, 2021, the facility was not in substantial compliance with Medicare program requirements and that the penalty imposed is reasonable.

Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to

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promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301. 

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys.  Facilities must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a); 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4). 

Here, on October 29, 2021, a surveyor from the California Department of Public Health (state agency) completed a complaint investigation survey of the facility.  Based on her findings, CMS determined that the facility was not in substantial compliance with the following Medicare participation requirements:  

• 42 C.F.R. § 483.12(a)(1) (Tag F600 – freedom from abuse, neglect, and exploitation), cited at scope-and-severity level G (isolated instance of substantial noncompliance that causes actual harm but does not pose immediate jeopardy to resident health and safety);
• 42 C.F.R. § 483.12(b)(1)-(3) (Tag F607 – freedom from abuse, neglect, and exploitation: written policies and procedures), cited at scope-and-severity level E (pattern of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.25(d)(1) and (2) (Tag F689 – quality of care: accident prevention), cited at scope-and-severity level G; and
• 42 C.F.R. § 483.25(g)(1)-(3) (Tag F692 – quality of care: nutrition and hydration), cited at scope and severity level E.

CMS Ex. 1. 

CMS imposed a $760 per day penalty for 38 days of substantial noncompliance (October 29 through December 5, 2021) (total CMP $28,880).  CMS Ex. 14 at 2. 

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Rule 56(f) order and decision on the written record.  The parties submitted pre-hearing briefs (CMS Br.; P. Br.).  With its brief, CMS submitted 23 exhibits (CMS Exs. 1-23).  With its brief, Petitioner submitted 11 exhibits (P. Exs. 1-11). 

Based on my initial review of the parties’ submissions, it appeared that no material facts are in dispute, and that summary judgment might be appropriate.  Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, I issued an order, dated October 10, 2023, identifying what appear to be material facts not in dispute and giving the parties notice and the opportunity to respond.  Rule 56(f) Order (e-file # 18).¹ 

I pointed out that, in the alternative, the parties could agree to have the case decided based on the written record.  Id. at 4. 

CMS responded to my order by filing a Motion for Summary Judgment (CMS MSJ) and, alternatively, agreeing that this matter may be decided on the written record.  CMS MSJ at 21.  For its part, Petitioner did not dispute any of the facts listed in my Rule 56(f) order but attached conditions to my entering summary judgment or deciding the case on the written record:  that I consider some additional facts and that I admit written testimony to which CMS has objected.  P. Response to Rule 56(f) Order at 1.² 

I will decide this matter based on the written record, without considering whether the standards for summary judgment are satisfied.  My standing order directs the parties to exchange, as a proposed exhibit and in the form of an affidavit or written declaration, the written direct testimony of any proposed witness.  Standing Order at 3 (¶ 4(c)(4)) (Sept. 2, 2022).  The order also directs each party to indicate whether it wants to cross-examine the opposing party’s witnesses.  Order at 5 (¶ 9).  The order points out that a hearing would be necessary only if a party files admissible, written direct testimony, and, in compliance with the order, the opposing party asks to cross-examine.  Order at 5 (¶ 10). 

Each party has waived cross-examination of the opposing party’s witness(es).  CMS MSJ at 22; P. Response at 2 (“Petitioner would only like the opportunity to cross examine if CMS chooses to cross examine Petitioner’s witnesses.”).  Thus, because the witnesses’ direct testimonies are already in the record, and no witnesses will be cross-examined, an in-person hearing is unnecessary.  This matter may therefore be decided based on the

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written record.  HeartFlow, Inc., DAB No. 2781 at 16-17 (2017), citing Vandalia Park, DAB No. 1940 at 28-29 (2004), aff’d, Vandalia Park v. Leavitt, 157 F. App’x 858 (6th Cir. 2005).  I may therefore weigh the evidence and draw inferences based on which are the more reasonable.³ 

CMS’s objections to Petitioner’s exhibits.  I am required to “inquire fully into all of the matters at issue” and to admit any documents that are relevant and material.  42 C.F.R. § 498.60(b)(1).  I have broad discretion to admit evidence, and I am not bound by the federal rules.  42 C.F.R. § 498.61. 

CMS objects to my admitting portions of P. Ex. 1 and to my admitting P. Ex. 5 in its entirety.⁴  I overrule CMS’s objections. 

• P. Ex. 1 consists of facility policies and procedures. CMS points out (correctly) that pages 3-11 duplicate CMS Ex. 5 at 6-13.  Ordinarily, I prefer that parties not duplicate exhibits that have been submitted.  In this case, however, I agree with Petitioner that portions of CMS’s submission are difficult to read and, in the interests of expediency, admit P. Ex. 1 in its entirety. 
• P. Ex. 5 is the written declaration of Registered Nurse Heather Saunders, whom Petitioner characterizes as an expert witness. Citing Rule 702 of the Federal Rules of Evidence, CMS argues that a witness’s purported expert opinion is admissible only if based on sufficient facts or data and, in CMS’s view, RN Saunders’ opinions are not supported.  Again, I am not bound by the federal rules.  42 C.F.R. § 498.61.  That the opinions expressed may not be well-supported does not mean that the testimony is inadmissible in these administrative proceedings; it means that the testimony should not be afforded much, if any, weight.  See, e.g., Copperas Cove LTC Partners, Inc., DAB No. 3049 at 16 (2021); River City Care Center, DAB No. 2627 at 13-16 (2015); Golden Living Center – Frankfort, DAB No. 2296 at 6-8 (2009). 

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I therefore admit into evidence CMS Exs. 1-23 and P. Exs. 1-11. 

Issues

• From October 29 through December 5, 2021, was the facility in substantial compliance with the following Medicare program requirements: 42 C.F.R. §§ 483.12(a)(1), 483.12(b)(1)-(3), 483.25(d)(1) and (2), and 483.25(g)(1)-(3); and  
• If the facility was not then in substantial compliance, is the penalty imposed – $760 per day for 38 days of substantial noncompliance – reasonable?

With respect to its finding of actual harm (G-level), CMS argues, correctly, that I have no authority to review CMS’s scope and severity determination.  CMS MSJ at 20.  The regulations authorize such review if:  1) a successful challenge would affect the range of the CMP; or 2) CMS has made a finding of substandard quality of care that results in the loss of approval of the facility’s nurse aide training program.  42 C.F.R. §§ 498.3(b)(14), 498.3(d)(10); Madison Cty. Nursing Home, DAB No. 2895 at 16 (2018); NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7 (2014).

Here, the per-day penalty would remain in the same lower range even if the scope and severity were reduced, so the first criterion is not met. 

Nor is the second criterion met.  Petitioner argues that the G-level citations are reviewable because those deficiencies were cited under sections 483.12 (abuse/neglect) and 483.25 (quality of care).⁵  P. Br. at 2.  Under the definition of “substandard quality of care,” deficiencies cited under those regulations might result in a finding of substandard quality of care that would be reviewable, but only if they rise to the level of:  immediate jeopardy; pattern of or widespread actual harm (levels H and I); or widespread potential for more than minimal harm (level F).  42 C.F.R. § 488.301.  Because the scope of a G-level deficiency is isolated, it does not meet the definition of substandard quality of care.  Nor did CMS find substandard quality of care.  CMS Ex. 14. 

In any event, even if CMS had made that finding, its scope-and-severity determination would not be reviewable.  If (as here) I approve a penalty of $11,995 or more, CMS’s scope-and-severity finding would not affect approval of the facility’s nurse aide training program (assuming it has one).  Under the statute and regulations, the state agency cannot approve the program if CMS imposes a penalty of $11,995 or more.  Thus, the facility

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loses its approval without regard to the scope-and-severity finding.  Act § 1819(f)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv); 87 Fed. Reg. 15,100, 15,120 (March 17, 2022).⁶ 

Discussion

1. The facility was not in substantial compliance with 42 C.F.R. §§ 483.12 and 483.25 because, contrary to its policies and contrary to a resident’s care plan, staff did not adequately monitor the resident’s movements, allowing him to leave the building and sit, unprotected, in the sun for an indeterminate period of time. When he was discovered, he had suffered serious burns and staff recognized that his condition presented a life-threatening emergency.  Yet they delayed consulting his physician and contacting emergency medical services.⁷ 

Program Requirements.  42 C.F.R. § 483.12 (tags F600, F607).⁸  A facility resident has the right to be free from abuse, neglect, and exploitation.  42 C.F.R. § 483.12.  “Abuse” is defined as the willful infliction of injury, unreasonable confinement, intimidation, or punishment, with resulting physical harm, pain, or mental anguish.  It includes depriving an individual of goods or services needed to attain or maintain physical, mental, and psychosocial wellbeing.  42 C.F.R. §§ 483.5, 488.301. 

“Neglect” is defined as the failure of the facility, its employees, or service providers to provide a resident with the goods and services necessary to avoid the resident’s suffering physical harm, pain, mental anguish, or emotional distress.  42 C.F.R. §§ 483.5, 488.301. 

Among other requirements, the facility must develop and implement written policies and procedures that prohibit and prevent abuse, neglect, and exploitation of residents.  It must establish policies and procedures to investigate any such allegations; and it must train staff on activities that constitute abuse and neglect, procedures for reporting incidents of abuse and neglect, dementia management, and resident abuse prevention.  42 C.F.R. § 483.12(b)(1)-(3); see 42 C.F.R. § 483.95(c).  A facility does not comply with section

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483.12 if it fails to develop policies and procedures that are adequate to prevent neglect.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 5 (2017).  

42 C.F.R. § 483.25(d) (Tag F684).⁹  The Medicare statute mandates that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  Act § 1819(b)(2). 

The quality-of-care regulation characterizes quality of care as a “fundamental principle that applies to all treatment and care provided to facility residents.”  Based on the resident’s comprehensive assessment, the facility must ensure that the resident receives treatment and care in accordance with professional standards of practice, the resident’s comprehensive, person-centered care plan, and the resident’s choices.  42 C.F.R. § 483.25.  To this end, the “quality-of-care” regulation mandates, among other requirements, that each resident’s environment remain as free of accident hazards as possible and that each resident receive adequate supervision and assistive devices to prevent accidents.  42 C.F.R. § 483.25(d).  Del Rosa Villa, DAB No. 2458 at 7 (2012); Clermont Nursing & Convalescent Ctr., DAB No. 1923 at 9-10 (2004), aff’d sub nom. Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F. App’x. 900 (6th Cir. 2005); accord, Briarwood Nursing Ctr., DAB No. 2115, at 5 (2007) (holding that the facility must “take all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”). 

The regulation “imposes on facilities an affirmative duty designed to achieve favorable outcomes to the highest practicable degree.”  Sheridan Health Care Ctr., DAB No. 2178 at 14 (2008), citing Windsor Health Care Ctr., DAB No. 1902 at 16-17 (2003); Woodstock Care Ctr., DAB No. 1726 at 3-4 (2000), aff’d, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003).  “The regulation focuses not on whether an accident occurs[,] but, rather, on whether the facility has provided supervision and assistance devices adequate to prevent an accident.”  Kenton Healthcare, LLC, DAB No. 2186 at 13 (2008). 

Facility Policies.  A facility’s failure to follow its anti-neglect policy can put it out of substantial compliance with section 483.12(c) (then section 483.13(c)), as can its failure to follow its other policies and procedures where those policies define what a facility

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deems “the goods and services necessary to avoid physical harm.”  Avalon Place Kirbyville, DAB No. 2569 at 9 (2014). 

Similarly, CMS “may reasonably rely on a facility’s policy relating to the care and treatment of its residents as evidencing the facility’s understanding of what must be done to attain or maintain residents’ highest practicable physical, mental, and psychosocial well-being, as required by [42 C.F.R.] section 483.25.”  Green Valley Healthcare and Rehab. Ctr., DAB No. 2947 at 6 (2019), citing The Laurels at Forest Glenn, DAB No. 2182 at 18 (2008); North Las Vegas Care Ctr., DAB No. 2946 at 6 (2019); Hanover Hill Health Care Ctr., DAB No. 2507 at 6 (2013) (observing that “the Board has long held that a facility’s own policy may be sufficient evidence . . . of what the facility has determined is needed to meet the quality of care requirements in section 483.25.”). 

Facility policy:  abuse and mistreatment of residents.  The facility had in place a policy regarding the abuse and mistreatment of residents.  CMS Ex. 5 at 6; P. Ex. 1 at 3.  Its stated purpose is to “uphold a resident’s right to be free from verbal, sexual, and mental abuse, corporal punishment, and involuntary seclusion.”  Id. 

Consistent with the regulation, the policy defines abuse as the willful infliction of injury, unreasonable confinement, or punishment, with resulting physical harm, pain, mental anguish, or depriving an individual of goods or services needed to attain or maintain physical, mental, and psychosocial wellbeing.  Id. 

The policy defines neglect as “failure to provide goods and services necessary to [a]void physical harm, mental anguish, or mental illness.”  CMS Ex. 5 at 7; P. Ex. 1 at 4. 

Among its directives, the policy requires the facility administrator (and/or designee) to ensure adequate staff on each shift to meet resident needs.  The administrator (and/or designee) should ensure supervision and monitoring of staff to identify any occurrences of inappropriate behaviors, such as using derogatory language, rough handling, or ignoring residents while giving care.  Department supervisors are required to ensure that adequate supervision is being given and appropriate assistance extended to residents in need.  As part of the daily and routine inspection, the DON, Director of Staff Development, Nursing Supervisors, and designees are required to monitor staff performance to ensure that residents are given appropriate and adequate care, based on the needs identified in their comprehensive assessments.  CMS Ex. 5 at 10; P. Ex. 1 at 7.  

Facility policy:  reporting abuse.  A section of the facility’s abuse policy addresses reporting abuse.  The policy requires the facility to ensure reporting of all alleged and substantiated violations to the state agency and all other agencies, as required, and to take all necessary corrective action based on the results of the investigation.  Mandated reporters include the facility’s administrator, supervisors, and any staff.  Any mandated reporter who has observed or has knowledge of an incident that reasonably appears to be

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physical abuse, abandonment, isolation, financial abuse, or neglect must report the instance by telephone immediately or as soon as practically possible, and by written report sent within two working days.  CMS Ex. 5 at 13; P. Ex. 1 at 10. 

Facility staff are required to report to their supervisor as well as the state agency. 

When an incident “has been determined to have satisfied the definition of an ‘abuse,’”

• The facility administrator must report all alleged and substantiated violations to the state agency and other agencies, as required;
• The facility must notify the state agency within two hours of knowledge of the incident, followed by a letter explaining the circumstances surrounding the incident;
• The facility administrator is responsible for implementing corrective measures to prevent further occurrences;
• Any employee involved in the incident will be suspended while the investigation is pending; and
• An incident report and investigation must be completed within five working days.

CMS Ex. 5 at 15; P. Ex. 1 at 11. 

Facility policy:  quality of care.  The facility had in place a “quality-of-care” policy.  Its stated intent echoes the regulation:  “to ensure that each resident receive[s] and the facility provides the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care” and in accordance with state and federal regulations.  CMS Ex. 5 at 1.  Among other requirements, the policy mandates that the resident environment remains as free of accident hazards as possible and that each resident receives adequate supervision and assistance devices to prevent accidents.  CMS Ex. 5 at 2. 

The policy also requires that staff be trained in these and other areas.  CMS Ex. 5 at 3. 

Facility policy:  patient safety plan.  The facility’s patient safety plan calls for the facility’s establishing a “patient safety committee,” charged with reviewing reports of “patient safety events,” monitoring and implementing corrective actions, and making recommendations to eliminate “future patient safety events.”  The policy defines “patient safety events” as preventable adverse events or potential adverse events, as well as health-care-associated infections. CMS Ex. 5 at 5. 

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The committee is to meet at least annually, and is composed of health care professionals (physicians, nurses, pharmacists, and administrators).  It reviews and approves the patient safety plan; reviews patient “safety events”; monitors corrective actions; and recommends actions to eliminate patient “safety events.”  It establishes a reporting system that “supports and encourages a culture of safety and reporting” and allows facility staff to analyze the root causes of the events.  The committee also provides training to facility personnel and health care practitioners.  CMS Ex. 5 at 5. 

Facility policy:  treating exposure to heat.  The facility had in place a written policy for treating exposure to heat, its stated objective:  to establish proper body temperature and prevent further complications in individuals overexposed to heat.  P. Ex. 1 at 1-2. 

The policy defines “heat stroke” as a response to heat, characterized by extremely high body temperature and a disturbance in the sweating mechanism.  According to the policy, it constitutes an immediate life-threatening emergency for which medical care is required.

Symptoms include:  high body temperature; red, hot, dry skin; strong rapid pulse; and unconsciousness.  P. Ex. 1 at 1. 

The policy directs staff to take the resident’s vital signs.  If the individual’s body temperature is 105ºF or higher, they should undress the resident, sponge bare skin with cool water, apply ice packs continuously.  Place the individual in a tub of cool water.  If the procedure is ineffective, transfer to an acute care hospital.  P. Ex. 1 at 2. 

Resident 1 (R1).  R1 was an 80-year-old man, originally admitted to the facility on March 15, 2016, and most recently readmitted on May 22, 2021.  CMS Ex. 3 at 1.  He suffered from a long list of impairments, including cancer, congestive heart failure, type 2 diabetes, anemia, polyneuropathy, generalized muscle weakness, chronic kidney disease, obesity, overactive bladder, malignant neoplasm of the prostate, dementia, and major depressive disorder.  CMS Ex. 3 at 2, 36-37.  He required extensive assistance with bed mobility, transfers, “locomotion” on and off the unit, and activities of daily living.  CMS Ex. 3 at 3, 8, 33.  He did not walk but used a wheelchair.  CMS Ex. 3 at 34.  “Extensive assistance” meant a one-person physical assist.  CMS Ex. 3 at 33. 

Similarly, R1’s physical therapy assessment confirmed that he did not walk and required “supervision/touching assistance” with wheeling/locomotion.  CMS Ex. 3 at 72. 

R1’s BIMS (brief interview of mental status) score was 3, indicating a severe cognitive impairment.  CMS Ex. 3 at 25.  He had difficulty communicating some words or finishing thoughts, but, if prompted or given time, he was able to do so.  He understood most conversation but had difficulty communicating some words or finishing thoughts.  CMS Ex. 3 at 24.  According to Licensed Vocational Nurse Leslle Mariano, he communicated his discomfort through facial expressions.  P. Ex. 7 at 2 (Mariano Decl. ¶¶ 10, 11) (“Resident 1 responded by making a grimacing face.”).  His physician

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determined that R1 did not have the capacity to understand and make decisions.  CMS Ex. 3 at 69. 

R1’s care plan.  R1’s care plan identified, as a problem, his risk for falls related to his history and diagnoses (anemia, diabetes, congestive heart failure, chronic kidney disease).  CMS Ex. 3 at 10, 17; see CMS Ex. 3 at 36. 

Throughout his care plan, staff were directed to observe and monitor him frequently.  Specifically, his plan required “frequent visual monitoring” and directed staff to place him close to the nursing station for close observation.  Staff were to provide him with a safe environment.  CMS Ex. 3 at 10, 17. 

The events of June 20, 2021.  The high temperature in Canoga Park, California on the afternoon of June 20, 2021, was 87 degrees Fahrenheit.  CMS Ex. 8 at 1. 

The record contains two reports describing the events of June 20, 2021:  a Change-of- Condition/Assessment form, prepared by Registered Nurse Supervisory Nurse Lourdes Argame; and an Incident Report, prepared by the facility’s Director of Nursing (DON), Marissa Magbanua.  They do not include contemporaneous notes; they were prepared after-the-fact.  How long after-the-fact is difficult to determine.  The change-of-condition report indicates, on its face, that it was prepared at 5:00 p.m. on June 20.  But that cannot be accurate, because the report also describes events that occurred as late as 6:00 p.m. that day, and, at 5:00 p.m., the drafter of the report, Supervisor Argame, was calling Emergency Medical Services (EMS).  CMS Ex. 3 at 64-66.  The investigation report is dated June 20, 2021, but the individual interviews included in that report are dated June 21 through 25.  CMS Ex. 7. 

Moreover, as discussed below, these documents, particularly the change-of-condition report, include some verifiably inaccurate information, raising questions about their general reliability.  They are notably inconsistent with the EMS report and hospital records.  Even the testimony of Petitioner’s witnesses who were involved in the incident contradict the reports in critical respects.  

The facility offers no explanation for how the reports were prepared.  In her written testimony, DON Magbanua does not explain or comment on the incident report.  Notwithstanding her significant involvement in the incident, Nurse Supervisor Argame did not testify. 

The facility’s reports show the following timeline: 

• Noon to 1:15 p.m. The facility’s incident report indicates that, between noon and 1:15 p.m., R1 was in the sunroom, where he usually eats his lunch.  Video surveillance showed that he then unlocked his wheelchair and moved into the

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• 1:30 to 1:40 p.m. A nurse aide, identified as CNA3, reported that she saw R1 in the hallway near the nurses’ station at about 1:30 p.m. and that he was still there at 1:40 p.m.  CMS Ex. 7 at 6.

• 2:45 p.m. A nurse aide, identified as CNA2, reported that she was caring for another resident and “went outside [the room] to get a diaper.”  She saw R1 in the hallway.  She knew the time because it was near the end of her shift.  CMS Ex. 7 at 4. 

  Petitioner asserts that Nurse Aide Olmedo Pacheco saw R1 between 3:10 and 3:20 p.m.  P. Br. at 4.  Although not particularly significant, I find this highly unlikely.  In his statement to the facility’s investigator, Nurse Aide Pacheco reported that he arrived for work sometime after 3:00 p.m. (maybe 3:10 or 3:15 – the exact number has been obscured).  According to that statement, while making his initial rounds, he saw the “resident of room 53c.”  He does not mention R1 by name.  CMS Ex. 7 at 16. 

  Significantly, Nurse Aide Pacheco did not repeat this claim at any other time.  During his interview with Surveyor Labadlabad, he said that he arrived at work late on June 20 and that it was a very hot day.  He was assigned to R1 but couldn’t find him.  When he thought to check the patio, he found him there, alone, at “around 4:15.”  CMS Ex. 4 at 4; CMS Ex. 6 at 4-5 (Labadlabad Decl. ¶¶ 10, 11).  In his sworn testimony, Nurse Aide Pacheco talked about R1’s “usual routines,” but did not claim to have seen R1 any earlier than 4:25 p.m. on June 20, 2021.  P. Ex. 8 (Pacheco Decl.). 

• 3:25 p.m. According to the change-of-condition report, at 3:25 p.m. on June 20, 2021, LVN Mariano saw R1 in the hallway by the facility’s rehabilitation gym.  He was sitting in his wheelchair, next to the glass window.  CMS Ex. 3 at 64-65; CMS Ex. 7 at 3; P. Ex. 7 at 2 (Mariano Decl. ¶ 12). 
• 4:25 p.m. No one observed R1 again until about 4:25 p.m., when Nurse Aide Pacheco found him sitting outside, on an enclosed patio.  CMS Ex. 3 at 62; CMS Ex. 4 at 4; P. Ex. 8 at 2 (Pacheco Decl. ¶ 10).  He was breathing and had a pulse but was unresponsive.  He had a rapid heartbeat, and low blood pressure.  His oxygen saturation level was 94%, which is low.  His pulse was rapid (a dangerously-high 138 bpm).  His skin was “warm,” according to the change-of-

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• 4:45 p.m. At 4:45 p.m., staff moved R1 “toward his room” and took his vital signs.  According to the change-of-condition report, his blood pressure was 94/66; his pulse rate was a dangerous 138 beats per minute; his respiratory rate was 20.  Remarkably, the facility report says the resident’s temperature was normal – 98.2ºF.  CMS Ex. 3 at 64.  Again, I find this simply not credible.  As I explain below, it does not comport with other, more reliable, records of the resident’s temperature nor with the actions that staff took. 

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• 4:55 p.m. At 4:55 p.m., a half hour after finding the resident in such distress, staff called his responsible party, who directed them to call emergency services.  CMS Ex. 3 at 64.  At 5:00 p.m., the nurse supervisor called 911.  The change-of-condition report says that his blood pressure was then 80/54; his pulse was 151 bpm; but again, according to the report, his temperature was an unbelievable 98.2ºF.  

  The facility’s change-of-condition report says that the paramedics arrived in R1’s room at 5:45 p.m., which is inconsistent with the EMS report and incompatible with the hospital records.  CMS Ex. 3 at 64.  According to the EMS report, the paramedics were dispatched at 5:12 p.m., arrived at the facility at 5:18 p.m., and were with R1 at 5:20 p.m.  CMS Ex. 9 at 1.  The trip to the hospital took 30 minutes, and R1 arrived at the emergency room at 5:52 p.m.  CMS Ex. 9 at 1; CMS Ex. 10 at 2.  I find that the EMS report, with its detailed and contemporaneous timelines, is reliable.  The facility’s report is not. 

  When they arrived at the facility, the paramedics described R1 as “unresponsive,” with an “altered level of consciousness.”  He was hot to the touch, with flushed, red, sunburned skin, and some blistering.  His breathing was rapid, labored, and shallow.  His “Glasgow Coma Scale” was 3, which is the lowest possible and indicates that the individual is completely unresponsive.  CMS Ex. 9 at 2-4.  The paramedics suspected heat stroke with hypotension and respiratory distress.  They administered intravenous fluids and transported him to the hospital.  Id.

  The report prepared by the EMS staff conflicts with the facility’s reports in other respects.  According to the EMS, facility nursing staff reported that the resident had been sitting outside in his wheelchair in the patio area in the heat “for several

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At the hospital.  R1 arrived at the emergency room at about 5:52 p.m.  His “Glasgow Coma Scale” score was still 3.  CMS Ex. 10 at 2.  Significantly, at 5:55 p.m. (after an hour and a half of body-cooling efforts), his body temperature was dangerously high, reported at 41.7ºC or 107.06ºF and 41ºC or 105.8ºF.  CMS Ex. 10 at 4, 5.  R1 had second degree burns on his left shoulder and abdomen.  He was started on BiPAP (Bilevel positive airway pressure machine) for acute respiratory failure.  He was cooled with a cooling blanket, cool IV fluids, and a three-way Foley (catheter) with bladder irrigation with cool fluids.  Ice packs were applied to his groin and axilla.  His temperature returned to normal, but his mentation did not improve.  He was intubated while still in the emergency department and, ultimately, admitted to the intensive care unit.  CMS Ex. 10 at 2, 5, 7. 

The problem with the facility’s reports, including its record of R1’s temperature and description of his skin.  The facility’s reporting of R1’s condition does not make sense.  Most significant, according to the facility’s records, the resident’s temperature was a steady (and normal) 98.2ºF, and his skin was merely “warm to the touch.”  CMS Ex. 3 at 64. 

Petitioner points to the facility reports and suggests that R1’s temperature was normal and that his skin was no warmer than it had been during his many routine exams, in which his physician consistently checked “warm” and “dry” in describing R1’s skin.  P. Br. at 5-6, citing P. Ex. 4. 

For two reasons, I reject the notion that R1’s body temperature was normal and that his skin temperature was essentially unchanged from what it usually was.  First, the facility’s notes are contradicted by the EMS and hospital records and even the Petitioner’s witnesses’ testimony.  Second, if, in fact, R1 was not over-heated, no one should have implemented any cooling measures.  Yet, facility staff, the EMTs, and hospital staff imposed measures designed to counteract heat stroke, which is characterized by “hot, dry skin or profuse sweating” and very high body temperature (among other symptoms).  See

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https://www.cdc.gov/niosh/topics/heatstress/heatrelillness.html#:~:text=Heat%20stroke%20is%20the%20most,within%2010%20to%2015%20minutes; P. Ex. 1 at 2 (directing staff to implement measures if the individual’s body temperature is 105ºF or higher).

Further, contrary to the facility’s claims, R1’s skin was hot.  The EMTs described R1’s skin as “hot to the touch with flushed red sunburn skin with some blistering.”  CMS Ex. 9 at 4.  In her testimony, LVN Mariano describes the measures that staff took to lower R1’s skin temperature but concludes that his “skin was not cooling down.”  P. Ex. 7 at 3 (Mariano Decl. ¶ 16).  Similarly, Nurse Aide Pacheco declares that after “[s]everal minutes with the distributed ice packs, [R1’s] skin was not cooling down.”  P. Ex. 8 at 3 (Pacheco Decl. ¶ 13).  DON Magbanua also concedes that R1’s skin was hot:  “[R1’s] hot skin was not cooling down.”  P. Ex. 6 at 3 (Magbanua Decl. ¶ 9). 

That staff attempted to cool the resident’s skin and testified that their efforts did not work shows that his skin was hot and needed to be cooled.  Why try to cool down someone’s skin if it isn’t hot in the first place? 

Similarly, the notion that R1’s temperature remained normal until he reached the hospital emergency room defies logic.  The hospital readings are reliable, and the facility’s records are not.  Petitioner points to no evidence suggesting that, notwithstanding staff’s and the EMT’s cooling efforts, R1’s temperature rose almost nine degrees (from 98.2ºF to 107.06ºF) in the 30 minutes it took to transport him to the emergency room.  See https://www.ncbi.nlm.nih.gov/books/NBK537135/. 

Significantly, not one of Petitioner’s witnesses – including those who were caring for R1 – testified that his temperature was normal (98.2ºF).  DON Magbanua talks about staff taking the vital signs but does not mention what his temperature was.  P. Ex. 6 at 3 (Magbanua Decl. ¶ 9).  LVN Mariano concedes that she personally checked the resident’s vital signs but does not say what his temperature was nor suggest that it was normal.  She also says that they started cooling measures, which were ineffective.  P. Ex. 7 at 3 (Mariano Decl. ¶ 16).  Nurse Aide Pacheco talks about the vital signs being taken but does not mention what R1’s temperature was.  P. Ex. 8 at 3 (Pacheco Decl. ¶ 13). 

Not even Consulting Nurse Heather Saunders – who supported virtually all of Petitioner’s assertions (even the more questionable ones) – suggests that the 98.2ºF reading could have been accurate.  She simply says nothing about the incongruities between the temperatures noted in the facility’s report and the mass of evidence showing that R1’s temperature was dangerously high.  P. Ex. 5 (Saunders Decl.). 

Instead of citing any medical or scientific evidence, Petitioner points to its policy for treating exposure to heat and implies that, based on the policy, an afflicted individual’s body temperature can continue to rise during the cooling process.  “If the resident’s temperature continuously rises throughout cooling processes underlined, the procedure

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must be repeated once more.”  P. Ex. 6 at 2 (Magbanua Decl. ¶ 7); P. Ex. 7 at 3 (Mariano Decl. ¶ 15).  That isn’t exactly what the facility policy says.  First, it requires staff to initiate cooling procedures if the resident’s temperature is 105ºF or higher.  If, during the cooling process, the individual’s temperature “rises again,” repeat the procedure.  P. Ex. 1 at 2.  In other words, if the cooling procedures are ineffective in lowering and maintaining a lower body temperature, staff should repeat them.  

Substantial noncompliance:  failing to provide supervision.  Remarkably the facility’s incident report characterizes the event as “unavoidable.”  CMS Ex. 7 at 1.  This conclusion is plainly wrong; the incident occurred because staff were not following the resident’s care plan, which required that they monitor him frequently.  That he was able to leave the building undetected is substantial evidence that “staff were not providing the . . . supervision . . . required by [his] care plan.”  Kenton Healthcare, DAB No. 2186 at 7.  

Moreover, the facility has not produced evidence that it had in place any system for ensuring that staff were frequently monitoring R1.  It appears that their sightings were simply happenstance, not the result of any deliberate effort to monitor the resident.  Staff’s purported sightings of R1, as they were conducting other business, hardly qualifies as “frequent monitoring.”  It appears that R1 was simply left on his own.  So long as he remained in the sunroom or hallway, staff would see him.  But when he left those areas, no one seems to have noticed.  No one monitored his departure or knew where he went. 

This puts the facility out of substantial compliance with Medicare regulations.  See Somerset Nursing & Rehabilitation Facility, DAB No. 2353 at 22 (2010) (finding substantial noncompliance where a resident’s care plan called for “frequent monitoring,” but no evidence established that the directive was ever “systematically implemented.”); Pinehurst Healthcare & Rehabilitation Ctr., DAB No. 2246 at 25 (2009) (upholding the administrative law judge’s finding that the facility did not substantially comply with the regulation requiring it to prevent abuse, where the resident’s care plan called for “closer monitoring,” but the facility produced “no contemporaneous documentary evidence establishing that such monitoring was instituted and no evidence about how this monitoring was actually performed in order to ensure the residents’ safety.”).¹⁴ 

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Assistance (or lack of assistance) with locomotion.  Notwithstanding R1’s assessments, which called for extensive (one-person physical assist) with locomotion on and off the unit, CMS contends – and Petitioner concedes – that throughout the afternoon of June 20, 2021, no staff member assisted him as he attempted to move through the facility’s halls.  CMS Ex. 3 at 33-34, 72. 

Petitioner first complains that CMS did not describe this problem in the Statement of Deficiencies.  P. Br. at 9.  It is well-settled that CMS is not limited to the specific allegations included in the Statement of Deficiencies.  CMS Ex. 1.  As the Departmental Appeals Board has repeatedly explained, the Statement of Deficiencies is a notice document, not intended to “lay out every single detail in support of finding that a violation has been committed.”  Alden Town Manor Rehab. & HCC, DAB No. 2054 at 17 (2006) (citing Pacific Regency Arvin, DAB No. 1823 at 9-10 (2002)).  So long as the facility knows what it must answer to – which, as here, was accomplished through pre-hearing record development – the facility has sufficient notice. 

On the merits, Petitioner’s witness, Nurse Consultant Saunders, concedes that R1 was assessed as needing a one-person assist with locomotion in his wheelchair, but she trivializes the significance of the MDS (Minimum Data Set) assessment, arguing that it is “not a provider order” and “does not imply any requirements for the monitoring of a resident’s locomotion in his wheelchair.”  P. Ex. 5 at 4 (Saunders Decl. ¶ 9).  Putting aside the fact that R1’s physical therapy assessment and a “licensed nurse record” (CMS Ex. 3 at 72, 120) also called for supervision with wheelchair locomotion, Nurse Consultant Saunders ignores the regulatory requirement that a resident’s treatment and care be “[b]ased on the comprehensive assessment of the resident.”  42 C.F.R. § 483.25.  Contrary to the witness’s suggestion, the assessment’s purpose goes beyond collecting “federally accessible population-wide data on function and disability in the vulnerable nursing home population.”  Id.; P. Ex. 5 at 4 (Saunders Decl. ¶ 9).  The assessment dictates the level of supervision a facility must provide to the resident. 

Nurse Consultant Saunders also asserts that “it was not ordered that the resident’s locomotion be continuously supervised.  It was also not specified that the resident always require[d] locomotive assistance.”  P. Ex. 5 at 7 (Saunders Decl. ¶ 17).  The problem here wasn’t just that facility staff failed to provide “continuous” assistance; they failed to provide R1 with any assistance, much less the “one-person-physical assist” called for in his assessments and licensed nurse record, as he attempted to move through the facility on the afternoon of June 20.  CMS Ex. 3 at 33.  I do not consider staff’s happening to see the resident as they went about their other duties as fulfilling the facility’s obligation to supervise and to assist R1 with his locomotion. 

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Nor do I accept Petitioner’s unsupported assertion that this was R1’s choice; that he “liked” to drag himself along, rather than receive assistance from staff.  Nothing in the record supports this claim.  R1’s medical records do not suggest that “independent” or “unsupervised” locomotion was a form of exercise or recreational therapy for him.  See CMS Ex. 3 at 51, 53.  Nor do Petitioner’s witnesses make such a claim.  In this regard, Petitioner mischaracterizes their testimony.  They do not assert that R1 “liked to hold onto the handlebars by the hallway of the rehabilitation gym and pull himself up and down the hallway.”  See P. Br. at 13.  Rather, they vaguely allude to “afternoon activities.”  P. Ex. 7 at 2 (Mariano Decl. ¶ 12) (describing R1 as “relaxing and watching the cars drive by”); P. Ex. 8 at 2 (Pacheco Decl. ¶ 7) (describing R1’s afternoon activities as “relaxing in the sunroom” or some unspecified “exercise and relaxation in the hallway”).¹⁵  I do not consider witness testimony that the resident “grimaced” in order to communicate that he was in pain as evidence that he did not want or require assistance from staff.  See P. Br. at 11. 

Delays in contacting EMS.  When staff discovered an unresponsive R1, they should immediately have consulted the resident’s physician.  42 C.F.R. § 483.10(g)(14) (requiring staff to consult R1’s physician “immediately” of any change in condition).  See Life Care Ctr. of Tullahoma, DAB No. 2304 at 7 (2010); Magnolia Estates Skilled Care, DAB No. 2228 at 8 (2009). (“Immediately” means “as soon as the change . . . is detected, without any intervening interval of time.”).  Instead, staff waited half an hour before even calling the physician. 

Although CMS did not cite a deficiency under section 483.10(g), the facility’s failing to consult immediately R1’s physician, as required, supports the finding that the facility was not in substantial compliance with the neglect and quality-of-care regulations.  It did not provide R1 with the goods and services he needed (immediate physician input) to avoid suffering physical harm.  42 C.F.R. § 483.12.  Nor did it provide the care and services he needed to attain the highest practicable physical well-being.  42 C.F.R. § 483.25. 

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Moreover, the parties agree that facility staff waited 35 minutes before calling EMS.  Initially, staff justified the delay by claiming that the resident’s “Physician Order for Life-Sustaining Treatment” (POLST) and “Do Not Resuscitate” (DNR) order precluded them from doing so.  When Surveyor Labadlabad asked Supervisor Argame why she did not immediately call 911, she said that it was because R1 had a DNR order on file.  CMS Ex. 6 at 7-8 (Labadlabad Decl. ¶ 21).  DON Magbanua told her the same thing:  “she thought nursing staff did the right thing by not calling 911 immediately . . . because [R1] had a [DNR,] which indicated he wanted selective measures.”  CMS Ex. 6 at 8 (Labadlabad Decl. ¶ 22).  In her written testimony, DON Magbanua does not deny making that statement.  P. Ex. 6 (Magbanua Decl.).  Nurse Supervisor Argame did not testify and thus did not deny making the statement.  See Beatrice State Development Ctr., DAB No. 2311 at 17, 18 (2010) (pointing out that the facility could have but did not present employee testimony that refuted the statements the surveyors claimed they made); Omni Manor Nursing Home, DAB No. 1920 at 11 (2004) (holding that statements of facility employees to the surveyors may be admitted in an administrative proceeding and may constitute substantial evidence).  The change-of-condition report also supports the view that staff delayed because they thought that R1’s DNR precluded them from calling EMS, and they eventually called at R1’s son’s insistence.  They wrote:  “Son aware of DNR status but instructed to transfer to ER,” which suggests that they were documenting that they were not responsible for something they considered to be a mistake.  CMS Ex. 3 at 64. 

In fact, staff’s understanding of the POLST and DNR orders was simply wrong.  He was breathing and had a pulse.  Nothing in the documents themselves prevented them from transferring R1 to the hospital.  CMS Ex. 3 at 67. 

The facility seems to have abandoned this defense.  Instead, it now claims that its delays were consistent with the facility policy for treating heat stroke.  But the policy does not mandate a 35-minute delay before calling EMS.  In fact, it is silent on the amount of time staff could safely delay.  It says to try the cooling procedure and, “if [the] procedure is ineffective” (as it certainly was here), transfer the individual to the hospital.  P. Ex. 1 at 2.  Moreover, providing the interventions did not preclude staff from calling EMS as soon as they realized that R1’s life was in danger. 

Petitioner, however, argues that the delay was justified because, although R1 was unconscious and had a rapid pulse rate, his temperature was normal (98.2ºF) and his skin temperature was warm, as it usually was.  P. Br. at 14.  As I have already discussed, those findings are verifiably false.  His body temperature was higher than 105ºF (probably at least 107ºF) and his skin was hot, red, and blistered. 

Moreover, as DON Magbanua testified, “each diagnos[i]s [of a heat-related condition is] unique and individualized symptoms [are] required to be triaged as well as procedure[s] that staff must adhere to for each diagnosis.”  P. Ex. 6 at 2 (Magbanua Decl. ¶ 6).  Here,

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R1’s situation was uniquely bad.  Staff knew that his condition was life-threatening.  He was very old, and his health was exceptionally compromised.  He did not respond at all to their interventions.  If, in fact, the facility’s policy precluded them from calling EMS under those circumstances (and I don’t believe that it did), the policy is at fault; professional staff should have recognized that fact and called EMS.  I agree with the EMS opinion that, in light of the resident’s severely compromised condition, the nursing staff was negligent in delaying the 911 call.  CMS Ex. 9 at 4.  

Substantial noncompliance:  failing to provide an environment free of accident hazards.  Staff thus did not provide R1 with the services and supervision he required to maintain his physical wellbeing, as required by sections 483.12 and 483.25. 

Nor was the environment free of accident hazards.  DON Magbanua concedes that the facility had no policies for monitoring physical sections of the facility, like the patio.  P. Ex. 6 at 3 (Magbanua Decl. ¶ 11).  The patio was a potentially dangerous location, particularly in heat or inclement weather.  The patio doors were not visible from the nurses’ station, and they opened automatically, whenever someone approached them, so it was very easy for a resident to wander out there, as evidenced by R1’s ability to do so.  The patio had no security cameras, and staff did not regularly monitor the area.  CMS Ex. 6 at 4 (Labadlabad Decl. ¶¶ 8, 9); CMS Ex. 20 at 1. 

One of the nurse aides, identified as CNA5, also conceded that R1 “sometimes” went out to the patio by himself, so staff knew that he had engaged in this potentially reckless behavior.  CMS Ex. 6 at 4 (Labadlabad Decl. ¶ 9).  Again, Petitioner has not denied that the nurse aide made the statement nor that the statement was accurate.  See Beatrice State Development Ctr., DAB No. 2311 at 17, 18; Omni Manor Nursing Home, DAB No. 1920 at 11. 

Because the facility did not ensure that R1’s environment remained free of accident hazards, and instead had a potentially dangerous, easily accessible, but unmonitored patio, it was not in substantial compliance with section 483.25(d). 

2. The facility was not in substantial compliance with 42 C.F.R. § 483.25(g)(2) because, contrary to its policies and resident care plans, it did not ensure that all residents were offered sufficient fluids to maintain proper hydration and health.

Program requirement:  42 C.F.R. § 483.25(g)(2) (Tag F692).  The “quality-of-care” regulation also mandates that the facility ensure that, based on a comprehensive assessment, 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; 2) is offered sufficient fluid intake to maintain proper hydration and

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

Facility policy:  hydration.  The facility had in place a written hydration policy “[t]o ensure that each resident who receives an oral diet is encouraged to consume adequate fluids for maintaining proper hydration in compliance with physician orders.”  CMS Ex. 5 at 16.  The policy requires nurse aides to provide water at each resident’s bedside.  Nurse aides on all shifts are to offer water to each resident.  Among their duties, they must distribute ice and water to the residents and change the water daily.  CMS Ex. 5 at 16; CMS Ex. 19. 

Residents 2, 3, and 4 (R2, R3, R4).  R2 was a 71-year-old man, admitted to the facility on July 2, 2021, suffering from a long list of impairments, including an intercranial abscess and granuloma (clusters of white blood cells reacting to infections or inflammation), a malignant neoplasm of the brain, syndrome of inappropriate secretion of antidiuretic hormone, epilepsy, anemia, moderate malnutrition, dementia, and psychosis.  He suffered from muscle wasting and had difficulty walking.  CMS Ex. 11 at 1.  He was severely cognitively impaired, with a BIMS score of 3.  CMS Ex. 11 at 9.  R2 was at risk for dehydration.  To reduce his risk, his care plan directed nursing staff to “offer and encourage [him] to increase fluid intake.”  CMS Ex. 11 at 13.  

R3 was a 92-year-old man, admitted to the facility on March 8, 2020.  He suffered from kidney failure, diabetes, and chronic kidney disease.  He had had a cerebral infarction (stroke), resulting in hemiplegia (paralysis on one side of the body) and hemiparesis (partial weakness on one side of the body).  CMS Ex. 12 at 1-2.  He was severely cognitively impaired, with a BIMS score of 3.  CMS Ex. 12 at 5.  He was unsteady on his feet and used a walker or a wheelchair.  CMS Ex. 12 at 9.  He was at risk for dehydration.  CMS Ex. 12 at 10-12.  His care plan directed nursing staff to “offer and encourage [him] to increase fluid intake.”  CMS Ex. 12 at 10. 

R4 was a 68-year-old man, admitted to the facility on July 29, 2021, suffering from encephalopathy, alcohol abuse, anemia, diabetes, gastritis, and an anxiety disorder.  He had difficulty walking, with muscle wasting and atrophy.  He had a history of falls and had suffered a head injury.  CMS Ex. 13 at 1-2.  He was at risk for dehydration, and his care plan directed nursing staff to “offer and encourage [him] to increase fluid intake.”  CMS Ex. 13 at 9. 

Facility noncompliance:  failing to provide water as required.  Surveyor Labadlabad observed resident water pitchers.  Those next to the beds of R2, R3, and R4, were empty.  CMS Ex. 6 at 10 (Labadlabad Decl. ¶ 28).  

Petitioner admits that the residents were not given water as required but characterizes the surveyor observation as “isolated” and maintains that it is insufficient to substantiate a 

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violation. Petitioner suggests that, because no evidence establishes that the residents were dehydrated or repeatedly denied water, CMS has not established substantial noncompliance.  P. Br. at 22. 

I disagree.  As CMS points out, the facility violated its own policy and the residents’ care plans for maintaining resident hydration.  CMS need not establish actual harm in order to find substantial noncompliance.  So long as the deficiency has the potential for causing more than minimal harm, the facility is not in substantial compliance.  Moreover, the surveyor was in the facility for a limited time.  Staff knew she was there and that their performance was being observed.  Under those circumstances they were far less likely to disregard their responsibilities.  That the surveyor observed that three vulnerable residents had not been provided water is significant and justifies the deficiency citation. 

3. The penalty imposed is reasonable.

To determine whether the CMP is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance, including repeat deficiencies; 2) the facility’s financial condition; 3) 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.  The absence of culpability is not a mitigating factor.  The factors 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. 

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  Barn Hill Care Center, DAB No. 1848 at 21 (2002); Community Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1638 at 8 (1999).  

I determine whether a penalty is reasonable based on the per-day penalty, not the total accrued penalty.  Crawford Healthcare and Rehab., DAB No. 2738 at 20 (2016). 

The burden is on the facility to demonstrate that a reduction is necessary to make the CMP amount reasonable.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 22 (2017).  

Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, July 5, 2022.  CMS Ex. 14; 87 Fed. Reg. 15,100; 15,111 (Mar. 17, 2022).  Here, the $760 per day-penalty is at the very low end of the penalty range ($120 to $7,195).  87 Fed. Reg. 15,111. 

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Considering the relevant factors, the amount of the penalty is reasonable. 

The facility has a less-than-stellar compliance history.  Over the five years preceding the October 2021 survey, it was repeatedly out of substantial compliance with program requirements.  Deficiencies were cited at scope and severity levels E (pattern of substantial noncompliance that causes no actual harm with the potential for more than minimal harm) and F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm), as well as G (isolated instance of substantial noncompliance that causes actual harm but does not pose immediate jeopardy to resident health and safety).  CMS Ex. 15 at 2-5. 

Petitioner points out that it had not previously been cited for abuse, 42 C.F.R. § 483.12 (Tags F600, 607).  P. Br. at 24.  This may be, but, significantly, the facility was cited for quality-of-care deficiencies during the surveys completed on December 31, 2020 and July 29, 2019.  CMS Ex. 15 at 3, 4.  In a survey ending December 31, 2020, its substantial noncompliance caused actual harm.  The facility’s history alone justifies the relatively minor increase in the penalty amount above the minimum. 

Petitioner does not claim that it is unable to pay the penalty imposed. 

Applying the remaining factors, I have discussed in some detail the facility’s significant failure to provide R1 with the services he needed to prevent physical harm.  Staff did not adequately supervise him, and the facility did not ensure that his environment was safe.  His injuries required extensive medical intervention and admission to the Intensive Care Unit.  For its shortcomings, the facility is culpable.  I therefore conclude that the penalty imposed is reasonable. 

Conclusion

From October 29 through December 5, 2021, the facility was not in substantial compliance with Medicare program requirements.  The penalty imposed – $760 per day – is reasonable. 

Endnotes

¹  As I explained in the order, although the federal rules do not apply directly to these administrative proceedings, in considering summary judgment, I am “procedurally and substantively guided by Rule 56.”  Civil Remedies Division Procedures § 19; see Livingston Care Ctr. v. U.S. Dep’t. of Health & Human Servs., 388 F.3d 168, 172 (6th Cir. 2004). 

²  I have admitted the testimony and considered the additional facts.  However, as I discuss, I did not find these facts material.  Indeed, they are marginally relevant, at best. 

³  Deciding a case based on the written record does not mean that it is decided without a hearing.  In reviewing administrative appeals, courts recognize that, by considering the evidence and applying the law, the ALJ has granted the petitioner a hearing, even if that hearing was not an “oral” or “evidentiary” hearing.  See 42 C.F.R. § 498.66(d) (on conducting a hearing without oral testimony); CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir. 1994) (holding that a “paper hearing” satisfies statutory requirements for “notice and opportunity for hearing.”). 

⁴  Initially, CMS also objected to P. Exs. 6 and 8, unsigned witness declarations.  Petitioner subsequently corrected the problem, and CMS apparently withdrew its objections.  P. Response to CMS Objections at 5. 

⁵  Curiously, although Petitioner argues that I may review the scope-and-severity findings for the G level deficiencies, it does not specifically argue that CMS’s finding of actual harm is incorrect (except for claiming that the facility was in substantial compliance).

⁶  The scope and severity of the deficiency is, nevertheless, not irrelevant.  In determining whether the amount of the CMP is reasonable, I consider (among other factors) the scope and severity of the deficiency.  42 C.F.R. §§ 488.438(f), 488.404.  See discussion below. 

⁷  My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.  

⁸  The long-term-care regulations were revised in October 2016, and the regulation governing abuse and neglect was moved from section 483.13 to 483.12.  81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (July 13, 2017).  Its substance was unchanged. 

⁹  When the regulations were revised, the requirement that facilities minimize the risk of accidents was moved from 42 C.F.R. § 483.25(h) to 483.25(d).  81 Fed. Reg. 68,688 (Oct. 4, 2016); 82 Fed. Reg. 32,256 (Jul. 13, 2017).  Again, the substance of the requirements did not change. 

¹⁰  This is another of the facts that Petitioner wanted added to my list of undisputed facts.  P. Response at 1.  The fact is not exactly uncontradicted; Nurse Aide Pacheco told the surveyor that R1 was alone on the patio.  CMS Ex. 4 at 4.  On the other hand, the fact is not material. 

¹¹  The POLST form is a written medical order from a physician, nurse practitioner, or physician assistant that specifies the types of medical treatment the resident wants if he becomes seriously ill.  It is more general than the DNR order, which applies only when a person does not have a pulse, is not breathing, and is unresponsive.  Because R1 was breathing and had a pulse, his DNR did not apply, although it seems that staff did not understand this.  See CMS Ex. 3 at 64 (writing that R1’s son wanted him sent to the ER, notwithstanding his DNR); CMS Ex. 6 at 8 (Labadlabad Decl. ¶ 22). 

¹²  One additional fact Petitioner asked me to consider in granting summary judgment or deciding the case on the written record is that staff did not initially notice the blisters because they were under the resident’s clothes.  P. Response at 2-3.  I acknowledge that the change-of-condition report says that staff removed the resident’s clothes and noted the blisters.  Petitioner does not explain why it finds this significant.  If anything, it establishes how dangerous R1’s exposure was; even protected by clothing, including a long sleeve shirt (CMS Ex. 20 at 1), his skin was so badly burned that it blistered.

¹³  How long R1 sat on the patio is difficult to determine.  Facility staff didn’t seem to know, and the information they conveyed to EMS and hospital personnel varied widely – from “30 to 40 minutes” to four hours.  CMS Ex. 10 at 1, 2.  Although I am not convinced that staff accurately reported the times of their observations, based on all the evidence and statements, R1 probably spent about an hour in the sun. 

¹⁴  The facility reported the incident on June 24, 2021, four days after it occurred.  CMS Ex. 20 at 3.  The timing of this reporting is not consistent with federal regulations, which require the facility to report violations involving abuse or neglect “immediately,” but not later than two hours after an allegation is made, if (as here) the allegations involve abuse or result in serious bodily injury.  If the events do not involve abuse or result in serious bodily injury, they must be reported within 24 hours.  42 C.F.R. § 483.12(c)(1).  The facility’s failure to report as required, by itself, may put the facility out of substantial compliance with the more general abuse and neglect regulation.  Beverly Health Care Lumberton, DAB No. 2156 at 15 (2008), aff’d Beverly Healthcare Lumberton v. Leavitt, 338 F. App’x. 307, 314-15 (4th Cir. 2009).  However, CMS has not pursued the issue, and neither do I. 

¹⁵  According to Petitioner, R1’s “exercise” included “staring through the glass window of the room of the rehabilitation gym.”  P. Br. at 13, citing P. Ex. 8 at 2 (Pacheco Decl. ¶ 7).  Staring out a window is not exercise and is hardly an activity.  The regulations require the facility to provide “an ongoing program to support residents in their choice of activities,” based on the resident’s assessment and care plan.  The activities must be supervised by a qualified professional.  42 C.F.R. § 483.24(c).  R1’s assessment does not seem to include specific activities, but it describes as “very important” his having reading materials, listening to music, being around animals, doing things with groups of people, engaging in his favorite activities, and participating in religious services.  CMS Ex. 3 at 31.  The witnesses’ descriptions of R1’s usual “activities” suggest that the facility may not have been providing him with the level of meaningful activities required by the regulation.  However, CMS did not assert a deficiency under section 483.24(c).